author: Brady, J.: Davis, P. J.

text:
    WILLIAM B. HOLLISTER, Respondent, v. JACOB L. ENGLEHART and others, Appellants.

      Recovery — must be on cause of action set forth in the complaint.

    In this action, brought to recover the price oí high wines sold and delivered to the defendants, one defense was, that the wines were sold to be redistilled, the profits arising therefrom to be divided between plaintiff and defendants, and that while in the latter’s possession they were destroyed by firo. Upon the trial, evidence was given, without objection, tending to prove that insurance companies had paid to the defendant losses upon a portion of the said wines, and that he had promised to pay plaintiff- therefor as soon as he received his claims from the companies. In an answer to a question by a juror, the court charged that, if they believed that the defendants had made such a promise, and received the money, plaintiff was entitled to recover.

      Held, that the charge was erroneous, as it allowed the plaintiff to recover upon an entirely different cause of action from that set forth in the complaint.

      Arnold v. Angelí (62 FT. Y., 510) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying amotion for a new trial made upon tbe minutes of tbe justice before wbom tbe action was tried.
    Tbe complaint alleged a sale and delivery of liigb wines by tbe plaintiff to tbe defendants, of tbe value of $3,848.32; tbat a payment of $400 on account was made tbe day of tbe sale, leaving a balance of $3,448.32 due, for wbicb, with interest, tbe plaintiff demanded judgment.
    Tbe answer denied all tbe allegations of tbe complaint, and set up tbat they bad received tbe goods to rectify and distill into alcohol, under an agreement tbat, when so distilled, tbe alcohol should be sold and tbe profit shared between tbe plaintiff and tbe defendants ; tbat afterwards, and before any sale bad been effected, the distillery of tbe defendants was burnt up, without their fault, and tbe goods wholly destroyed.
    Tbe case was tried before Judge Lawrence and a jury. There was conflicting evidence upon tbe question whether tbe transaction between tbe parties was a sale or an arrangement by wbicb, after distillation, tbe goods were to be sold by tbe defendants for joint account. Evidence was given tending to show tbat defendants bad promised to pay tbe plaintiff as soon as they arranged with tbe insuran.ce companies; and that they had received from the companies payment for a portion of the high wines so destroyed.

      Albert Cardoso, for the appellants.

      Edww, Blcmkman, for the respondent.
   Brady, J.:

This is an action to recover for goods sold and delivered, and was tried as such on the plaintiff’s complaint and evidence. The promise of payment to which the plaintiff testified, was made, as he shows, in that connection.

The defendants, however, by answer and proof, insisted that the wines alleged to have been sold were delivered to them for reclistillation, on shares, and that the profits subsequently accruing upon their sale were to be divided.

The learned justice charged, on this defense, that if the wines were delivered upon this understanding they were at the risk of the plaintiff and he could not recover their value in this action.

He also charged that if there was not an absolute sale of the wines, the defendants were entitled to a verdict.

The question which the juror asked namely: “ While we might believe it was a copartnership arrangement in regard to the sale, and not an absolute sale, yet, if the defendants received a certain amount from the insurance company for this loss, is the plaintiff entitled to the amount that they received,” and the answer given by the court as follows: “ If they promised, as he says they did, that if they should receive the claim from the insurance company, they would pay Hollister, he is entitled to that,” was inconsistent with the views previously expressed and changed the entire cause of action. This could not be done. The court of last resort has so declared. (Arnold v. Angell, 62 N. Y., 510.)

The promise of the defendants, it may be further said, was not predicated of any partnership result or joint profit or interest, but of the alleged sale and founded npon the receipts of indemnity for the loss of the goods by fire, from the insurance company, and which wotdd put the defendants in funds to pay for them. Whether under a proper form of action the plaintiff might not recover in whole or in part, it is not necessary to declare.

He has put himself on the record, as an absolute vendor, and must stand or fall in this action on that basis. I think the judgment should be reversed.

Daniels, J., concurred.

Davis, P. J.

(dissenting):

None of the exceptions to the admission or rejection of evidence taken in the course of the trial are of sufficient importance to call upon us to disturb' the verdict. The action was for a quantity of high wines, alleged to have been sold and delivered by the plaintiff to the defendant. The answer denied the sale and delivery of the goods, and the indebtedness for that cause ; and for a further defense set up, that the high wines were delivered to the defendants as distillers, who were to rectify and distill the same into alcohol, and the profits were to be divided, the defendants having one half thereof for their services in distilling and selling the same; and that while the wines were at their rectifying house, in the process of distillation, their premises were destroyed by fire, and the 162 barrels of high wines were wholly consumed and lost.

In the course of the trial, the proofs of loss furnished to the several insurance companies in which the defendants had policies of insurance upon their stock, were put in evidence, and in the schedules of property accompanying the proofs 8,411-3%°^ gallons of bonded whiskey, of the aggregate value of $3,364.36, were stated as part of the destroyed property. This was proved to be the high wines in question, and it was proved that defendants agreed to pay for the same whenever they received the insurance money. They claimed, however, that no insurance moneys had ever been paid to them ; but the evidence on that subject was conflicting, and it appeared with substantial clearness, in respect to one of the companies certainly, that payment was made upon the schedule which contained these whiskeys. The loss was compromised with the companies, but there was enough to justify the jury in finding that the compromise embraced the item for the whiskey. The whole amount of plaintiff’s right to recover, if he established the sale, was said by the court to the jury to be $5,347.09, principal and interest, and the court instructed the jury that if they found for the plaintiff on the question of sale, their verdict would be for that amount. On this instruction a juror made this inquiry of the court: “While we might believe it. was a copartnership arrangement, in regard to the sale, and not an absolute sale, yet if the defendants received a certain amount from the insurance company for this loss, is the plaintiff entitled to. that amount that they received ? ” To which the court replied : “ If they promised, as he says they did, that if they should receive the claim from the insurance company, they would pay. Hollister, he is entitled to that.” To this reply the defendants’ counsel excepted, saying: “The complaint is for goods sold and delivered upon a particular day, and not based upon any agreement to pay for a proportion of any insurance money even if they received it on account of this claim, and therefore I except to that.”

The jury rendered a verdict for the plaintiff for $2,600.

It is very apparent that this verdict was rendered for the amount, and interest thereon, received by the defendants from the insurance company for the high wines in question. A motion was made for a new trial on the minutes, which was subsequently heard and-denied, the learned judge giving the following as his reason for such denial: “ In this case I am not prepared to say that the court has not the power to amend the complaint so as to conform to the evidence, and such being the case, the motion to set aside the verdict and grant a new trial is- denied.” From this statement it appears that the only substantial question in the case is, whether the exception to the reply of the court to the juror was well taken; and whether the court had power to amend the complaint to conform to the evidence.

No objection whatever was taken to the evidence in relation to the policies of insurance, the claims for loss, the payment by the companies, or the agreement of the defendants to pay in case they received the insurance on the high wines from the insurance companies. All this evidence seems, however, to have been competent under the pleadings, as tending to prove the alleged sale and promise to pay, and therefore, in accordance with Arnold v. Angelí (62 N. Y., 508), the defendants cannot be said to have waived the point by not objecting to the evidence. The authorities on the subject of the power to amend are extremely conflicting, and an attempt to reconcile them would be fruitless.

A rigid application of the case just cited to this case would require a reversal of the judgment, but we are of opinion that this may be obviated, and justice be done without the necessity of a new trial, by regarding the verdict as a finding of a sale by the plaintiffs to the defendants, of so much of the whiskey as was embraced in the proofs of loss, at the price the jury found was received for it from the insurance company by the defendants. The defendants treated the whiskey as then- own, and claimed and demanded their loss upon it as their own property. It entered into the aggregate loss upon which a compromise was effected, and a per centage paid by the respective companies. And a promise to pay it, if it should be received, was distinctly proved, both by the plaintiff and one of the defendants.

There was no injustice in construing this to operate as a sale from the plaintiff to the defendants of the whiskey destroyed, at the price received and agreed by them to be paid to the plaintiff for it; and it is not a fatal departure from the allegations of sale contained in the complaint, that the quantity and price are different than those alleged. Nor is the time alleged in the complaint at all material. The allegations of the complaint would be held to be sustained upon the trial if the plaintiff, for instance, had proved the delivery of the whiskey for the purpose of distillation, and a subsequent agreement of sale, made at any timej though different from that alleged in his complaint, and a promise to pay for the same at any price- agreed upon, although greater or less than the price named in the complaint. Under all the circumstances of the case, we are inclined to the opinion that the court might have allowed the amendment suggested in the reasons assigned for denying the motion for a new trial, so that the plaintiff would clearly be entitled to recover, secunda próbata et allegata. (Tyng v. Commercial Warehouse Co., 58 N. Y., 308; McKecknie v. Ward, id., 541; Coleman v. Playsted, 36 Barb., 21; Turnow v. Hochstadter, 7 Hun, 80.) The judgment and order should therefore be affirmed.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Beaut, J.:

license: Public Domain

text:
    SARAH BROWN, Plaintiff, v. DANIEL R. LYDDY, Defendant.

      Lease — covenants of renewal — • Appraisers to ascertain value — right of parties to appearand be heard before— “Asm'tain” — meaning of.

    A lease, containing a privilege of renewal, provided that if the parties were unable to agree upon the rent, an arbitrator should be chosen by each party, the two to determine the value of the lot, and allow five per cent thereon as rent; and if they were unable to agree, that they should choose an umpire whose decision should be final. It also provided that, if a renewal was refused by the lessor, he should pay to the lessee the value of the building on the lot, to “be ascertained by three disinterested persons, on oath, to be chosen as aforesaid. ”

      Held,

    That it was intended, that the value of the building should be ascertained in the same manner as that of the lot for the purpose of fixing the rent.
    That the parties were entitled to appear and be heard before the arbitrators as to the value of the building.
    That even if a party waived his right to appear before the two original arbitrators, he was still entitled to appear and be heard before the umpire, and that an award by the latter, where a party had had no opportunity to appear before him, was void.
    Exceptions ordered to be beard in tbe first instance at General Term after tbe dismissal of tbe complaint at Circuit. Tbis action was brought by tbe plaintiff to recover tbe appraised value of a building, alleged to bave been made in accordance witb the provisions of a certain lease. Tbe case was tried at tbe New York Circuit, and, after tbe plaintiff’s case was closed, upon motion of defendant’s counsel, tbe court dismissed tbe complaint,' and ordered tbe exceptions to be heard in tbe first instance at tbe General Term.
    Tbe plaintiff, Sarah Brown, held, by assignment under a certain lease froin tbe Bemsen estate, tbe bouse No. 61 Monroe street, New York, tbe lease containing’ certain covenants as to its renewal. It was provided, however, by tbe lease, that if tbe lessor should elect to grant a further renewal of tbe lease to tbe lessee, that tbe rent of tbe premises, under such renewal, if not agreed upon between tbe parties, was to be ascertained as follows : Each party “ shall choose a disinterested person to ascertain tbe same, which persons so chosen shall themselves, respectively, be owners, in fee simple, of one or more lots of land in the neighborhood of the one hereby demised, and shall, in making their award or determination in the said premises, under oath, appraise and value the said lot or lots of land hereby demised, at its or their full and fair worth or price at private sale, considering the same as an unincumbered vacant lot or lots, and five per cent on the amount of their said appraisement or valuation shall be the annual rent of the said lot or lots of land for such further term; and in case the arbitrators should differ in the amount of their appraisement or valuation as aforesaid, they shall then choose an umpire, qualified as aforesaid, whose decision, under oath, shall fix and determine the same, and five per cent on the amount of the appraisement or valuation so fixed and determined shall be the annual rent of the said lot or lots of land for such further term.” And it was further mutually covenanted and agreed that the lessor should “ have the full liberty and choice, either to grant a second renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent, payable quarterly, as shall be ascertained and determined in the manner aforesaid, or to pay unto the said party of the third part, his executors, administrators or assigns, the value of the said brick dwelling-house, or the value of such other brick dwelling-house of like description as shall then stand in its stead, which value shall be ascertained by three disinterested persons, on oath, to be chosen as aforesaid.”
    On the 31st March, 1875, the defendant (Lyddy) became the owner of the fee, subject to said lease, and on the 1st May, 1875, he elected not to grant any further renewal of the lease.
    The plaintiff and lessee appointed William Colligan as her arbitrator under the lease, and the lessor (Lyddy) appointed one Charles McManus as his arbitrator, and these two, after a disagreement, selected one Bernard Maguire, as a third party, to ascertain the value of the building. Maguire made an award in writing. The defendant and lessor refused to be bound by the award in question, alleging the following reasons :
    First. Because the value of the building in question should have been ascertained by three dásmterested persons, as provided by the lease, and not by two.
    Second. Because none of the alleged arbitrators took the usual and necessary oath of office, as provided by tbe lease, as this was necessary to confer jurisdiction, and was not waived.
    Third. That after tbe alleged disagreement of McManus and Colligan, and before tbe alleged selection of Maguire, tbe lessor was not notified of tbe same, and bad no knowledge thereof.
    Fourth. That tbe alleged selection of Maguire as a third party was without tbe authority, notice, consent or knowledge of tbe lessor, and was not in writing.
    Fifth. That tbe third party, Maguire, never took any oatb, and never notified tbe lessor of bis appointment, or of tbe time and place of hearing tbe proof of tbe parties as- to tbe value of tbe building, and that no such proofs were taken by him, etc.
    Sixth. That McManus, who is alleged to have acted as arbitrator for tbe lessor in tbe first instance, withdrew and refused to act before Maguire and Colligan made tbe pretended award in question.
    Seventh. That Maguire and Colligan, who signed tbe alleged award in question, acted with partiabty, prejudice, etc., in making tbe same, and were improperly influenced by tbe attorney for tbe lessee, who brought them to bis office, and there prepared tbe same with bis own band and then procured them to sign it.

      Geo. W. Lord, for tbe plaintiff.

      John A. Goodlet, for tbe defendant.
   Beaut, J.:

On tbe 20th of July, 1833, Henry Remsen and others leased to Seth Godfrey tbe lot now known as 67 Monroe street, for tbe term of twenty-one years, with privilege of renewals. There was a covenant in tbe lease that if at tbe expiration thereof, or any renewal thereof, tbe lessors should elect not to grant any further renewal, tbe lessors or their assigns would pay to tbe lessee or bis assigns tbe value of tbe brick dwelling then erected on tbe lot. On tbe 31st day of March, 1875, tbe defendant Lyddy became tbe owner in fee of tbe demised premises, subject to the conditions of said lease, and on tbe 8th day 5f February, 1864, all tbe interests of tbe original lessee became vested in the plaintiff. Mr. Lyddy elected not to grant any further renewal, and thereupon tbe parties proceeded to select appraisers to ascertain the value of said house, in the manner provided for in the lease. Mr. Lyddy selected Charles McManus as his appraiser, and Mrs. Brown selected William Colligan. The appraisers so chosen were unable to agree as to the value of the house, and thereupon they selected Bernard Maguire as umpire. On the 18th day of June, 1875, Mr. Maguire made Ms certificate or award, in writing, appraising the value of the house at $5,600. Notice thereof was given to the defendant, but he declined to pay the amount, and thereupon this action was commenced upon the covenant contained in the lease, and the certificate of Mr. Maguire was offered in evidence upon the question of value. After the appraisers had been selected the defendant requested Mr. Colligan to meet Mr. McManus at Mrs. Brown’s house, No. 67 Monroe street. All the parties met there, including Mr. Lyddy, and after some general conversation as to the value of the house Mr. Lyddy and Mrs. Brown were requested by the appraisers to withdraw from the room, so that the latter might proceed to make the appraisement. No request was then made by the defendant that the appraisers should be sworn, or that he should have an opportunity to procure witnesses. It further appeared, however, that Maguire never notified the defendant of his appointment, or of any time and place of hearing as to the value of the building, and that no such proofs were taken by him. The defendant’s counsel moved to dismiss the complaint on the grounds which will be considered. The motion was granted, and plaintiff excepted. The motion to rHs-misa the complaint was ujron the grounds that there had been no appraisement made according to the lease or the terms of its provisions, and further, that Mr. McManus did not take any oath. The first proposition stated is founded upon the theory that an award could not, under the provisions of the lease, be made by less than three disinterested persons who should be sworn prior to entering upon the discharge of their duty. The covenant, in reference to it, leaves no doubt of the manner in which the arbitrators or appraisers should be chosen, and should perform their duty. It is provided that if, upon a renewal of the term demised, the parties could not agree upon the rent to be paid, each party should choose a disinterested person to ascertain the same, and declared that the persons so chosen should respectively be owners in fee simple of one or more

lots of land in the neighborhood of the lands demised, and further that in making their award or determination, under oath, they should appraise the value of the lot at its full and fail* worth or price at private sale, considering the same as an unincumbered vacant lot or lots, and that five per cent on the amount of their appraisement or valuation should be the annual rent of the lots for such further term. It also declared that in case the arbitrators should differ in the amount of their appraisement or valuation they should choose an umpire qualified, as aforesaid, whose decision, under oath, should fix and determine the same, and that five per cent on the amount of the appraisement or valuation so fixed and determined, should be the annual rent of the lots of land for such further terms. It was further covenanted that the lessors should have full liberty and choice either to grant a second renewal of the lease, or pay to the lessee the value of the brick dwelling-house which should then be standing in its stead, which value, as the lease declares, shall be ascertained by three disinterested persons, on oath, to be chosen as aforesaid. The covenant would seem at first blush to contemplate the selection of three persons -in Imvme to make the value, but such was not the intention, because the persons designated are to be chosen as aforesaid. There was no provision, as aforesaid, for selecting three persons, unless the two to be, chosen by the parties were unable to agree, in which case the third was to be designated by the two. If this mode of procedure were observed then three persons would be named or chosen, as aforesaid, and the design carried out by which the system of designation and arbitration would be observed, namely, by the selection of an umpire if the two appraisers named by the parties should not agree. If the words “ as aforesaid ” have any value they accomplish this result. If they have not, then the value is to be determined by three persons, and there is no provision in case they do not agree, by which a final appraisement can be made. They should then all join. (Cope v. Gilbert, 4 Denio, 347.) This was not the intention of the parties, and is not in harmony with the scheme adopted and expressed. It was that in reference to the value of the building as well as to that of the house (lands), the same mode of ascertainment should prevail. The question thus discussed is one of construction, and it presents no difficulty upon reflection. Having arrived at this conclusion, it follows that the theory of defendant stated cannot be sustained. The proposition, however, involves a further consideration. It is claimed by it that there had been no appraisement made, according to the lease or the terms of its provisions. The appraisers, as we have seen, were to ascertain the value, but in what manner is not stated, whether by the exercise of their own knowledge and judgment or by a hearing at which the parties could produce witnesses. The word “ ascertain,” however, has its meaning, and, therefore, its force. To make sure or certain; to fix; to establish; to determine; to settle, are the definitions of that word, according to Worcester, and this would seem to demand the observance of the usual mode of investigation in order to establish, to determine, to settle the value. The right of the parties to a hearing, and to produce witnesses, is one of the established privileges (Elmendorf v. Harris, 23 Wend., 628), although it may be waived by them. The courts would not declare that such a right did not exist, unless the terms of the submission so provided, or a waiver, was clearly demonstrated. (Day v. Hammond, 57 N. Y. R., 479.) In this case it may appear that the waiver of this right to be heard before the two first chosen was sufficiently shown, but there is no warrant for saying that the same right to be heal'd before the umpire was waived; there is no justifying such a conclusion. The right to be heard before him is co-equal with that to be heard befor§ the others. If, in other words, a right to a hearing exists at all, it extends to the umpire or third person selected, when the others fail to agree. This, as a rule of law, seems to have been decided by the court of last resort, and is conclusive of this appeal. (Day v. Hammond, supra.) This view makes it unnecessary to examine any other question, because its application rendered it obligatory, when the original appraisers failed to agree, to give notice to the parties that they might proceed either to proofs or elect to waive them, depending upon the judgment of the umpire alone. This action was brought upon the award, as we understand the pleadings, and the .conclusion arrived at in regard to that document renders it necessary to affirm the judgment. The plaintiff is not deprived of further efforts to obtain compensation, and it may be that it can be accomplished by a renewal of the arbitration proceeding, or amendment- of the pleadings as she may be advised.

New trial denied.. Defendant is entitled to judgment, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Ordered accordingly.


author: Brady, J.:

text:
    JAMES J. GARVEY, Executor, etc., Appellant, v. JAMES McDEVITT, Trustee, etc., Appellant, MARGERY FLYNN and others, Respondents.

      Trusts and powers in trust — ■ Illegal suspension of the power of alienation.

    A testator by his will directed that his executors should, at the expiration of f our years after his decease, sell all his real estate and pay over the proceeds thereof to his residuary legatee, and that during said time his executors should invest the same and accumulate the net income thereof for the benefit of the same person. Held,

    That the trusts were invalid as suspending the power of alienation for a longer period than that allowed by law.
    That as they illegally suspended the power of alienation they could not be sustained as powers in trust,
    Appeal from a judgment rendered at the Kings county Special Term. Tbe action was brought by an executor to obtain a construction of a will, tbe material portion of wbicb appears in tbe opinion of tbe court.

      Jesse Johnson and Abraham Lott, for tbe appellant McDevitt.

      8. P. Wash and T. B. Hewitt, for tbe executor.

      Ohajwneey Shaffer, Abel Ooofo, Q. H Badeau and John B. HasJcm, for tbe respondents.
   Brady, J.:

This case was sent to us from tbe second judicial district, tbe two judges presiding at tbe General Term, when tbe appeal was beard there, differing radically upon tbe questions involved. Many propositions arising upon the provisions of the will were elaborately argued, so that the revelations made by the case should receive consideration in each aspect in which they presented themselves. In the view, however, which is taken of the controversy, it becomes necessary to examine but one only, because the determination of that disposes of the appeal. The will itself presents the important question without reference to exterior facts, and the portions of it which demand consideration, and out of which it springs, are as follows:

“ Fifth. All the rest, residue and remainder of my personal estate, of whatsoever kind and nature, I give and bequeath to the Roman Catholic bishop of the diocese of Raphoe, parish of Rye, county of Donegal, Ireland, in trust, nevertheless, for the purposes as hereinafter mentioned.
Sixth. I order and direct my executors hereinafter named, or such of them as shall act, or the survivor of them, at the expiration of four years after my decease, to sell, either at public or private sale, and for the best price they can obtain for the same, all my real estate, howsoever and wheresoever the same may be situated, and to give good and sufficient deed or deeds for the same, and pay over the proceeds arising therefrom, after paying the expenses of the sale thereof and all liens and incumbrances thereon, to the said Roman Catholic bishop of the diocese of Raphoe, parish of Rye, county of Donegal, Ireland, in trust, nevertheless, for the purposes hereinafter mentioned.
“ Seventh. I hereby order and direct, and it is my will, that the money bequeathed and ordered to be paid to the said bishop of the diocese of Raphoe, in and by the fifth and sixth items of this, my will, shall be used by him for the following purposes, namely: For the purchase of a site for and the erection and maintaining of a school-house thereon for the benefit of the Roman Catholic children of the parish of Rye, said school to be erected and built in the parish of Rye, county of Donegal, Ireland, to have and to hold the same to said bishop and his successors forever.
Eighth. It is my will, and I hereby direct, that said school, to be erected and maintained under the provisions of the foregoing items of this, my will, shall be under the control and management of twelve respectable farmers of .the parish of Rye and the said bishop of the diocese of Raphoe; said farmers to be appointed by said bishop, and are to receive no remuneration for their services.
“ Ninth. It is my will an'd desire that the said school shall be named and called The Dougherty American Institute.’
“ Tenth. I order and direct that, until my real estate is sold as hereinbefore directed, my executors, hereinafter named, rent my said real estate, and, after paying all taxes, assessments, water rates, insurance and other charges thereon, to deposit the balance of the rent received from said premises in some good savings bank in the city of Brooklyn, and the said money so deposited by them shall form a part of my residuary estate, and be payable with the proceeds of the sale of the real estate as hereinbefore directed.”

Three opinions have been written in this case ■ — ■ one by Justice Barnard, who presided at the Special Term, against the validity of the trust, and one by each of the justices presiding at the General Term, namely, Justices Gilbert and Dykman. They all unite in declaring that the trust created by the sixth and tenth clauses is invalid, because it is in conflict with our statute against perpetuities. The power of alienation is suspended by it beyond the period allowed by law. Justice Gilbert, while admitting this, is decidedly of the opinion that it is, nevertheless, valid, as a power in trust, by virtue of the fifty-eighth and fifty-ninth sections of the statute (1 R. S., 129), which provide that where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, and that in every case where the trust shall be valid as a power, the land to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust. Justice Dykman discusses this proposition and rejects it. He thinks that the sections mentioned apply only to cases where express trusts shall be created for any purpose not enumerated in the statute, so that where an express trust has been created, which is enumerated, and is of a kind permitted, their provisions can have no application. And he has further expressed himself: “It certainly would be a very strange construction of this provision of the statute, to hold that in any case where a testator has impressed his property, with a trust of a nature and kind permitted by our statutes, but which cannot be carried out as a trust, because it suspends the power of alienation improperly, it may yet be carried out and executed as a power in trust. Under such a construction, a trust which fell under the condemnation of the statute against perpetuities would incur no peril, and that statute would be practically repealed. Such is not, and cannot be, the proper construction of this provision. The legislature provided that express trusts may be created for four purposes, which are clearly defined and enumerated, and abolished all others; but the acts which may be done under a power are not defined, and as it was manifest that express trusts might be created for purposes not enumerated, but which might be lawfully performed under a power, such trusts were made valid as powers and trusts ; but they must be such as are not enumerated in the fifty-fifth section.” This construction is in full harmony with the case of Downing v. Marshall (23 N. Y., 366).

These views state the result of an investigation of the subject, and are sustained by authority and by principle. The attempted trust is condemned by the statute. If all the other necessary elements to its success were present, it must fail because of the unlawful suspension of the power of alienation; and when it fails because of its absolute intrinsic invalidity, it fails in all respects. The language of the statute is : “ Every future estate shall be void in its creation which shall suspend the power of alienation for a longer period than is prescribed in this title ” (1 R. S., 723, § 14); and sections 58 and 59 only preserve trusts which authorize the performance of an act which may lawfully be performed under a power; bnt under a power no future estate can be lawful which, in its creation, shall suspend the power of alienation. The testator cannot accomplish indirectly what the statute declares he cannot do directly. The source of the power, in other words, must not be in contravention of positive statute law. It must rest on a legal foundation. If a trust prohibited by statute, and therefore void, can be carried out as a power, then, as suggested by Justice Dykman, the statute defeats itself. It contains provisions which, in effect, repeal the prohibition, and the design of the enactment is destroyed. So far as the courts have adjudicated upon this question, the rule deducible is, that a trust prohibited because it suspends the power of aliena-

tion is equally invalid as a power in trust. In the case of Hone’s Executors v. Van Schaick (20 Wend., 566), Justice Bronson said : “ Every estate is void in its creation, which is so limited that the absolute power of alienation may be suspended for more than two lives in being at the creation of the estate. The lives must be designated, and life must, in some form, enter into the limitation. No absolute term, however short, can be maintained. The testator attempted by means of a trust to receive rents and profits, to render his lands inalienable for a term, of which more than nineteen years remained unexpired at the time of Ms death. This he could not do. The statute had forbidden it. The whole trust estate, and the remainder limited upon it, are consequently void. (Coster v. Lorillard, 14 Wend., 265; Hawley v. James, 16 id., 61.) The power in trust to make partition at the end of the term is subject to the same objection as the trust. It works an illegal suspense of the power of alienation. That this may be the effect of a power in trust, and that the power will then be void, has been adjudged by this court in the cases already mentioned.” In this ease the power in trust works a suspension of the power of alienation because of the four years limitation or condition by which it is governed. (See, also, Elles v. Lynch, 8 Bosw., 478.) In Beekman v. Bonsor (23 N. Y., 317), CMef-Justiee Comstock thus briefly disposes of a kindred question to the one under discussion : “At the end of the fifteen years, the executors were authorized to sell the land and distribute the proceeds among the nephews and Meces. This would have been a lawful trust or power in trust, if the postponement of its execution for an absolute period of time did not suspend the power of alienation, in a manner which the statute does not permit. That suspension is fatal to this trust, also.” The same learned justice, in an elaborate review of the doctrine of powers, said : “And thus, as the old statute of uses, which was intended to abolish positive trusts, left the widest field for the creation of active ones, so our revision in abrogating all active trusts, except the few particularly specified, has reanimated them under the name of powers which are left without restriction, provided the purpose of the limitation or power be itself a lawful one.” (Downing v. Marshall, 23 N. Y., 380.)

The question thus considered seems to be decidedly adverse to the validity of the power in trust, and leads to the conclusion that tbe opinion of Justice Dykman is entitled to the greater weight, and that the judgment should, therefore, be confirmed. The provisions of the will establishing neither a valid trust nor power in trust, the design of the testator cannot be carried out.

In the case of Blanchard v. Blanchard (4 Hun, 287, affirmed in the Court of Appeals, September 25, 1877, no opinion being written), it was held, under a provision giving the use of a farm to the testator’s wife and children for seventeen years after his death, and directing his executors, within two yewi'S after the expiration of that time, to sell the farm and divide the proceeds among certain persons named in the will, that the power vested in the executors being a mere naked power of sale, did not suspend the power of alienation, and was valid. — [Rep.

The judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    FREEMAN D. MARCKWALD, Plaintiff, v. THE OCEANIC STEAM NAVIGATION COMPANY, Defendant.

      Removal of cause to TI. 8. court — waiver of right to insist upon — Heglegence— deviation of vessel from its cowrse — when it constitutes.

    The defendant applied to remove this action into the United States Court, and the motion was denied. No application was made to the United Slates Court to restrain the State courts from proceeding, nor was any reference to the application made at the trial at which defendant appeared by counsel and contested plaintiff’s claim. Upon appeal it was insisted that the State court had no jurisdiction, as the cause had been removed into the United States Court.

      Held, that, under the circumstances, this court would hot examine the question, whether the petition and accompanying papers did of themselves remove the cause; that the defendant, by acquiescing in the decision and jiroceeding with the trial, had waived his right to insist upon it.
    Upon the trial of this action, brought by the plaintiff to recover damages for injuries sustained by him through the wrecking of one of defendant’s vessels, in which the plaintiff had taken passage from Liverpool to New York, it appeared that the vessel deviated from the direct course for the purpose of entering Halifax, and that the vessel was thereafter wrecked on the coast of Nova Scotia, an unusual and unlikely event in a direct course from Liverpool to New York. The court charged that from the fact that the vessel deviated from its course, thereby subjecting the plaintiff to perils of the sea not in contemplation when the agreement was made, by one of which he was injured, a presumption of negligence on the part of the defendant arose and cast upon it the burden of explanation. Upon appeal from the judgment, held, that this charge was correct.
    Motion by defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    This action was brought to recover damages suffered by the plaintiff in the month of March, 1873, through the shipwreck of the steamer Atlantic off the coast of Nova Scotia. The plaintiff was a passenger from Liverpool to New York on board of the Atlantic at the time of the shipwreck, and the steamer was owned by the defendant. The vessel, it appeared, departed from the usual course from Liverpool to New York for the purpose of putting into TTa.li fax, and the plaintiff claimed this subjected him to perils of the sea not in contemplation when the agreement for carriage was made.
    Among other defenses the defendant alleged that, subsequent to the shipwreck and after the commencement of this action, the defendant filed a libel in the office of the clerk of the United States District Court for the pmpose of relief, under an act of Congress passed March 3, 1851. That after the commencement of this action an effort was made in this court, by the defendant, to remove' the action into the United States Circuit Court, and the motion in that behalf was denied, with costs.

      WilUam A. Ocmrsrn, for the plaintiff.

      Everett P. Wheeler, for the defendant.
   Brady, J.:

This action was brought to recover damages suffered by the plaintiff in the month of March, 1873, in consequence of the shipwreck of the steamer Atlantic, off the coast of Nova Scotia, and which was the result of negligence. The defendants did not deny the ownership of the steamer, and that the plaintiff was a passenger was admitted.

The main defense was to the effect, that subsequent to the shipwreck and after the commencement of, this action, the defendant filed a libel in the office of the clerk of the United States District Court for the purpose of relief, under an act of congress passed March 3, 1851. The answer and the supqfiemental answer show clearly the grounds of the defense sought to be made available in this action.

After the commencement of this action an effort was made in this court by the defendant, to remove the action into the United States Circuit Court, and the motion in that behalf was denied with costs.

Nothwithstanding the denial of the motion in this court, for the removal of this action into the United States Circuit Court, the defendant continued their efforts for relief under the said act of congress, and thereupon there was commenced by the defendant proceedings under the above-mentioned libel.

The plaintiff so far' answered the said libel, that a motion on his part was made before the Honorable Samuel Blatoheobd, district judge, which motion resulted in an order of the 23d day of December, 1873, whereby the order under the said libel was vacated so far as it in any way affected the plaintiff. It further appears by the case, that the defendant apparently disregarded the said order of the judge presiding at the court where the libel proceedings were instituted, and on the 29th day of December, 1873, obtained an order for a monition directing parties interested to make proof of their respective claims, in the appraised value of the amount of the interest of the defendant in the shipwrecked steamer, before the clerk of the United States District Court, etc.; and the said order and monition coming to the knowledge of the plaintiff, he took such notice thereof, that there was obtained from the presiding judge of the United States District Court, an order to the effect, that the said order of December 29, 1873, and the monition founded thereon, were, so far as the same or either of them affected the plaintiff, vacated, set aside and made null and void.

Yarious motions were made and exceptions taken at the trial by the defendant, but it resulted in a verdict for the plaintiff, and a direction of the court that the exceptions taken by the defendant should be heard in the first instance at the General Term of this court.

The questions which the defendant’s counsel supposed to be presented by this appeal have been carefully and elaborately examined, and the result stated in the brief submitted fully and ably. The counsel for the respondent indicates similar preparation, although all of the questions have not apparently engaged his attention. This may have been because of his confidence in the conclusion, that there was but one question really, and that the investigation of it must be favorable to his case. The discussion of the effect of a libel filed under the act of congress passed March 13, 1851, was extended upon the argument and is upon the briefs, but we are relieved from the consideration of that question, because the District Court in which the proceedings were conducted, on applications for that purpose, and after hearing the respective parties hereto, directed that the order made upon presentation of the defendant’s petition under the act mentioned, be vacated, so far as it in any way restrained, enjoined or restricted the plaintiff herein from the prosecution of this action, and so far as the said order in any way affected or concerned the plaintiff herein; and further, that the monition of January 2, 1874 and the order of 29th December, 1873, issued and made in said proceedings, so far as the same or either of them affected the plaintiff herein m cmy way, should be vacated, set aside and made null and void. The effect of these orders was to strike out the plaintiff herein as a party, and his claim was, therefore, not considered. It does not appear, from the case, why this was done. It is not, perhaps, material on this appeal. It is enough that, in the proceedings under the act of 1851, to limit the liability of the defendant to the value of the vessel and her freight, then pending, the plaintiff herein was not included. He was by distinct order excluded, and the preliminary and necessary formalities as to him were vacated, set aside and declared null • and void. The provisions of the act of 1851 (sv/jpra) are not, by mere force of their existence, a limit of the owner’s liability. It is necessary that he shall, by proper proceeding under its provisions, yield or surrender the vessel and freight to the payment of losses when adjusted as he solicits. (Norwich Co. v. Wright, 13 Wallace, 104.)

This conclusion disposes of all questions springing out of the contemplated application or use of the decree in the libel procedure against the plaintiff’s demand, and makes it unnecessary, therefore, to determine, whether, assuming it to have been regular, and to embrace the plaintiffs claim, the defendant, as a common carrier, having its home office in another country, and being a foreign shipowner, is entitled to the benefit of the provisions of the act of 1851. ('Sivpra,.) The defendant also urged, upon the appeal, as fatal to the jurisdiction of this court, that a petition had been presented under the act of congress of July 27, 1868, for a removal of this action to the United States Circuit Court, the prayer of which was denied. It does not ajipear from the case that this incident was referred to on the trial or then made use of in any mode. It does not appear, either, that any application was made by the defendant, in the federal court, to arrest the further progress of this case, which is suggested as the ju’oper practice in Bell v. Dix (49 N. Y., 232), if the State court, notwithstanding the proceedings to remove, still claim jurisdiction. The defendant proceeded to trial in the usual way ,• not only cross-examining the plaintiff’s witnesses, but examining witnesses on its own behalf, and in all respects acting as a contestant, according to the practice in actions at law.

Under such circumstances we do not feel called upon to examine the question whether .the petition to remove, and accompanying papers, accomplished that object as a matter of right. The defendant has waived all right to consideration by submission to the order denying the application, and to the jurisdiction at the trial. The point thus considered will not, therefore, avail the defendant on this appeal. We have examined the exceptions, and find one only which requires particular mention. The others are not well taken, and cannot be sustained. The exception alluded to relates to the doctrine of negligence, applicable to this case, as expressed by the learned justice presiding at the trial.

He held, that inasmuch as the vessel had changed her course from Liverpool to New York, for the purpose of putting into Halifax, and thus subjecting the plaintiff to the perils of the sea, not in contemplation when the agreement for carriage was made, and' inasmuch as the vessel was stranded on the coast of Nova Scotia, which was an unusual circumstance and out of the course of ordinary events, on a passage from Liverpool direct to New York, the presumption of negligence arose, and cast the burden of explanation upon the defendant.

This view of the law was predicated of the case of Caldwell v. New Jersey Steamboat Company (47 N. Y., 291), which sustains it.

The defendant attempted no explanation. It was sought to be shown that steamers sometimes went to Halifax for coal, but under what circumstances was not established. It was proved inferentially, also, that the captain in charge of the defendant’s vessel, was apprehensive that the coal he had was insufficient for the voyage, and changed his course for Halifax to get it, but such evidence is not reliable. If it were, it does not show him to be familiar with the coast of Nova Scotia; and we perceive from the case, when the vessel struck, he was in the cabin examining the chart, doubtless, in decided uncertainty where he was or where he was likely to be.

There is sufficient evidence in the case to show that the course he adopted to Halifax was dangerous. Indeed, it is well known that the coast of Nova Scotia is dangerous to the navigator, and although circumstances may render its perils less than keeping on at sea, when a port must be made, nevertheless it should be approached with great care, and navigated with great diligence, watchfulness and skill.

The learned justice gave the defendant the benefit of any exigency or emergency that would render such a deviation necessary. He said on that subject:

“ Of course, if any exigency of the voyage made it necessary for this vessel to depart from the accustomed route; if some unforeseen contingency which may sometimes happen, owing to the perils and the danger of navigation, required this change, it would have been justifiable and allowable. But there is no proof in this case that there was any reason or cause for this departure from the course of the ship; nothing in the condition of the vessel, its equipment, or any other cause, is given making this necessary.”

So far, then, as we can see, this being a useless, needless and unwarrantable departure from the course of the ship, and from the route over which the plaintiff was to be transported, for any injury which the plaintiff sustained in consequence of such departure .the company is responsible to him.

Ye think the rule of law adopted on the trial, on this subject, was correct. The position of the defendant’s vessel, without reason and without explanation of the cause, could awaken no other presumption than that of negligence. She was out of her course and in a dangerous locality, without capable guides. There was a wind storm, but it was not extraordinary, and sea-going vessels are prepared to meet and weather storms, if properly constructed according to modern revelations and officered and manned by men who know their business. If the vessel was by overwhelming force of wind or current blown or carried so far out of her direct course as to be where she was when she stranded, it was for the defendant to show it. But, as said before, no explanation was given which could be accepted. The rules applicable to common carriers when they undertake to carry human beings cannot be loosely applied or generously framed. We can secure greater safety, which is a high privilege and exalting duty, by holding such enterprises within strict bounds. Great care and great caution must be exacted and enforced.

Motion for new trial denied; plaintiff is entitled to judgment.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


author: Beady, J.:

text:
    In the Matter of the Habeas Corpus of GEORGE SAMUEL BARNETT, a Minor.

      Special proceeding — chap. 270 of 1854 — habeas corpus— costs,- when allowed.

    Where, upon the return to a writ of habeas corpus, a reference is ordered, witnesses examined and a decision rendered upon a hearing on the whole evidence, costs may he allowed, in the discretion of the court, as in a special proceeding, as provided by chapter 270 of 1854.
    Appeal from an order allowing costs to the relator.
    On the application of Eugenie Barber Barnett, the mother of a bastard child named George Samuel Barnett, the Supreme Court granted a writ of habeas corpus to obtain possession of said child from David Barnett, its putative father. Return was made charging gross improprieties on the part of the petitioner, to which a traverse was filed denying the charges, and making counter-charges against respondent. The issues thus joined were referred to William Sinclair, Esq., who reported in favor of the petitioner, and awarded the custody of said child to her, and afterwards such report was confirmed by tbe court, and, on the 26th day of August, 1876, an order was made confirming said report and awarding costs and disbursements of the proceeding to the petitioner; and, subsequently, such costs were adjusted by the clerk, as follows:
    Before order of reierence............................$25 00
    After order of reference............................. 15 00
    Trial, issue of fact................................ 30 00
    Trial, occupying more than two days.................. 10 00
    Costs of order confirming referee’s report.............. 10 00
    $90 00
    Disbursements:
    Referee’s fees.............................. $100 00
    Other disbursements........................ 5 25
    -- 105 25
    $195 25
    From this taxation of the clerk an appeal was taken to the Special Term, where it was affirmed, and from that order this appeal was taken.

      F. J. Fithicm, for the apj>ellant.

      Chas. Blanch/, for the petitioner.
   Beady, J.:

The question presented by this appeal is, whether the petitioner is entitled to costs because, as is insisted, this is a special proceeding, and, therefore, within the provisions of the act of the legislature passed in 1854 (Laws 1854, p. 593, chap. 270, § 3), which declared that costs may be allowed, in the discretion of the court, in special proceedings, and, where so allowed, shall be at the rate allowed for similar proceedings in civil actions. The learned justice who disposed of this matter thought costs should be awarded the petitioner and allowed them. The respondent below appeals. There is no adjudicated case in which costs have been allowed in proceedings on habeas corpus. The writ is one of right, and it has not been heretofore trammeled by any consequences, other than the failure

to obtain the object in view when it was applied for, which, sometimes occurs. It is, nevertheless, a special proceeding when it is made returnable in court and where, as in this case, it called into exercise the ordinary machinery of the court of law such as the appointment of a referee to take the testimony, the examination of witnesses pro and con. and the subsequent hearing in due form in court on the whole evidence ■ and the decision of the court thereupon. The Court of Appeals have held that a certiorari to review summary proceedings between landlord and tenant was a special proceeding under the act of 1854, supra, and that to the successful party costs might be awarded. (The People v. Boardman, 4 Keyes, 59.) In kindred matters, the same doctrine has been promulgated. (In the Matter of, etc., Rensselaer and Saratoga Railroad Company v. Davis, 55 N. Y., 145 ; In the Matter of Dodd, 27 id., 629; People ex rel. Van Rensselaer v. Van Alstyne, 3 Keyes, 35, and cases cited; People ex rel. Latorre v. O'Brien 3 Abb. Court of Appeals Cases, 559; In the Matter of the Bowery Extension, 12 How. Pr. Rep., 99.) In the Matter of Dodd, it was suggested that in order to make proceedings special under the act in question there must be a ligitation in court. In this case there were proceedings by contest as already stated. Although the writ of habeas corpus is a writ of right, and sacred to the cause and principles of liberty, it may nevertheless be abused or the remedy which it is issued to accomplish unjustly refused by the respondent. The writ in other words may be sued out vexatiously, or the refusal to surrender the person detained may be equally vexatious. Whether either of these features exist it is for the court to judge, and hence the discretion which must be called into play before costs can be awarded. If there be reasonable ground to warrant an application for the writ no costs should follow. If there be reasonable grounds for refusing to surrender the person a like result would ensue. This was doubtless all considered by the legislature when the subject of special proceedings was considered and passed upon, and in view of their character including the habeas corpus the conclusion was adopted to vest in the court conducting them a discretion to allow or disallow costs. In this case the costs would seem to have been justly awarded and the order granting them should be sustained. The costs allowed embrace, however, only the items for proceedings after petition and before trial and disbursements. (55 N. Y., Rep., sufra, 147.) Tbe order appealed from must be modified in tbis respect, therefore and as modified affirmed without costs.

Davis, P. J\, and Daniels, <L, concurred.

Order modified as directed in opinion, and affirmed as modified without costs.


text:
    CHARLES T. YERKES and others, Respondents, v. SAMUEL N. SALOMON, Appellant.

      Statute against betting and gaming — contract for sale of stoelc — when mid under.

    Where a contract is made ior the delivery or acceptance of stock at a future day, at a price named, and neither party at the time of the making of the contract intends to deliver or accept the shares, hut merely to pay the differences according to the rise and fall of the market, the contract is void under the statute against betting and gaining.
    In this action, brought upon a contract for the delivery of stock at a future day the plaintiff was asked whether, at the time of making the contract, he intended to tender or call for the stock or merely to settle for the differences. Held, that the question was proper as tending to show the intent of the plaintiff in making the contract, and that it was error to exclude the same.
    Appeal from a judgment in favor of the plaintiffs, entered by direction of the justice at the Circuit.
    The defendant made and, for a valuable consideration, delivered to the plaintiffs three contracts. By the first he agreed that the bearer might deliver to him, at any time within sixty days, 500 shares of Lake Shore Railroad Company, at sixty-six per cent, on one day’s notice; the defendant to have all intervening dividends or extra dividends. By the second, he agreed that the bearer might, at any time within sixty days, call on him for 200 shares of the stock of the Pacific Mail Steamship Company, at thirty-seven per cent; or, at his option, might deliver the same to him at the same price, within the same time, at one day’s notice; all dividends to go with the stock in either case.
    The third conti’act was like the second, except that it was for 500 shares of the Lake Shore Railroad Company, at sixty-five per cent.
    While these contracts were running, the defendant became insolvent ; and on being notified by the plaintiff that he intended to deliver to bim the stocks, said that he had failed and could not take them; and it was then agreed between them that the one day’s notice be waived, and that the contracts be settled on the market rate of that day; and a memorandum to this effect was indorsed on the contracts signed by the defendant. A few days after, the plaintiffs presented an account made up in accordance with this settlement, and defendant said it was right, and promised to pay it.
    These facts having been proved by the plaintiffs, the defendant moved to dismiss the complaint: First, on the ground that the contracts were void under the statute against betting and gaming; second, that no corporations or stock, referred to in the contracts, were shown to exist; and third, that if such were shown, it was not shown that they were corporations incorporated under the laws of the United States or of any of the States.
    The plaintiffs then put in further testimony as to the last point, and the motion to dismiss was renewed, and overruled, and the defendant excepted.
    The defendant introduced no evidence.
    The court ordered a verdict for plaintiffs, and defendant excepted.
    Upon cross-examination of the plaintiff, he was asked whether, at the date of the contracts, he had the stocks referred to in the contracts. This was objected to as immaterial and excluded, to which defendant excepted. Plaintiff was also asked if at the time the contracts were made, he -intended to tender or call for the stocks, or merely to settle for the differences. This was also excluded and defendant excepted.
    Plaintiff was also asked if, at the time the contracts were made, he had the stock, or had made an offer to deliver it, or given notice that he would deliver it on that day or the next. This was excluded and defendant excepted.
    The plaintiff was also asked whether at the time he wrote the indorsements on the contracts, and the defendant signed them, he was not to receive the difference between the price as mentioned in the contract, and the price as written on the back. This was objected to and excluded under defendants’ exception.
    The answer admitted the making of the contracts, but alleged that they were illegal and void as wagers, and in contravention of the statute against gaming and betting.

      John E. JDevelim,, for the appellant.

      Wm. G. Ohoate, for the respondents.
   Brady, J.:

The contracts were not assailable as in contravention of law because, the plaintiff assuming such to be the fact had not at the time they were made the certificate of stock in his possession. The act of 1858, chapter 184 so declares, and therefore the question asked one of the plaintiffs whether, at the date of the contracts, he had the stocks referred to, was properly excluded; and so the exclusion of a kindred question was correctly ruled upon. The plaintiff examined was, however, asked the following question: “ "Was it your intention at the time these contracts, or either of them, were made, to tender or call for the stock, or merely to settle upon the difference ? ” and on objection it was excluded. The defense interposed, as we have seen, was that the contracts were wagers, and if it was the intention of the parties to settle the difference, as they subsequently did, and not to deliver or accept the stock, the defense would be established on the authorities. The statute declares that all stakes, etc., made to depend upon any chance, casualty or unknown or contingent event whatever, shall be unlawful. And, further, that all contracts for or on account of any money or property, or thing in action so wagered, bet or staked, shall be void. The form of the contract does not decide the question, because it would not be difficult to make the contract relating to the bet apparently lawful, while the intent with which it was entered into was to avoid or evade the statute. It is not the form in which the trick or device is presented, but the intent with which it is planned. When the question was asked, therefore, as to the intent, the subject was opened and the inquiry was pertinent. The authorities are abundant upon the proposition that if neither party intended to deliver or accept the shares, but merely to pay differences according to rise or fall of the market, the contract is for gaming. (Grizewood v. Blaine, 73 Eng. Com. Law, 525 ; Brua's Appeal, 55 Penn., 298; Cooke v. Davis, 53 N. Y., 318; Camerons. Durkheim, 55 id., 425; Peabody v. Speyers, 56 id., 230; Bigelow v. Benedict, 16 N. Y. S. C. R., 429; Story v. Salomons, Com. Pleas, MS. opin., Van Hoesen, J.) Tbe intent of tbe plaintiffs was one step in tbe defense, and wben tbe attempt to prove it was rejected, tbe defendant secured tbe advantage of an exception. In Cassard v. Hinman (6 Bosw., 14) the question asked was, at tbe time of tbe making tbe writings between you and Cassan, was any thing said by Nathan (tbe broker) as to tbe performance by receipt and delivery of pork, or tbe settlement by payment and receipt of differences, and if so, what ? ” The question was excluded, and it was beld to have been erroneously ruled upon. Tbe inquiry was beld relevant to the defense, which was substantially that tbe contract was a wager. Tbe ruling considered demands, therefore, that a new trial be granted.

Ordered accordingly, with costs to abide tbe event.

Davis, P. J., and DaNiels, J., 'Concurred.

J udgment reversed, new trial ordered, costs to abide event.


text:
    LOUIS FRISBIE, Respondent, v. JAMES R. YOUNG, Appellant.

      Besident witness — exempt — from, arrest on process — not from service of summons.

    A resident witness is, while attending examination, exempt from arrest, "but not from the service of process. A different rule applies to non-resident witnesses.
    Appeal from an order denying a motion to set aside tbe service of a summons, on tbe ground that tbe same was served while tbe defendant was attending examination as a witness.

      Brodhead <& Wight, for tbe appellant.

      W. ¡S. Oowles, for tbe respondent.
   Beady, J.:

Tbe defendant was served with a summons while under examination as a witness de bene esse. He came from another State here, and. after bis arrival was advised that bis testimony was desired. He consented to appear, and bis examination was arranged by stipulation. It is shown that, if be bad not consented, compulsory process would bare been issued. It further appears, however, that he was a resident of this State at the time of the examination, according to his own statement then made, and his absence was, therefore, connected with business. He states, indeed, in the affidavit on which this motion rests, that he was not engaged in business in the city of Chicago, Illinois. As a resident witness, he was exempt onT/y from, rn'rest while attending for examination, and not from the service of process. Non-resident witnesses were discharged absolutely. (Graham’s Pr. [2d ed.], 130, and cases cited.) The privilege does not extend to non-bailable process, or process on which no bail is demanded. The cases of Lamkin v. Starkey (14 N. Y. S. C. R., 479) and Brett v. Brown (13 Abb. [N. S.], 295) do not conflict with this view. They were cases of non-resident or foreign witnesses, to whom, as we have seen, a different rule applies. The Revised Statutes exonerated witnesses from arrest, and subjected the persons arresting them to action and a penalty. (2 R. S., old paging, 402; 3 R. S. [6th ed.], 665.) The defendant being a resident of this State, it follows that he could be served with a summons which did not interfere with .his liberty. It was a non-bailable process.

The order made at Special Term was correct, therefore, and must be affirmed, with ten dollars costs and the disbursements of this appeal.

Davis, P. L, and Daniels, L, concurred.

Order affirmed, with ten dollars costs, besides disbursements.


author: Bbadt, J.:

text:
    SARAH H. BOSTWICK, Respondent, v. ADOLPH FRANKFIELD, Appellant.

      Qontt'aot of sale of land by landlord to tenant — effect of

    In 1870 tlie defendant leased to one Thrall certain lots for three years, and verbally agreed to sell them to him at any time during the term for their fail-market value. Thrall entered into possession and erected a church with defendant’s knowledge, by means of gifts and loans made to him. April 28, 1871, a contract was made, by which defendant agreed to sell the lots to Thrall for $35,000, which provided that if it were not carried out by Thrall by June 1, 1871, it should become void and of no effect. Thrall failed to carry it out by that date, and subsequent to the contract of sale rent was paid under the lease. March, 1872, defendant instituted summary proceedings for non-payment of rent, and was subsequently put into possession of the lots, and so remained until March, 1873, when he sold the lots for $52,500. Held,

    That the contract entered into in April, 1871, did not have the effect of destroying the relation of landlord and tenant existing between the parties.
    That all rights acquired thereunder ceased June 1, 1871.
    That the effect of the summary proceedings was to restore the defendant to the possession and absolute ownership of the land, free from all claims and claimants arising under the lease or the contract.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a trial of this action at Special Term.
    June 1, 1870, defendant, being tbe owner of three lots of land on tbe north side of Fifty-seventh street, between Fourth and Lexington avenues, in the city of New York, together seventy-five feet wide in front by 100 feet in depth, made a lease thereof to George E. Thrall, for three years from that date, at $1,500 per annum, with privilege of another year at $2,000 per annum; lessee to pay taxes and^ assessments. At that time said Thrall was a clergyman, and contemplated putting a church building on said property, which purpose was known to defendant, and in view of which Thrall says that defendant verbally promised him to let him buy the property during the term of the lease at a fair market value.
    In July, 1870, Thrall commenced to build his church, Frank-field, the defendant, being frequently present at the church building and advising with reference thereto. The building was finished February, 1871. Thrall’s first intention had been to move a frame building on these lots, but the fire laws prevented, and the materials had to be taken down and used in the new structure.
    Meanwhile, Thrall had obtained loans and gifts towards his church building. Mrs. Thrall, his wife (plaintiff’s sister), had put in $4,500, in the manner explained, and the plaintiff had put in $1,000 or $1,200, and the building had cost $23,000 or $24,000.
    April "28, 1871, after the building was finished, Thrall and defendant entered into a contract for the sale and purchase of the property for $35,000. The contract providing that, if it were not earned out by Thrall by June 1, 1871, it should become void and of no effect. Thrall did not complete the purchase, and subsequent to the making of the contract of sale, money was paid as rent under the lease.
    In October, 1871, Mrs. Thrall assigned her claim to plaintiff, and Thrall, thereupon (November 25, 1871) gave plaintiff his bond for $6,900, secured by mortgage on the lots, buildings, and on the lease of said church property, to cover the advances of both parties.
    Mechanic’s liens were filed against the church property in July and December, 1870, and judgment rendered in favor of the lienors on all the liens, September 14, 1871; execution was issued September 23, 1871, and the property was sold thereunder to plaintiff May 25, 1872, for $550. Sheriff’s deed to plaintiff, November 23, 1872.
    On March 27, 1872, defendant instituted summary proceedings before a district justice, to dispossess Thrall, upon the allegation that he, Frankfield, was landlord, and Thrall a tenant of the property holding over, after having made default in the payment of rent, etc. Thrall made default, and the marshal put defendant in possession; and he continued in possession until he sold it, in March, 1873, for $52,500.
    Plaintiff filed her complaint to enforce her equitable lien upon the property, and demanded payment of the amount advanced by her, or for a sale of the property, and the satisfaction of defendant’s lien, and payment to her of the residue.
    The action was tried at' Special Term 'and judgment rendered for the plaintiff.

      Charles Tracy, for the appellant.

      Herrvry 8. Btvrnett, for the respondent.
   Bbadt, J.:

The right of the plaintiff to recover in this action depends upon the right or estate of Thrall in the premises mentioned in the complaint. Thrall entered into the possession of them under his lease from the defendant, and under a promise that they would be sold to him at a price named ; and in due time the agreement for the sale was prepared and executed* by him and the defendant, his lessor. Thrall proceeded to build a church after his lease was given him, and prior to the contract of purchase, and when the contract was signed a large sum had been expended. The contract executed during the running of the lease, and therefore before its expiration, provided as follows : Unless this contract shall be carried out by Thrall by the first of June, 1871, the same and every thing herein Contained shall thenceforth be null and void and of no further effect.”

Thrall was not ready to perform his agreement at the time designated ; at all events, he did not appear to do it, and never at any subsequent time offered to do so. The defendant was ready. The question arises here at once whether, the default having been made, Thrall had any rights under the contract, which, for aught that appears, might be enforced ?

The contract itself determines the question. The default rescinded it unless the defendant waived the advantage gained. The authorities are not in conflict on the subject. (Canfield v. Westcott, 5 Cow., 270; Mancius v. Sergeant, id., 271; Church v. Ayres, id., 272.)

The estate secured by Thrall, by the contract, was equitable because it depended wholly upon the performance of the agreements on his part to be performed before any absolute interest vested ; he forfeited all under its terms unless he observed and fulfilled his engagement. (Cases, supra.)

The contract .thus interpreted, the question presents itself, whether its execution had the effect of destroying, by merger, the relation of landlord and tenant existing between the parties, Thrall and the defendant, at the time the lease was signed.

The general proposition bearing upon the subject is, that the equitable is merged in the legal estate, and not that the legal is merged in the equitable. The legal is the greater and the equitable the lesser, and it_is the greater interest which absorbs.

It is said that^he doctrine of merger is not favored at law or in equity, and often, if not always, depends upon the intent of the parties. (Millard v. McMullm, 12 N. Y. S. C. R. [5 Hun], 578; Van Nest v. Latson, 19 Barb., 604; James v. Morey, 2 Cowen, 246.)

If the intent which legitimately springs out of the transactions is to determine the question, the intent* was that Thrall should become tbe owner as well as the lessee of the premises; he was to enjoy the premises as a lessee with the fntnre • ownership for which the parties had agreed and which the defendant was willing should happen. He had, it may justly be said, some misgiving of Thrall’s ability to carry out the contract of purchase, because of the financial troubles existing with regard to the church, and in view of them determined that, as to the sale, he should not be burdened by tin. existing agreement unless he had the power to destroy it at once. This he seciued by the clause declaring it void on the failure of Thrall to complete, at the time appointed. But he did not. Nor did Thrall intend by such agreement, that their relations should change and all be forfeited ■ — ■ the term as well as the improvements. The right to acquire the higher title was consistent with the design of the parties to hold the lease intact and untouched by the contract of sale. The legal sale, if the intention was not apparent, would lead to the same result. A deed would seem to be necessary to change the estate of Thrall, who was in possession, under his lease, before the agreement was executed. (Millard v. MgMullin, supra.) Indeed, we have the fact that after the contract was made, rent was paid and received under the lease, and this bears with much force on the question of intent.

The learned justice, at Special Term, based his decision in favor of the plaintiff on the proposition that the contract operated as a merger of the lease, ■ and that the defendant, having dispossessed Thrall as a landlord, had improperly acquired' possession of the premises, which could only be done by or through Thrall’s failure to complete under the contract. The difficulty, aside from the views already expressed, in sustaining this conclusion, is that if the contract had the effect asserted, the defendant had the right, on Thrall’s failure to perform, to take peaceable possession of the premises at once, and without any legal proceedings, to remove the seeming effect of the contract. He had this right because the contract became void and every thing therein contained null, unless he waived the forfeiture. He did not do so; he regarded the contract as at an end and proceeded to obtain possession for the non-payment of the rent due ; thus while enforcing his renewed power as owner by Thrall’s failure, admitting the relation of landlord and tenant to be still existing, in which Thrall acquiesced.

The facts and circumstances thus considered from a legal standpoint, result in the conviction that the defendant did not, by any act of his, expose himself to any action, either by Thrall or any person deriving interest through or by him.

If the facts and circumstances are regarded from an equity standpoint, the defendant is not bound to do what he is asked to do. Thrall, under the lease, commenced the building. It is true that he did so under a belief that he could secure the fee of the land. In this he was not disappointed. The defendant carried out his promise and gave him the contract; he accepted it upon the terms and conditions contained in it, and when he had the opportunity to perfect the ownership of what he had voluntarily placed upon the defendant’s land he failed to do so, and failed equally to pay the rent, or seek relief until the premises were sold. There is present no element of fraud or wrong, except such as may be inferred from the appropriation of the improvements of Thrall, but these were not taken wrongfully. They were acquired by the exercise of legal rights. The defendant did not urge the expenditures, nor did he refuse, when asked to make the necessary agreement,- to perfect their value in the person who designed to secure them. "Whatever disadvantage followed was not his fault but that of his tenant and contemplated grantee. The learned counsel for the plaintiff invokes the doctrine stated in Perry on Trusts (§ 234), that the cestui que trust (the vendee) has an equitable estate in the land to which his trust attaches; an estate which he may sell, assign or devise; but a vendor, having only a lien for his purchase-money, has no estate in the land ; it is neither jus vn re nor jus ad rem. It is a mere possibility of a right until it is established by a final decree of a court in each case, and from these principles draws the conclusions that the land is burdened with the sums expended upon it, and subject to which the defendant was reinvested with the whole estate.

There are, however, no facts warranting the application of the rule, for the reasons already assigned. It will have been noticed that, by the written contract, the purchase- was to be completed on the first of June, 1871, and that the proceedings to dispossess were not commenced until March, 1872, nearly nine months after the failure of Thrall to complete, and no effort was made to carry out the agreement by Thrall or any one on his behalf.

The equity in favor of the vendee, in the nature of a trust, will not exist where the purchaser, by his own fault, abandons the contract, or where the contract is for any cause illegal. (Perry, supra, § 231.)

In this case the contract was abandoned by Thrall because he did not seek to preserve it from the forfeiture, which occurred when he failed to complete on the first of June. Under all the circmnstanees it does not seem possible to sustain the judgment herein, and it must be reversed.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Brady, J. :

text:
    THOMPSON SMITH and others, Respondents, v. JOHN M. FALCONER, Impleaded with others, Appellant.

      Bond wpon opening of inquest ■— liability of sureties on.

    Upon application of the defendant Hazlett, leave was granted to him to appear and defend in an action in which an inquest had been taken against him, upon his giving a bond, with sureties, to secure to the plaintiff any judgment that might he recovered by him. The bond having been given, a judgment was recovered against Hazlett, from which he appealed, giving security to stay proceedings. The judgment was affirmed on appeal.
    In an action by the plaintiff upon the bond, given upon 'the opening of the inquest, the sureties thereto claimed that they were released by the extension of time given during the appeal; and that, in any event, the plaintiff must first resort to the sureties on the undertaking given on the appeal. Meld, that these defenses were properly overruled.
    Appeal by defendant John M. Falconer from a judgment in favor of the plaintiffs and against the defendants, James ~W. Hazlett, John M. Falconer and Lewis Hopner, entered on a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought upon a bond executed by the defendants to the plaintiff, conditioned that if these defendants should pay to the plaintiff any judgment they might recover in a certain action then pending, in which these plaintiffs were plaintiffs, and James W. Hazlett, impleaded, etc., was defendant, then the obligation should be void.

      JEdwa/rd P. Wilder, for the appellant.
    The sui'eties upon the bond are discharged by virtue of the appeal taken from the judgment recovered against Hazlett to the General Term, and the subsequent undertaking given to stay proceedings pending such appeal. At least the remedy against the sureties on the present bond should be held secondary to that against the sureties on the appeal undertaking, and no action should be brought against the former until all remedy is exhausted against the latter. {Hmaldey v. Kreitz, 58 N. Y., 583, 590, 591; People ex rel. Wehle v. Cornier, Sup. Ot., 1st dept., decided Oct. 31, 1816; N. Y. Weekly Dig., Jan. 8, 1811; Croydon Comil Gas Co. v. Dickerson, L. R., 1 C. P. D., 101; reported Alb. Law Jour., Jan. 13,1811, pp. 30, 31; Polak v. Kverett, Eng. High Ot. of J., Q. B. Div., decided Eeb. 10, 1816; reported N. Y. Weekly Dig., Jan. 5, 1816, p. 385; Bcmk of Albion v. Bv/rns, 46 N. Y., 110; Thv/rber v. Corbm, 51 Barb., 215 ; Wright v. AusUn, 56 id., 13.)

      Chm-les Whelp, for the respondents.
   Brady, J. :

The plaintiff commenced an action against James W. Hazlett and William R. Marvin, and an inquest was taken therein. Hazlett applied to the court in that action for liberty to appear and defend, and his application was granted upon his doing certain acts, including the giving of a bond to secure to the plaintiffs any judgment that might be recovered by them in that action.

The bond was given and such proceedings were subsequently had that judgment was rendered against the defendant, Hazlett, impleaded, etc. He appealed and gave the necessary undertaking to stay the proceedings. His appeal was not successful. The judgment was not paid, and the defendant now claims that the sureties on the appeal are primarily liable and must be resoi’ted to, and the remedy exhausted against them before he can be called upon to pay. This is an erroneous view of his obligations. The privilege given to his principal was a favor and on conditions. The bond which he executed was not a statutory instrument, but one directed by the court, and which, in the exercise of its discretion, it could require as a condition of granting the favor asked.

The engagement was absolute, to pay any judgment which the plaintiffs might recover in the action, and was wholly independent of any statutory right to which the defendant, his principal, might resort for a stay of proceedings, which was the chief object of the undertaking given on the appeal. The plaintiffs are not responsible for the subsequent proceedings of the principal; they were obliged to submit, and the delay to which they were subjected was caused by the bond which the defendant gave. If the condition of opening the default had not been performed by the execution of the bond, the stay would not have followed.

If the defendant desired to prevent the accumulation of costs and interest, it was his duty, when the judgment was obtained, which ensued upon the reference, to have tendered the amount of it, and thus prevented any further liability. He did not do so, but permitted the appeal and the further undertaking and delay, without any act to protect himself.

This is not a question of primary liability growing out of statutory undertakings given on successive stages of appeals, and when the obligation is limited by the appeal, and which were considered and explained in Hinckley v. Kreitz (58 N. Y., 583). There the law may establish precedence and. require the prosecution of the remedy in the inverse order ; but we have no occasion to pass upon that question here. The bond under consideration is absolute and independent, and the remedy exists under it if the plaintiffs choose to pursue it.

We have examined the exceptions to evidence and find nothing in them which requires particular examination. It is sufficient to say of them that they are not available to obtain a new trial.

The judgment should be affirmed with costs.

Daniels, J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Judgment affirmed, with costs.


text:
    DAVID RISLEY, Appellant, v. THE PHŒNIX BANK OF THE CITY OF NEW YORK, Respondent.

      Game of aetion — portion of an indebtedness — assigtvment of by pa/i'ol.

    A cause of action may be assigned by parol, and a portion of an indebtedness due to tlie assignor from a third person, e. g., a deposit in a bank, may be assigned in the same manner.
    Appeal from a judgment dismissing the complaint at the Circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      E. II. Hobbs and J. E. Risley, for the appellant.

      Edga/r 8. Va/n Wmlcle, for the respondent.
   Brady, J.:

The plaintiff held a check drawn by the Bank of Georgetown, South Carolina, upon the defendants, for the sum of $10,000. It was dated May 20, 1861, and was drawn to the order of the plaintiff, for a valuable consideration. On January 4, 1865, it was presented to the defendant for payment, and its cashier said: “ The drawer’s signature is correct; the check is good; we have the funds and will pay the amount, but you must be identified as the payee of the check.” The plaintiff was properly identified, and the check again presented on the 5th of January, 1865, and on subsequent days, but payment was refused. It does not distinctly appear that the identification took place on the fifth of January, although it may be fairly inferred to have been then done from the fact of presentation, in connection with what took place on the day preceding. The complaint, in addition the cause of action, resting upon the check, as a further and separate cause of action, alleged, that on the 20th day of May, 1861, the said defendant was indebted to the said Bank of Georgetown in the sum of $10,000 and upwards, and that on that day the said Bank of Georgetown sold and assigned to the plaintiff the said indebtedness of the defendant to it, to the amount of $10,000, and that the plaintiff has ever since been and is now, the lawful holder and owner thereof, and brings this action to recover the same.

And on the trial the plaintiff offered to show in reference to it as follows : “ That on the 20th day of May, 1861, for a valuable consideration, by an oral agreement, the Bank of Georgetown assigned and sold the indebtedness due it, the Bank of Georgetown, from the defendant, to the extent of $10,000 thereof, and gave plaintiff the check above referred to; and that on the 4th day of January, 1865, the plaintiff notified the defendant that he had purchased the claim and indebtedness due from the Phoenix Bank, and presented the check and demanded payment of the same, and that the same has not been paid.”

The counsel for the defendant conceded, for the purposes of a motion to dismiss the complaint, that the plaintiff’s testimony would prove the facts stated prima fade, and that the offer to prove them should have the like effect as if the witnesses had been sworn and so testified. This concession was made because, after the case had been opened and before any evidence was given, the defendant’s counsel moved to dismiss the complaint on the assumption that, admitting the facts stated to be truly existing, the plaintiff had no cause of action.

In reference to the defendant’s liability upon the check, the proposition was that the check was a bill of exchange, and the drawee could not be held liable thereon except by its acceptance in writing. This view is sustained by the case of Duncan et al. v. Berlin et al. (60 N. Y., 151); but there are many others in which the doctrine has been declared that a cheek is a bill of exchange. (See Cruger v. Armstrong, 3 Johns. Cas., 5, 7, 8; Merch. Bank v. Spicer, 6 Wend., 443, 445; Murray v. Judah, 6 Cowen, 484, 490; Lunt v. Bank of North America, 49 Barb., 221; Chapman v. White, 6 N. Y., 412.)

When the office of a check, which is sid generis, is considered, it is strange that it should be regarded as a bill, of exchange and subject to the rules which govern such instruments. A check is generally drawn upon a bank, or bankers, and is in fact a substitute for ready money, and means money; it is received with the expectation that it will be accepted and treated as money until dishonored by the drawee, which rarely happens. It is not dependent upon any other incident than the presence of the fund against which it is drawn; and it is not drawn, therefore, foi acceptancei but for pay-men]!;. It does not depend upon the willingness or readiness of the drawee to accept but wholly upon the existence of the fund, and payment is the only acceptance which enters into the arrangement or intention of the parties in reference to it; both the maker and the holder, or the payee, regarding it as a direction to the drawee to pay so much out of the money of the drawer, which the drawee holds for the sole purpose of paying it out to the creditors of the drawer, haying no control oyer it in any way whatever. When, therefore, a check, considered with reference to the design and object of it, is presented to the bank, the only request it can make through its officers is, proof of identity when it is payable to the order of a person named. This proceeding does not involve acceptance, however. The identification is not required for that purpose; on the contrary it is for protection, and because there is not to be an acceptance but immediate payment. The doctrine of acceptance which relates to bills of exchange eo nonvme, is well understood by the contracting parties, and they know it to be an element affecting their validity which depends on a variety of independent causes.

The rule stated relative to checks is, however, so well settled that the court of last resort only should interfere with it. The proposition of the defendant’s counsel, thus considered, was correct, therefore, for those reasons, and the court was justified in accepting it as a correct exposition of the law. This result did not, however, dispose of the case, although it disposed of all issues, save one, to be considered.

The allegation in the complaint and the proof, established an oral assignment of the indebtedness of the defendant to the Bank of Georgetown to the extent of $10,000, for a valuable consideration, of which the defendant was notified at a time when funds of the assignor to the amount named was in its possession, namely, on the 4th of January, 1865. This was not an equitable assignment, springing out of the possession of the check, but an assignment in fact, valid in law, and giving or creating a good cause of action. The check would be evidence of the transaction, as between the assignor and assignee, and might be admissible as corroborative testimony in this action if tbe issue on tbat subject were to be disposed of on conflicting proofs. But tbis is a subject not necessarily presented now for discussion. Tbe assignment averred was good as sucb. Sucb a legal effect may be accomplished by parol. A cbose in action may be assigned in tbat mode. (Prescott v. Hull, 17 Johns., 281; Ford v. Stuart, 19 id., 312; Kessel v. Albetis, 56 Barb., 362.)

Tbe learned counsel for the defendant seems to have regarded tbe check as inseparably connected with tbe cause of action, and tbat tbe whole claim rested solely upon tbe drawing and dehvery of tbe check. If tbis were so tbe judgment would have to remain undisturbed; but tbe assignment considered made a separate cause of action, and tbe plaintiff bad a right, of which be was deprived, to present bis proofs to establish it.

Bor these reasons, we think, tbe judgment must be reversed and a new trial ordered, with costs to abide event.

Davis, P. J., and Daniels, J., concurred in tbe result.

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


author: Daniels, J.:

text:
    MARTHA BUMSTED, Administratrix, etc., Respondent, v. RUSSELL H. HOADLEY, Appellant.

      Prinelpdl cmd agent — limited authority — JOmdenee—of delivery of m'tiele sold.

    Where an agent is authorized by a special power of attorney to sell sand, but his authority so to do is limited by the established grade of the street, any sale by him in excess of the amount thereby authorized is void, and the party dealing with him is chargeable with notice of the restrictions contained in the power of attorney.
    Upon the trial of an action to recover for a breach of a contract to deliver sand, it was shown that the sand had been delivered upon tickets issued for that purpose to plaintiff's intestate. It was also shown that the tickets so issued had all been returned to defendant’s agent Held, that the evidence was competent; that the delivery of the tickets to the plaintiff’s intestate, and their subsequent possession by the defendant’s agent, created a presumption that the sand had been delivered for which the tickets had been issued.

      Appeal from judgment in favor of the plaintiff, recovered on a trial at the Circuit.

      Drnid McOlwre, for the appellant.

      JE. A. PooUttle, for the respondent.
   Daniels, J.:

This action was brought to recover damages for the breach of a contract for the sale of sand. It was executed in the defendant’s name by James O. Watkins, under a power of attorney. The power limited the authority of the attorney to sell sand by the established grade which it appeared had been made of the property. In the contract executed by him no such restriction was made on the amount of the sand which could be taken away under it. And it was claimed that the quantity sold by its terms exceeded that which the agent had been authorized to sell. He acted under a special authority in writing. And if that was the fact, the contract was certainly inoperative as to the excess. For where a party deals with an agent under a special and limited power, he is chargeable with notice of the restriction which the principal in the instrument creating that power may have imposed upon him. (North River Bk. v. Aymar, 3 Hill, 262; Westfield Bk. v. Cornen, 37 N. Y., 320 ; Story on Agency, §§ 77, 165; Rossiter v. Rossiter, 8 Wend., 195; Barlett v. Palmer, 4 Seld., 398.)

During the progress of the trial the defendant proposed to prove that it would require more than the sand remaining above the grade to fill up the excavation which had been made below it in removing what had been taken away. That was excluded, on the objection of the plaintiff’s counsel, and the defendant excepted. This evidence ought to have been received, because it would have directly tended to establish the fact, that the intestate had received all the sand which the defendant’s agent had authority to allow him to remove.

The evidence might not have established a defense in the action, but it had a tendency in that direction, and there was no such proof of ratification by any act of the defendant, as rendered its consideration unnecessary. The questions arising were mainly those of fact, and this evidence was important in the consideration of one of them.

It also appeared that the sand had been received and removed upon tickets or receipts issued for that purpose to the person sending for it; and it was shown that 5,000 team tickets had been delivered to the intestate. It was then proven that these tickets had all been afterwards returned to the agent of the defendant. But the answer of the witness proving this fact was stricken out as improper evidence, on motion of the plaintiff, and the defendant thereupon excepted. This evidence of the fact of the return of the tickets tended to establish the conclusion, that the sand represented by them had been delivered to some person or persons under the authority and with the assent of the intestate. They had been shown in his possession, and it was natural to suppose that he would only have parted with them for the equivalent the holder was entitled to demand for them. Their subsequent possession by the defendant’s agent created a presumption that the sand had been delivered for which they had been issued. (Alvord v. Baker, 9 Wend., 323.)

The quantity delivered was a fact put in issue by the answer ; and this evidence had a material bearing upon that portion of the controversy, for it had a tendency to diminish the subject-matter on which damages could properly be claimed by the plaintiff, even if the defendant was liable for the refusal to perform the agreement which had been made.

These rulings at the trial were erroneous, and are sufficient to require another examination of the case. A determination of the other points presented will consequently become unnecessary. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment reversed, new trial ordered, costs to abide event.