author: DALY, P. J.

text:
    John A. Kennedy v. Robert A. Carrick et al.

    (.Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Attorney’s lien—"Who entitled to.
    Under Code Civ. Prob. § 66, giving a lien to the attorney “who appears for a party,” one who is employed by the attorney retained by plaintiff to try the case is not entitled to a lien.
    8. Supplementary proceeding—Conflicting claim.
    In supplmentary proceedings, no decision can be made as between conflicting claimants of the property involved.
    Appeal from city court of New York, general term.
    Action by John A. Kennedy, as assignee of John B. Manning, against Robert A. Carriole and another. From an order vacating an order in supplementary proceedings permitting Alexander Wiley to pay to the sheriff on plaintiff’s execution the sum of $201.85, the amount of his indebtedness to defendant Robert A. Garrick on a judgment recovered by Garrick against him, and directing plaintiff to repay to Oswald N. Jacoby, as assignee of the said judgment, the sum of $191.78, received by plaintiff from the sheriff# plaintiff appeals.
    Denis Quinn and J. Woolsey Shepard, for appellant.
    Oswald N. Jacoby, in pro. per.
   DALY, P. J.

The city court made an order in supplementary proceedings against Wiley, a third party, who was indebted to the judgment debtor, Garrick, in the amount of a judgment which the latter had obtained against him, by which order Wiley was permitted to pay the amount to the sheriff, to be credited upon the execution issued by the plaintiff, the judgment creditor in this action. Payment was made by Wiley accordingly, and the sheriff turned over to the plaintiff $191.78 out of it. Subsequent to such payment, Hr. Jacoby, an attorney and counselor at law, applied to the court to vacate the order, and to direct the plaintiff to pay over to him the amount so received, on the ground that he became entitled thereto by virtue of an assignment of Garrick’s interest in the suit in which the judgment against Wiley was subsequently recovered. The motion was granted, and an order made vacating the original order permitting Wiley to pay to the sheriff, and requiring this plaintiff and his attorney to repay the amount received by them to Jacoby. On appeal to the general term of the city court, the order was modified, in so far as it required the attorney to personally repay the money, and affirmed in all other respects. From such affirmance the plaintiff appeals.

By virtue of section 2446 of the Code of Civil Procedure, the payment by Wiley under the order permitting him to pay to the sheriff the amount of his indebtedness to Garrick was a discharge of his indebtedness, except as against a transferee from Garrick in good faith and for a valuable consideration, of whose rights he had actual or constructive notice when lie made the payment, Wiley had no notice, actual or constructive, of the transfer to Jacoby, for the latter gave him no notice of the assignment, and Jacoby was not the - attorney of Garrick, and not entitled to the benefit of the rule that the lien of an attorney prevails over the rights of a judgment creditor, even in the absence of notice of his lien. Dienst v. McCaffrey (Com. Pl.) 32 N. Y. Supp. 818. By section 66 of the Code, the attorney’s lien is given only to the attorney who appears for a party. Jacoby was retained as counsel by Mr. Sltelly, the attorney of Garrick, to try the action against Wiley. He was then under an agreement to pay them a claim they had for fees in the employ of Kurcman & Fi ankenheimer, Aiho had been attorneys for Garrick in another matter, and he took the assignment out of whatever might be recovered from Wiley. Shelly, and not Jacoby, was therefore the attorney of Garrick, and it was a lien in Skelly’s favor, only, of which Wiley had constructive notice. Not having actual nor constructive notice of Jacoby’s claim or assignment Wiley was discharged by the payment of his indebtedness to the sheriff under the order and by the provisions of the Code, and after such payment the order could not be vacated as to him.

It is claimed, however, that it might be vacated as to the plaintiff in the execution, to' whom the sheriff paid the money. In case of collusion, bad faith, imposition upon the court, or for any reason that seemed substantial, the court which made the original order has the power to set it aside, so that it shall not obstruct the right of a third party who has a just claim to the fund, and whose right would be jeopardized by the order if permitted to remain in force. But the order appealed from goes further, and directs the plaintiff to repay the money, not to the sheriff, nor into court, but to a stranger claiming.under an assignment. This, it would seem, exceeded the powers of the court under any provision of the Code relating to supplementary proceedings. There is no authority given by the Code to order payment to any person. The order authorized by section 2446, by which a third party may pay to the sheriff, is permissive merely, and there is no jurisdiction in supplementary proceedings to decide as between opposing claimants. When the money has been paid over by the sheriff to the execution creditor, the right of the latter to retain it as against one claiming as prior assignee cannot be summarily disposed of. The plaintiff had the right of a vigilant creditor, who secured a lien upon the amount due from the third party by the service of his order (Lynch v. Johnson, 48 N. Y. 27); and, if such right is contested by the assignee, it must be in a proper action, in which the bona fides of the assignment, or the amount actually collectible thereunder, can be determined after a trial. The plaintiff might be directed to pay the money into court, to preserve it for the party entitled thereto, but a summary determination of title cannot be made upon motion.

The right of Mr. Skelly, the attorney of Garrick in the action against Wiley, to proceed against the latter for the enforcement of his lien, I do not touch upon, as this appeal involves no right except that of Mr. Jacoby under his assignment. Mr. Skelly’s lien is unaffected by the payment made without his knowledge. Dienst v. McCaffrey, supra.

The order appealed from should be modified by striking therefrom the provision that the plaintiff repay to Oswald. N. Jacoby the sum of $191.78, the amount paid the plaintiff’s attorney by the sheriff, and affirmed as to the residue. No costs of this9appeal to either party. All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Adolph Lurie et al. v. Metropolitan Street Railway Co.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Street railroads—Collision with bicycle—Contributory negligence.
    A collision between plaintiff’s tandem bicycle and defendant’s horse car was caused by the negligence of plaintiff, where plaintiff, while going along the side of the track, suddenly turned across the track a few feet in front of the approaching car.
    Appeal from Eighth district court.
    Action by Adolph Lurie and another against the Metropolitan Street-Railway Company to recover damages caused to plaintiff’s tandem bicycle by a collision with defendant’s horse car. There was a judgment in favor of plaintiffs for $57 damages, besides costs, and defendant appeals.
    Henry A. Robinson, John T. Little, Jr., and Ambrose F. McCabe, for appellant.
    M. Martin, for respondents.
   DALY, P. J.

—The plaintiffs have recovered a judgment against the railroad company for damage to the tandem bicycle, caused by a collision with a horse car going easwardly along Thirty-Fourth street, at the intersection of Madison avenue, about 15 minutes past 10 o’clock on-the night of August 29, 1895. Ross, one of the plaintiffs, was on the rear seat of the bicycle, and a man named Mosesson was on the front seat. They had ridden down Park avenue and turned into Thirty-Fourth street, had reached the center of Madison avenue, turned, and were crossing the tracks in front of the approaching car in order to go down Madison avenue. The questions presented by the evidence were whether the driver of the car was negligent, and whether the plaintiffs were free from negligence contributing to the injury.,

It clearly appears, from the evidence, that the men on the bicycle took the risk of crossing in front of the car when it was so near as to render a collision unavoidable, Ross says they were coming along Thirty-Fourth street on the north side, and when they got to' the middle of Madison avenue they cut across the track, and the car was then 40 or 50-feet from the corner, and coming fast: that the front wheel passed the track, when the forward man was struck by the horse, and they were knocked down, and dragged 25 feet. He says that they had plenty of time to cross when they attempted to do so, and that they were going slowly. How, then, did it happen that they were struck? The explanation is found in the witness’s subsequent admission that the horses’ heads were 10 feet from him when he got on the track; and, when pressed to answer whether the horses traveled that distance before he could cross the track, he admitted that the distance might have been 8 feet, and could not say that it might not have been 6. Again, he stated that, when the front man came on the track, the horses were but 7 or 8 feet away, and again, that they were that distance away before the man got on the track. The witness Mosesson, who was on the front of the bicycle, says that the car was about two houses from the corner of Madison avenue when they were in the middle of the avenue on the north of the track, and turned at right angles to it. He says that that they back pedaled, and hallooed to the driver to stop and, before the witness could think, they were under the car; that the first horse struck him, and that his wheel only was on the track, and he cannot say how far the horses were when he crossed the first rail. From his testimony it would seem that the tandem was going, not slowly, as Ross testified, but so fast that the riders were unable to stop it by backpedaling, and that they ran directly in front of the horses.

Not only was the negligence of the riders clearly established, but the case is barren of facts upon which a charge of negligence on the part of the driver of the car could be sustained. Had the tandem been coming down Madison avenue the driver would have had notice that it was about to cross the car tracks at Thirty-fourth street, and there might, perhaps be ground for asserting negligence on his part for not getting his car under control by checking its speed; but, as it was, there seems to have been no sign given by which he could know that the wheel, which was coming westward along Thirty-fourth street, as he was going eastward, would turn to the left, and go across his track instead of holding its course straight ahead, as might naturally be expected. The responsibility was upon the riders, in such a case, to determine whether it was safe to cut across ahead of the car, or ride on further, and cross behind it. That this error in judgment was extreme is shown by the fact that it was not the rear rider that was struck, but the front one. If the plaintiff’s statement is correct, that the tandem was moving at a slow rate, and that the car Avas coming at a rapid rate, there seems no other conclusion than that the plaintiffs Avere guilty of contributory negligence in attempting to cross. Under the circumstances, a collision was not only probable, but was certain, and the riders seem to be responsible for it.

The judgment must be reversed, and a new trial ordered# with costs to the appellant to abide the event.

All concur.


author: BISCHOFF, J.

text:
    Coyle v. Third Avenue Railroad Co.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Pleading and pboof—Variance.
    Where a complaint alleges that the accident sued for was caused by the failure of the persons in charge of the street car which struck plaintiff to give a timely warning of its approach, but contains no general averment of negligence, evidence that the accident was caused by the omission to stop the car or to slacken its speed is not admissible without an amendment of the complaint.
    Appeal from city court of New York, general term.
    Action by Hugh Coyle against Third Avenue Railroad Company for, personal injuries alleged to have been sustained in a collision with one of defendant’s cable cars, through the negligence of an employe in control of the car to give warning of its approach. A judgment in favor of plaintiff was affirmed by the city court (40 N. Y. Supp. 362), and defendant appeals.
    Henry L. Scheuerman and Eugene Treadwell, for appellant.
    Hyman Levy, for respondent.
   BISCHOFF, J.

The plaintiff sued to recover damages for personal injuries which he claimed to have sustained in a collision with one of the defendant’s cable cars while driving his heavily laden cart over the tracks of the railroad at its intersection with Fifteenth street in the city of New York. The complaint contained no general averment of negligence on the part of the defendant, or any of its servants, but particularized the omission of the defendant’s servant in charge of the car to give timely warning of the latter’s approach as the only cause of the accident. On the trial it appeared from the plaintiff’s admission that he was aware of the approach of the car when it was at Fourteenth street, more than 100 feet distant from the place at which he sought to cross the tracks. The evidence adduced in support of the cause of action was to the effect that, while no warning of the car’s approach was in fact given, its violent impact with the plaintiff’s cart was the result wholly of the omission to stop the car or slacken its speed, whereby the accident would have been avoided, in the exercise of reasonable care on the part of the defendant’s servant. No amendment of the complaint was asked for or had, and, when the introduction of the plaintiff’s direct evidence was concluded, the defendant’s counsel moved for a nonsuit on the grounds that there was “no proof of any negligence on the part of the defendant as claimed in the complaint,” and that “no negligence whatever” was shown. The motion was renewed at the close of the whole case, and again denied. These denials were erroneous. The plaintiff knew of thee approach of the car when he attempted to cross the track. Obviously, therefore, the omission to warn him of the car’s approach was not a proximate cause of the accident, not actionable negligence (16 Am. and Eng. Enc. Law, 428); and while, under a general averment of negligence, a recovery may be had upon proof of any state of facts from which it appears that the injuries complained of were caused wholly by the omission of reasonable care on the part of the defendant (Oldfield v. Railroad Co., 14 N. Y. 310, 314; Edgerton v. Railroad Co., 39 N. Y. 227, 230), it does not follow that, without an amendment of the complaint which charges negligence in the omission to perform particular acts, or without the litigation by consent of the parties of a cause of action not alleged, a recovery is permissible upon proof that the accident resulted from the defendant’s omission of reasonable care in some other respect (Boehm v. Mace, 28 Abb. N. C. 138; Woolsey v. Trustees, 69 Hun, 489, 52 St. Rep. 720; Zboynski v. Railroad Co., 10 Misc. Rep. 7, 62 St. Rep. 655; Parker v. Railroad Co., 16 Barb. 315). The recovery in every case must be “secundum allegata et probata” (Romeyn v. Sickles [N. Y. App.] 15 N. E. 698), and the rule forbids, though the action may not be deprived of its character as one for negligence, recovery upon proof of a cause of action other than the one alleged (Pom. Rem. & Rem. Rights, p. 610, § 553, etc.; 28 Am. & Eng. Enc. Law, 59, note 5). The evidence urged in support of the plaintiff’s recovery was relevant to the cause of action alleged (Platner v. Platner, 78 N. Y. 90), and admissible as a part of the res gestae. Hence there is no room for inference from the defendant’s failure to object to the introduction of the evidence in some instances that it intended to consent to the substitution and litigation of a cause of action other than the one alleged. Frear v. Sweet, 118 N. Y. 454, 29 St. Rep. 972.

The judgment of the court below at general and trial terms must be reversed, and a new trial had, with costs to the appellant to abide the event. All concur.


author: McADAM, J.

text:
    Hermann Williams v. Francis Wilson.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Belease—Evidence.
    After plaintiff, who had made a claim against defendant for an alleged wrongful discharge, had offered to compromise for three weeks’ salary, he met defendant, received two weeks’ salary, and executed a general release. He did not claim that defendant made any misrepresentation or used any artifice, hut merely testified that he was hard up; wanted something to eat; that he mislaid his eyeglasses; that the paper was not read to him, and that lie did not know what he was signing, but supposed it was a receipt. Held, not sufficient to sustain a finding that the release was obtained by fraud.
    2. Same—"Validity—Attorney’s fees.
    The fact that plaintiff’s attorney had a lien on the cause of action does not affect the validity, as between the parties, of a settlement by them.
    Appeal from city court of New York, general term.
    Action by Hermann Williams against Francis Wilson. A judgment in favor of plaintiff was affirmed by the city court (40 N. Y. Supp. 350), and defendant appeals.
    Hyde & Leonard, for appellant.
    Fromme Bros., for respondent.
   McADAM, J.

The action is by the plaintiff, a chorus singer, against the defendant, a theatrical manager, on a contract of employment, and is founded on an alleged wrongful discharge. The plaintiff claimed that he was engaged for a season of 35 weeks commencing September 10, 1894, while the defendant contended that the engagement was for an indefinite period, terminable on two weeks’ notice. The defendant, on October 1, 1894, served on the plaintiff a written notice stating that the former had availed himself of the usual two weeks’ clause applicable to such engagements, and that the plaintiff’s services would not be required after October 14, 1894. The plaintiff was paid up to the last-named day. There was no evidence proving such a custom as that stated in the notice of discharge, except a written admission, signed by the plaintiff November 2, 1894, acknowledging the existence of the custom, and that it applied to his engagement with the defendant. Among other defenses, the defendant pleaded a general release, and upon the trial produced a writing excuted by the plaintiff under seal November 2, 1894, and duly acknowledged by him, whereby he released and forever discharged the defendant from all manner of actions or causes of action, especially the one which forms the subject of this suit.. The consideration was $36,—two weeks’ wages,—and this sum the plaintiff admitted he received, retained, and never offered to return. The action was begun October 29, 1894, and two days after-wards the plaintiff wrote to the defendant that if the latter would pay him three weeks’ salary he would be satisfied; if not, the defendant would have “to try the consequences of the law.” On November 2, 1894, four days after the action was instituted, the parties met, the admission as to custom and general release were executed by the plaintiff, the $36 consideration (two weeks’ wages) paid, and the cause of action apparently extinguished as between the parties. Upon the trial the plaintiff undertook to avoid the effect of the admission and release by claiming—First, that they were obtained by fraud; second, that the plaintiff had agreed to give his attorneys one-half of the claim for their services; that they thereby acquired a lien on the cause of action to that extent; and the settlement was inoperative as to them. The two questions will be considered separately.

First, as to the alleged fraud. The plaintiff admitted that the defendant had made no misrepresentations, and that no artifice was used to obtain his signature to the papers, and the only attempt to explain away their effect was by Ms testimony that he was hard up, wanted something to eat, had mislaid his eyeglasses, that the papers were not read to him, and he did not know what he was signing, and supposed they were receipts for $36. This evidence entirely failed to establish fraud sufficient to avoid the release. The plaintiff is an intelligent man, able to read and write the English language, and if he did not read the papers understandingly it was because of his own neglect, with which the defendant is not chargeable. In cases free from misrepresentation and fraud, where no confidential relation exists, and the parties deal upon an equal footing, with corresponding means of knowledge, and they are capable of reading and understanding the instrument they sign, they are bound to inform themselves of the contents thereof, and if they neglect to do so the law will afford them no relief. Root v. Zeller (City Ct. N. Y.) 2 N. Y. Supp. 742; Harris v. Story, 2 E. D. Smith, 363; Ellis v. McCormick, 1 Hilt. 313. A person in the full possession of his faculties, and able .to read is bound to know and understand the contents of an instrument executed by him, and is held to it, unless he was by trick or artifice induced to sign a different instrument from that to which he intended to affix his signature, as where one paper is surreptitiously substituted for another. Bigelow, Frauds, 73, 75, The party executing the paper is generally bound to exercise the ordinary diligence he possesses to avoid imposition. Chapman v. Rose, 56 N. Y. 137; 8 Am. & Eng. Enc. Law, 643; Bish. Cont. § 169; Long v. Warren, 68 N. Y. 426. The authorities agree that written instruments, signed by parties who have full opportunity to know their conenis, cannot be disregarded, unless the evidence is clear that in obtaining their execution fraud has in fact been committed. Dorwin v. Westbrook, 86 Hun, at page 368, 33 N. Y. Supp. 449; Walbourn v. Hingston, 86 Hun, 63, 66 St. Rep. 814; Kirchner v. Machine Co., 135 N. Y. 182, 48 St. Rep. 242; Albrecht v. Railroad Co., 87 Wis. 105, 58 N. W. 72. If the defendant had paid three weeks’ salary, all would have been perfectly satisfactory to the plaintiff, according to the letter which he himself voluntarily wrote to the defendant, but because he received salary for one week less, as the result of the compromise, he made the grave charge of fraud, and sought to establish it in the vague and unsatisfactory manner stated. The charge was unproved, and the release-as a consequence, binding upon the plaintiff.

Next, as to the effect of the attorneys’ lien. The fact that they had a lien on the cause of action does not aid the plaintiff. If they required any protection in that regard they should have applied to the court for leave to prosecute the action in aid of their lien, and at their own risk and expense. Oliwill v. Verdenhalven (City Ct. N. Y.) 7 N. Y. Supp. 99; Washburn v. Mott (Cir. Ct.) 12 N. Y. Supp. 111; Dimick v. Cooley, 3 Civ. Proc. R. 141; Doddard v. Trenbath, 24 Hun, 182; Quinlan v. Birge, 43 Hun, 483; Smith v. Baum, 67 How. Prac. 267; Tullis v. Bushnell, 65 How. Prac. 465; Murray v. Jibson, 22 Hun, 386; Stahl v. Wadsworth, 13 Civ. Proc. R. 32; Coster v. Ferry Co., 5 Civ. Proc. R. 146; Russell v. Somerville. 10 Abb. N. C. 395, note; Kehoe v. Miller, Id. 393; McBratney v. Railroad Co., 87 N. Y. 467; Publishers’ Printing Co. v. Gillin Printing Co., 16 Misc. Rep. 558, 38 N. Y. Supp. 784. If this had been done, the lien might have been discharged by payment or tender, or an issue created as to the extent of it, and this with the original right of action might have gone to the jury to the end that the amount of the lien might be fixed, and the lien itself finally satisfied. The order permitting the prosecution would have qualified the recovery by explaining its purpose, and the defendant could have discharged the judgment by paying the amount of the lien as established, with the costs following its establishment. As the record stands now, there is a general verdict in favor of the plaintiff for the whole amount of his claim and interest, and the only manner in which its satisfaction can be obtained is by full payment of the judgment entered thereon. Further, since the proof fails to present fraud sufficient to vitiate the written admission as to custom, the plaintiff having received the required two weeks’ notice, and been paid in full up to the time it was to take effect, was without any cause of action to which the attorneys’ lien could attach, an the only verdict permissible was one for the defendant. There is, therefore, no theory upon which the recovery can be sustained.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: PER CURIAM.

text:
    Charles E. Pearsall v. Harriet F. Van Zandt.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Release—Effect as to joist debtors.
    Plaintiff entered into a contract ■with L., W., and defendant to erect an improvement on land owned by them jointly, one-third of the contract price to be paid on completion of "the work, and the balance one year thereafter. Soon after the work was completed, L. and W., without waiting for the expiration of the year, each paid plaintiff one-third of the whole contract price, in consideration of a release of all further claims against them. Held, that defendant’s liability to pay forthwith her proportionate part of the cash payment stipulated for by the contract was not thereby affected, since the payment made by L. and W. .was a composition between them and plaintiff, which Code Civ. Proc. § 1943, provides shall not affect a creditor's right of action against any joint debtor not a party to the composition.
    Appeal from special term, Westchester county.
    Action by Charles E. Pearsall against Harriet F. Van Zandt to foreclose a mechanic’s lien for labor and material in building a crib bulkhead on property owned by defendant jointly with James B. Ludlow and Annie L. Winters. The contract to build the bulkhead was made with James B. Ludlow, acting for the three joint owners, and provided that one-third of the contract price sdould be paid on completion of the work, and the balance one year thereafter, with five per cent, interest. The contract price was $4,-589.50. Extra work was done to the amount of $9. The work was completed on May 25, 1895. On August 14th following, James B. Ludlow and Mrs. Winters each paid $532.84, being their shares of the cash payment required by the contract to be made on completion of the work. On the next day they each paid plaintiff $1,000, and took a release from plaintiff for all claims against them under the contract. There was a judgment in favor of plaintiff, and defendant appeals.
    Dwight S. Herrick, for appellant.
    Benjamin A. Gould, for respondent.
   PER CURIAM.

—This is a suit to foreclose a mechanic’s lien, in which the plaintiff was successful at the special term. The plaintiff claimed compensation under a contract for materials furnished and labor performed in building a crib bulkhead in the city of Yonkers, for the Ludlow estate, which designation applied to James B. Ludlow, Annie L. Winters, and the defendant, Harriet F. Van Zandt, who were the equal owners, as tenants in common, of the land upon which the crib bulkhead was built. The principal question of fact litigated upon the trial was whether Mr. James B. Ludlow, with whom the contract was actually made, had any authority to bind the defendant. The learned judge at special term found that he had such authority, and we think there is sufficient evidence to sustain this finding.

The only other point of importance which the case presents relates to the effect of certain payments made by the other two parties to the contract, Mr. Ludlow and Mrs. Winters, in composition of the plaintiff’s claim against them. Code Civ. Proc. sec. 1942. One-third of the sum payable under the contract was to be paid when the work at as done, and the balance within one year thereafter. Some time after the completion of the work, Mr. Ludlow paid his one-third, and Mrs. Winters paid her one-third. The next day, Mr. Ludlow paid $1,000, and Mrs. Winters paid $1,000 to the plaintiff, in order to procure a discharge of his claim against them, and received instruments of acknoAvledgment Avhieh amounted to releases of their indebtedness, under-section 1942 of the Code. The defendant insists that inasmuch as these payments of $1,000 each, together with the sums previously paid by Mr. LudloAV and Mrs. Winters, amounted to more than one-third of the contract price, the plaintiff had received more than was due him at the time of the commencement of this action, and therefore the complaint should have been dismissed. This argument ignores the purpose for which the payments of $1,000 each Avere made. The joint debtors thereby simply sought to compound the claim against them payable by its terms in the future. This they had just as much right to do effectively, under the Code, as they had to compound a claim previousy payable. The composition thus effected did not change in any respect the rights of the plaintiff as against the joint debtor who did not participate in the composition.

The judgment should be affirmed, with costs.


author: PER, CURIAM.

text:
    Mary E. Parker v. Smith Williamson.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Work and services—Attendance on sick parent.
    A claim for services alleged to have been rendered by claimant to her-deceased father is sustained by evidence that claimant, who was living with her husband and son, broke up housekeeping at the request of decedent, and went to his house to nurse him and his wife, and that decedent frequently said that he appreciated claimant’s services, that he could not get any one else to do so much for him as she did, and that she should be paid therefor.
    Appeal from judgment on report of referee.
    Claim by Mary E. Parker against Smith Willimason, as executor of the will of John L. Burnett, deceased, for services rendered by claimant to decedent, who was her father. The claim was referred by consent, and from a judgment-in favor of claimant defendant appeals.
    The referee found that on or about October 1, 1891, claimant, who then lived with her husband and son, broke up housekeeping and went to the house of decedent, at his request, to nurse him and wife, and other members of her-family going elsewhere to live; that between October 1,. 1891, and the time of the death of decedent, on May 30, 1894,. claimant performed work, labor and services for him, in managing his household, and nursing and taking care of him and his wife during illness of each of them, and until their respective deaths; .that said services were performed at the request of decedent; that he promised to pay claimant liberally therefor; and that the services were reasonably worth the sum of $500, for which sum judgment was directed-The evidence as to the rendition of services by claimant,, and decedent’s promise to pay her therefor, was as follows r Isaac W. Ferries testified that he saw claimant at decedent’s house, taking general oversight of the affairs, and taking care of decedent and decedent’s wife, and of the house and children. Mrs. Anna Fitzgerald testified that she frequently talked with decedent about claimant, and her faithfulness to him and to his wife; that decedent frequently told her how greatly he appreciated her services, that she-did more for -him than any of the rest of his children, and that he would see her doubly paid for her services and attentions; and that" he frequently said that he would pay-claimant for the services rendered by her to him and to his-' wife. Mrs. Cornelia Swift testified that she frequently saw decedent during his last illness; that he told her that he would amply reward claimant, and that she should be doubly paid for her services. Emma E. Foster testified that she frequently heard decedent saj*" that he v as pleased at claimant’s devotion, and that he would reward her for her services. Mrs. Hannah M. Eltinge testified that she frequently spoke to decedent about claimant’s attendance, and he told her that he sent for her to come and nurse his wife and him, and said that, if she did not remain with him and care for him no one else would; that he meant that she should be well compensated; that claimant objected to breaking up her home to come and wait upon him and nurse him steadily; and that he said that, if she would do so, he would compensate her well. Annie O’Neill, a professional nurse, testified as to the value of the services rendered by claimant. The only evidence to the contrary was that of Henry Gr. Cooper, who testified that decedent told him that claimant had lived with him for nearly three years; that he intended to do by his children exactly alike; that he had made a will directing an equal division among his children; that claimant had been making her home with him, and had been under no expense for rent or living expenses; and that she should, nevertheless, have an equal share of his estate. The witness further testified that he never heard about the claim, except that certain persons were urging claimant to make it.
    James C. De La Mare, for appellant.
    John J. Brady, for respondent.
   PER, CURIAM.

—The testimony given to support the claim of plaintiff was sufficient and satisfactory, and brings the case within the decision in Markey v. Brewster, 10 Hun, 16, affirmed on appeal upon the opinion of the court below. 70 N. Y. 607. The facts of the case warranted the rendition of a judgment for costs in plaintiff’s favor, and the law authorized it. Denise v. Denise, 110 N. Y. 562; 18 S. R. 873; Hauxhurst v. Ritch, 119 N. Y. 621; 28 S. R. 675.

The judgment appealed from should, therefore be affirmed, with costs. •


text:
    Annie Lowenthal v. Harris M. Copland.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Appeal—Review—Objections not eaisbd below.
    Where defendant did not move for a direction of a verdict in his favor, or for dismissial of the complaint, he cannot object, on appeal, that the evidence did not justify its submission to the jury.
    Appeal from city court of New York, general term.
    Action by Annie Lowenthal against Harris M. Copland on two promissory notes. A judgment in favor of plaintiff for tlie amount of the notes and interest was affirmed by the city court (40 N. Y. Supp. 379), and defendant appeals.
    Louis Steckler, for appellant.
    Louis J. Vorhaus and Grossman & Vorhaus, for respondent.
   DALY, P. J.

—The recovery was had against the defendant as the maker of two promissory notes of $500 each, one made on January 7, 1895, payable on demand, and one on April 8, 1895, at three months, payable to the order of Harris Abloviteh. The defense of usury was set up in the answer, but was disposed of adversely to the defendant by the verdict of the jury, and no question thereon is raised on this appeal. The issue of fact litigated at the trial, and the only question argued before us, is as to the ownership of the notes the plaintiff claiming by a transfer from the payee, with- ■ out indorsement, two weeks before his death. The answer averred ownership in the administrator of the deceased payee.

The plaintiff was the sister of the payee, Abloviteh, who was unmarried, and lived with her for about two years and a half before his death. She produced the notes in court, and her daughter, Lillie Lowenthal, sixteen years of age, testified that about May 29, 1895, her uncle, the payee, gave the notes to her mother, saying, “You have been very kind, and I present these to you to collect and keep for yourself;” that he was then lying on a couch or lounge in his room, and had the notes under his pillow; that he had been ill, and growing worse, about three months before his death, which occurred about June 14th; that her uncle, Heyman Lowenthal, was present when the notes were delivered. The latter was not called as a witness by the plaintiff until her case in rebuttal, when his testimony was objected to by defendant as not in rebuttal, and was excluded. The witness Lillie Lowenthal was cross-examined at length as to the occurrence to which she testified, as to the desk in which the deceased kept his papers in his bedroom, as to his having retired from business, as to his business as being the discounting of notes, as to the illness of which he died (consumption), and as to the attendance of doctors and nurses. On defendant’s part, David Dreben, a friend of the deceased, who used to assist in keeping his accounts and books, was called, and testified that about June 10th he saw the notes in the desk in the deceased’s room, with his other papers, mi an occasion when the deceased asked him to get a certain paper from it, and that, on that occasion, with the help of the deceased, he checked off twenty-five or thirty notes, among them those in suit. This witness’s wife was a niece of the deceased, and, as one of his heirs, was interested in having these notes go into the administrator’s hands. The defendant was called on his own behalf, and testified that the plaintiff offered to sell him his two notes for $600, and, wThen he asked her how she came to get them, she answered that it made no difference to him as long as he got them. Another niece of the deceased, Mrs. Ury, testified that she went to see him two or three times a week, and was with him from the afternoon of the day before he died; that she observed the plaintiff trying to get some papers from the desk without being observed; that the next morning she ordered the witness and the nurse several times to go out of the room, and the last time closed the door, went to the desk, on which there were papers, looked at the deceased, put the papers in her breast, and left the room. In rebuttal the plaintiff denied that she offered to "sell the notes to the defendant for $600, and stated that he came to her house, and offered her $800, and she was willing to throw off $50 rather than have trouble. She denied having stolen the notes from the desk. The defendant, being recalled, denied the offer of $800.

The question was simply one of fact, and the verdict, being supported by competent and sufficient evidence, cannot be disturbed by us, if, indeed, appellant is in any condition to raise a question concerning the evidence, since he failed to move for a dismissal of the complaint or the direction of a verdict at the close of the case, thus conceding that there was sufficient evidence to carry the case to the jury. Barrett v. Railroad Co., 45 N. Y. 632; Paige v. Chedsey, 4 Misc. Rep. 183; 53 S. R. 190.

The appellant claims that certain evidence was erroneously excluded. Thus, the witness Mrs. TFry was not allowed to answer the question who nursed the deceased during his illness; but it appears that evidence was immediately afterwards admitted that deceased had a day nurse and a night nurse, and the error, if any, was cured. Error is alleged in sustaining objections to the questions put to the plaintiff on cross-examination as to whether the deceased paid her board or contributed to her share of the expenses of her flat while living with her. The evidence sought to foe elicited was immaterial, since plaintiff did not claim that the notes were given in payment of services or for an indebtedness, but that they were a gratuity, and in return for her kindness to him; and it is not to be presumed that such kindness consisted of free board to a man of ample means. It seems that some of the more delicate and onerous duties of the sick room were performed by the plaintiff at the request of the deceased, who preferred her to his nurses; and it was wholly immaterial, considering that she was his sister, whether he paid board or contributed to her rent,, if her sympathy and attention were calculated, in addition to the natural claims of kindred, to excite his gratitude and' generosity.

Judgment affirmed, with costs.

All concur.


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    Flora Pohalski v. James Ertheilier et al.

    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Conspiracy—Evidence.
    Where an action to recover chattels is defended on the ground that plaintiff purchased them, with notice, at a sale made with intent to defraud the seller’s creditors, evidence as to the conduct of third persons, alleged to have been parties to the fraud, is admissible, though plaintiff was not connected with them.
    3. Evidence—Best and secondary.
    The acquittal of a person charged with a crime can be proved only by the record, and not by parol testimony.
    3 Sale—Bona ride purchaser—Suspicion or rraudulent intent.
    A purchaser of goods from a seller who disposes of them with intent to defraud creditors is not chargeable with notice of such intent merely because he suspected the seller’s bad faith.
    Appeal from city court of New York, general term.
    Action by Flora Pohalski against James Ertheiler and others, as indemnitors of the sheriff, and substituted as defendants in his stead, to recover certain merchandise consisting of a quantity of cigars which were alleged to be the property of plaintiff, and to have been wrongfully taken from her possession. . The defense was that plaintiff acquired possession under a sale made with intent on the part of the seller to defraud his creditors, of which plaintiff had notice, and that such merchandise was taken by the sheriff under attachment against the seller. A judgment in favor of defendants was affirmed by the city court, and plaintiff appeals.
    Otto Horlitz, for appellant.
    David Leventritt and Otto Irving Wise, for respondents.
   BISCHOFF, J.

Upon evidence, the sufficiency of which to warrant a finding that the sale of the cigars to the plaintiff was made by the debtor with intent to defraud his creditors, and that the plaintiff had notice of such intent, is not contested upon this appeal, the issues were submitted to the jury, and by the latter resolved for the defendant. Hence, though the plaintiff may have been a purchaser for value, the sale was void as to such creditors. 2 Rev. St. (Banks & Bros.’ 9th ed.) p. 1887, §§ 1, 4, 5. The judgment is, however, assailed for certain alleged errors in (1) the admission of evidence at the trial, (2) the refusal of the court to charge as requested, and (3) the charge as made. The defendant’s efforts at the trial were aimed to show a conspiracy between the debtor and others, including the plaintiff, to defraud the former’s creditors by the transfer and secretion of his property, and to that end the defendants offered testimony with regard to the conduct of the several persons charged as conspirators, which, in the instances appearing from the exceptions, was admitted. It is urged for the appellant that the rulings were erroneous, because the plaintiff was not “connected” with the facts involved in the testimony. But, clearly, the testimony was properly admitted. The, debtor’s intent was a constituent of tlie defense, and his transactions with others than the plaintiff, about the time of the sale to the latter, were competent, relevant, and material evidence as bearing upon such intent. Manufacturing Co. v. Turner, 84 Ala. 523, 4 South. 658; Howe v. Reed, 12 Me. 515; Blake v. White, 13 N. H. 267. Furthermore, the exceptions do not present error. The defense involved a charge of a conspiracy. What the persons charged as conspirators severally did in and about the property and affairs of the debtor was, therefore, competent evidence. Dewey v. Moyer, 72 N. Y. 70. In most cases an abstract consideration of the several evidential facts would not suffice to show their relevancy or materiality to the alleged ultimate fact. A concrete consideration of the evidential facts may demonstrate the existence of such ultimate fact. Segregated, the evidential facts rarely, if ever, appear to be relevant or material. Aggregated, their relevancy or materiality may foe irrefragable.' Logically, therefore, no error is to be predicated of the admission of competent evidence, the irrelevancy or immateriality of which is not apparent at the time. If the rule were otherwise, it would be difficult to conceive a case where error could be avoided, except at the risk of a denial of redress. It was incumbent upon the plaintiff’s counsel, therefore, when the prejudicial character of the testimony objected to was apparent from the defendants’ subsequent failure to connect the plaintiff with the facts in evidence therefrom, to ask the trial court to strike such testimony out, and to instruct the jury to disregard it. An exception to an adverse ruling upon such a request, and not otherwise, would have enabled us to consider the effect of the admission of such testimony. U. S. Vinegar Co. v. Schleger, 143 N. Y. 537, 544, 62 St. Rep. 826.

On cross-examination of the plaintiff’s witness Weinberg, the latter was permitted, under objection by the plaintiff’s counsel, to answer the questions: “Were you sworn as a witness in the Tombs police court in March, 1895, on a charge of larceny brought against Mr. Miller by Rosenstein [the debtor]?” and, “And later, in the special Sessions, on May 1st?” Miller was a witness in this action for the defendants, and Weinberg’s answers to the questions alluded to were sought to elict new matter. It is urged that the testimony was incompetent, irrelevant, and immaterial. Here again the irrelevancy and immateriality of the testimony were not apparent at the time of its admission, and the absence of an exception to the denial of a motion to strike the testimony out, and to instruct the jury to disregard it, precludes us from considering its effect. The testimony was competent in so far as it tended to show that the witness had been examined on the occasions alluded to in the questions, and enabled the defendants to lay a foundation for the introduction of impeaching evidence. The fact that the charge of larceny was preferred by Rosenstein may not have been admissible, but the plaintiff’s counsel did not limit his objections to evidence of that fact. His objections comprehended evidence which was admissible, and they were for that reason properly overruled. Bosley v. Machine Co., 123 N. Y. 550, 557, 34 St. Rep. 277; McCabe v. Brayton, 38 N. Y. 196; People v. Beach, 87 N. Y. 508, 512. The next question, “Do you know Miller was acquitted ?” was objected to as leading, and as calling for incompetent evidence. With regard to the first objection, the allowance of the question rested in the discretion of the trial court, with the exercise of which, in the absence of abuse, or where no apparent prejudice has resulted, the appellate court will not interfere. Walker v. Dunspaugh, 20 1ST. Y. 170; 1 Rice, Ev. 606. The evidence, however, AAras incompetent as hearsay, the fact of the acquittal being provable by the record only. Newcomb v. Griswold, 24 N. Y. 298. It was admitted in furtherance of the defendants’ object to shoAv that, after Miller had refused to verify a statement tending to exonerate the debtor from the imputation of a fraudulent design toAA-ards his creditors, he (the debtor) made a groundless charge against his former employe. The fact of the acquittal, therefore, Avas material, and the error alluded to cannot be said to have been harmless.

The trial court refused to charge “that the plaintiff is entitled to a verdict, the defendants not having established by any proof any justification for the seizure of the goods,” the accuracy of the request of the plaintiff’s counsel being predicated exclusively of the fact that the attachment proceedings alluded to in the answer, and the indemnity bond, were not given in evidence. The refusal to charge was obviously right. There was no evidence to indicate that the defendants had in any manner participated in the seizure of the property, or authorized or directed such seizure by the sheriff; and, failing evidence tending to fix liability upon the defendant either as tort feasors or indemnitors, the plaintiff was not entitled to recovery against them. Again, in the absence of evidence charging the defendants with liability as tort feasors, the prosecution of the action, and the litigation of the question of fraud in the sale hereinbefore alluded to, were consistent only with an admission by all the litigants that the sheriff liad seized the property in suit under process directed to him, and for the execution of which, against the property seized, the defendants had assumed to be amenable as indemnitors. Code Civ, Proc. §§ 658, 1419, 1421. Only upon the theory of such an admission, in the absence of evidence charging the defendants with liability as tort feasors, was the issue of fraud material, or evidence with regard to it relevant; and only upon the same theory could the plaintiff have asserted a right to recover against persons other than the sheriff, who alone was charged by the evidence with liability as a tort feasor. No position can be assumed on appeal which is in conflict with the one assumed for the purposes of the trial. Fay v. Muhlker, 1 Misc. Rep. 321, 48 St. Rep. 699; Carter, Rice & Co. v. Howard (Slip.), 39 N. Y. Supp. 1060 (not officially reported); Bigelow, Estop. 578; 7 Am. & Eng. Enc. Law, 22, note on “Inconsistent positions in legal proceedings generally”; 2 Enc. PL & Prac. 516, 519. Nor will an appellant be permitted to avail himself of a point not raised or intended to be raised by him at the trial 5 Silvernail, 142, and cases collated in note.

The court charged that “if, by the circumstances which were known to the plaintiff, she was put upon her inquiry regarding the purchase and intention of Rosenstein [the debtor and seller] respecting his creditors, and, being put upon inquiry, she nevertheless made this j3urchase, that she took the risk of the purchase, and coidd not recover.” The plaintiff’s exception thereto presents error.

The charge was vicious, in that it involved the erroneous proposition that the purchaser’s mere suspicion of the seller’s bad faith respecting his creditors is equivalent to notic'd to the purchaser of the seller’s intended fraud, and eliminated from consideration the purchaser’s iliability, upon reasonable inquiry, to ascertain the fact of such intended fraud. Actual notice alone, or that which in legal in tendment is the equivalent of actual notice,—the omission of reasonable inquiry whereby the fact would have been ascertained, after suspicion was aroused, or the person to be charged with notice was “put upon his inquiry” (16 Am. & Eng. Enc. Law, 972, and cases collated in note 2), on the part of a purchaser for value, of the seller’s intended fraud towards his creditors,—will avoid the sale as to the latter. Parker v. Conner, 93 N. Y. 123.

For the errors in the admission of evidence, and in the charge, the judgments of the general and trial terms of the court below should be reversed, and a new trial ordered, with costs to the appellant to abide the event;

All concur.


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    Lincoln Nat’l Bank of City of New York v. Harford B. Kirk et al.

    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Witness—Credibility—Parties.
    The rule which makes the credibility of a party as a witness in his own behalf a question for the jury where he is uncorroborated, though he is also uncontradicted, does not apply where there is no conflict in the evidence, and there are no circumstances from which an inference might be be drawn against the facts testified to.
    Appeal from city court of New York, general term.
    Action by the Lincoln National Bank of the City of New York against Hartford B. Kirk, Henry F. Moore, and John P. Beecker on a promissory note made for the accommodation of one of the makers, and discounted at his request. A judgment in favor of plaintiff was affirmed by the city court (39 N. Y. Supp. 1127), and defendants, Kirk, Moore, and Beecker, appeal.
    George Putman Smith, for appellants.
    A. J. & I. M. Dittenhoefer, for respondent.
   BISCHOFF, J.

The action was upon a promissory note for $1,000, without interest, payable four months after date, and made by II. B. Kirk & Co. in their firm name to the ' rder of the defendant Break, the firm name being at that time composed of all the defendants. The only defense litigated was that the note was issued by the payee for his own accommodation, and at his request discounted by one B. L. Luddington, pursuant to an agreement whereby the former consented to a deduction from the face amount of the note of a sum equal to the interest at the limit of the legal rate,—6 per centum per annum,—and promised to pay $50 additional. The note was produced upon the trial by the plaintiff, and bore the indorsements only of the payee and of Marietta Luddington, the wife of B. L. Luddington, in the order as named. Two witnesses only were called,— B. L. Luddington for the plaintiff, and Breek, the payee, for the defendants. The testimony of these witnesses, with the note and the certificate of protest, at the request of the plaintiff, and two checks, alluded to by the witnesses,— one by Mrs. Luddington, to the order of H. B. Kirk & Co., admittedly received by the payee, and for the amount of the note, less a sum equal to the interest at the rate of 6 per centum per annum; and the other, for $50, given by the •payee to B. L. Luddington,—was all the evidence adduced. Luddington testified to the effect that when the payee applied to him to discount the note for the makers he undertook to have such done by the plaintiff explicitly, and upon Mrs. Luddington’s indorsement, in consideration of the payee’s promise to suffer a deduction equal to the interest at the limit of the legal rate, and to pay him (Luddington) $50 for his services in the procuration of such indorsement and discount. He further testified that the note was thereupon indorsed by Mrs. Luddington, and so discounted by the plaintiff at the rate of 5 per centum per annum, the avails being credited to Mrs. Luddington’s account with the plaintiff; and that later he paid payee, by Mrs. Luddington’s check upon such account to the order of H, B. Kirk & Co. the makers, the amount of the note, after deducting therefrom a sum equal to the interest at the rate of 6 per centum per annum, and received from the payee, Breck, by check to his order, $50 for his services, as agreed. Breck’s version of his negotiations with Luddington only differed from the latter’s in so far as the former denied that anything was said with regard to either Mrs. Luddington’s indorsement or a discount of the note by the plaintiff, and that he had any recollection that the $50 were stated to be for Luddington’s services. In other words, Breck’s testimony was to the effect that he supposed he was dealing with Luddington as the proposed lender. The trial court directed a verdict for the plaintiff in the full amount of the note, with interest from its maturity, and protest fees added, to which direction the defendants (appellants) excepted.

The burden of the present appeal is that, because Luddington was a witness interested in the event of the action, his credibility was to be determined by the jury, and that, therefore, it was error to withdraw the case from the latter’s consideration. We do not accede to the defendants’ appellants’) contention, and are of the opinion that the case was rightly disposed of in the court below. The evidence-was, in any aspect thereof, insufficient to support the defense and the withdrawal from the jury of immaterial questions of fact is not error. Baldwin v. Doying, 114 N. Y. 452, 23 St. Rep. 759. The defense was that the note was void in the hands of the plaintiff for usury on the part of B.

L. Luddington, an alleged prior holder. The answer did not specifically mention Luddington as a holder, but obviously, usury, in the case at bar, was predicable only of an agreement for excessive interest on the part of the holder of the note. Without substantiation of the defense by sufficient evidence, the mere production of the note by the plaintiff entitled the latter to a recovery. Lawson, Pres. Ev. 77; Bank v. Crow, 60 N. Y. 85; Bank v. Livingston, 6 Misc. Rep. 81, 55 St. Rep. 394. The rule AA'hich requires the submission of the testimony of a witness shoAArn to have an interest in the eArent of the action to the jury does not apply to a case AA'here there is no conflict in the evidence, or there are no circumstances from Avhich an inference against the facts so testified to can be draAvn. Kelly v. Burroughs, 102 N. Y. 93, 1 St. Rep. 161. It does not go to the length of enabling the jury to find, without evidence, a state of fact in conflict with the facts as they appeared from the testimony rejected. Disregarding Luddington’s testimony, which, in the-light of the defense, Avas in effect no more than a denial that he personally discounted the note, Avhat Avas there in the evidence to shoAV that he did discount it? Seemingly at a loss to point at anything, the counsel for the defendants (appellants) contents himself in his brief with saying that Luddington “undertook” to discount the note. The circumstance of Mrs. Luddington’s check to the order of the defendants, however, tended rather in the direction of Luddington’s denial of having discounted it for himself, and from Break’s version of his negotiations with Luddington it at most appeared that the latter entered into an executory agreement to discount the note for his OAvn account, at a rate exceeding the limit of the legal rate of interest. For aught that appears, Luddington never was a party to the note, as holder or otherwise, and his agreement to discount the note for himself Avas never consummated. It is mere surmise or conjecture, therefore, to say that the note ever had an inception in Lad-, dington’s hands, or that he Avas at any time more than its-custodian. His mere proposal to discount the note at a usurious rate could not have the effect of tainting it AA’itli usury in the hands of one who subsequently acquired it neither from him nor a person in privity with him, but from the original parties, or some one in privity with such parties. To say that the evidence warranted a finding of usury by Luddington, and the avoidance of the note in the plaintiff’s hands, would require our approval of the proposition that the negotiability of a promissory note is forever destroyed after it has once been exposed to an offer to discount it at a usurious rate, and that by one not a party thereto. The circumstances present no element of an estoppel against the plaintiff. Hence the payees’ or makers’ belief that they Avere dealing with Luddington as lender Avas wholly immaterial. Lee v. Chadsey, 3 Abb. Dec. 43. Probably in view of the force of what has been said the counsel for the defendants (appellants) urges that the jury were authorized by the evidence to find that the note Avas first discounted by Mrs. Luddington acting by her husband as her agent, and to impute her agent’s exaction of more than the limit of the legal rate of interest to her. A conclusive ansAver thereto, hoAvever, is that the defense, as alleged, Avas not predicated of an agreement Avith or a loan by Mrs. Luddington, but of an agreement with and a loan by her husband, and that no amendment of the answer was asked for or had. We cannot infer the substitution and litigation by consent of the parties of a different issue, since the evidence submitted without objection was admissible under the issue made by the pleadings; nor should an amendment of the ansAArer be alloAved upon appeal only to enable us to reverse the judgment. Furthermore, Mrs. Luddington’s assent to her agent’s exaction of more than legal interest Avas a constituent of the defense of usury upon her part (27 Am. & Eng. Enc. Law, 1004, and cases there collated), and the evidence was not open to a finding of the fact of such assent. Clearly, a verdict for the defendants upon the issue made by the pleadings and tried would have been contrary both to the law and to the evidence.

The judgments of the general and trial terms of the court beloAV should be affirmed, with costs.

All concur.


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    Elwood S. Hand v. William A. Shaw et al.

    (Supreme Ourt, Appellate Term, First Department,
    September 28, 1896.)
    COS TEA CTS—IKTERPKETATIOHA
    A contract that defendants will pay to plaintiff a certain sum "in trade,’’ the amount “to be deducted from merchandise to he sold for a proposed nerv hotel other than has been estimated or contracted for at this time,” does not entitle plaintiff to such deduction unless at the time of making the purchase he notified defendants that the goods were intended for a proposed new hotel.

      Appeal from city court of New York, general term.
    Action by Elwood S. Hand against William A. Shaw and James K. Shaw for breach of contract. A judgment in favor of plaintiff was affirmed by the city court (38 N. Y. Supp. 965), and defendants appeal.
    John Henry Hull and D. J. Newland, for appellants.
    Chas. De Hart Brower, for respondent.
   BISCHOFF, J.

—The defendants were dealers in crockery, china and glass ware, and the action proceeded as one for damages for their alleged breach of contract in having, by their refusal to sell merchandise, at the plaintiff’s solicitation, “for a proposed new hotel,” prevented the event upon the occurrence of which the latter’s right to payment, under the provisions of the .following written contract, dated October 19, 1889, for the advertisement therein alluded to, was dependent, viz.:

“ In consideration of the insertion of our advertisement to occupy one page, a copy of which we will furnish, in the “book descriptive and illustrative of the Hotel Iroquois, Buffalo, New York, we promise to pay to the order of E. S. Hand, two hundred and thirty-five dollars in trade, after publication of and the delivery to us of a specimen copy of the same. This amount to be deducted from merchandise to be sold for a proposed new hotel other than has been estimated or contracted for at this time, and is not transferable to any account without our consent.

Besides denying any breach of contract upon their part, the defendants, as a further defense, interposed that they were induced to make the contract by material misrepresentations upon the plaintiff’s part. After the parties had, at the trial, severally ceased the introduction of evidence, it appeared in support of the action that the advertisement was published, and a specimen copy of the book delivered to the defendants, as agreed; that thereafter, in July, 1894, the plaintiff had called at the defendants’ place of business, and selected from among their stock merchandise of the value at the aggregate prices fixed for the several items, of $241.15; that he had offered to purchase such merchandise by crediting the defendants with $235 in payment for the advertisement, and paying the excess of the purchas'e money in cash; and that the defendants had declined and refused to accede to his offer upon the terms suggested. It further appeared, from the plaintiff’s testimony, that at the time of his offer to purchase the merchandise selected by him, he contemplated the erection of a hotel at Southport, Conn., to which end he had secured building material, and caused plans, to be prepared, and that the merchandise was designed by him for such hotel; but it did not in any wise appear that he had at any time apprised the defendants, or that the latter knew that the merchandise last alluded to was intended by the plaintiff “for a proposed new hotel,” or any hotel whatever at Southport, or elsewhere. It was conceded that the language “estimated or contracted for” applied to an estimate or contract by the defendants. Such being the state of evidence, the defendant’s counsel moved the dismissal of the complaint, upon the specific ground, among others, that there was a failure of proof with regard to any breach of contract upon thé defendants’ part, in that “ there could not be a breach until some proposed new hotel was brought to the attention of the defendants, and it was shown to them that the merchandise" that plaintiff claimed was to be deducted from the amount of merchandise that they had sold the hotel,” which we understand to imply that no breach of contract upon the defendants’ part was apparent from their refusal to sell merchandise to the plaintiff in the absence of evidence showing or tending to show either that the defendants knew or that they had been apprised of the plaintiff’s design of the merchandise, which he had offered to purchase, “for a proposed new hotel.” We are of the opinion that the defendants’ motion upon the ground alluded to above was forceful, and that the exception which was taken to its denial presents error for which the several judgments of the court below must be reversed.

The defendants’ promise to pay for the advertisement was conditioned upon their receiving an order for merchandise “for a proposed new hotel” other than a hotel “estimated or contracted for” when the contract was made, and they were entitled to notice from the plaintiff, when he gave the order, that the merchandise was “for a proposed new hotel,” and of the particular “proposed new hotel” for which such merchandise was intended. We grant that the defendants’ promise to pay for the advertisement out of merchandise, or the avails of merchandise “to be sold” by them “for a proposed new hotel,” precluded them, except for reasonable cause, from declining or refusing to make such a sale, when solicited by the plaintiff, in good faith, so to do. But the sale of merchandise which the defendants were required to undertake for the maturity of' the plaintiff’s right to payment for the advertisement was one “ for a proposed new hotel” other than a hotel, which, at the time of the making of the contract, had been “estimated or contracted for” by them. The inevitable meaning conveyed by this language of the contracting parties made notice by the plaintiff to the defendants of the former’s design of the merchandise “for a proposed new hotel,” and of the particular “proposed new hotel” for which the merchandise was designed, obligatory when the sale at as solicited. The duty to give such notice arose by necessary implication, and its performance was, therefore, a condition precedent to the plaintiff’s right to insist upon the sale. By no other means could the defendants haAre lcnoAvn as they had a right to know, before concluding the sale, that the merchandise AAras designed “for a proposed neAV hotel,” and that the “proposed neAV hotel” AA-as not one for which they had “estimated or contracted” at the time they made the contract for the alleged breach of AAdiich this action Avas brought.

The defendants’ promise Avas twofold: to sell merchandise “for a proposed new hotel” other than a hotel “estimated or contracted for” by them when they made the contract, and not of such merchandise, or the aA'ails of the merchandise upon such a sale, to pay the plaintiff for the advertisement. Performance of the promise to sell AAras made to precede performance of the promise to pay. The occurrence of tAA’O events, therefore, was requisite to the maturity of the defendants’ dual promise,—the opportunity for a sale of the kind described, and the sale; and without evidence of the occurrence of these events, or the prevention of either by the act of the defendants, no cause of action upon the latter’s promise to pay, or for a breach of contract upon their part, was extant. As before stated, this action was not predicated of the maturity of the defendants’ promise to pay for the advertisement by reason of the occurrence of the events upon AAdiich such maturity was made to depend, but of the defendants’ alleged prevention of the occurrence of such events by their refusal to sell merchandise, as agreed “for a proposed new hotel” other than a hotel “estimated or contracted for” by them at the time mentioned, when the plaintiff furnished opportunity -for such a sale. Obviously, if the plaintiff omitted the performance of the condition precedent to his right to insist upon a sale by the defendants notice by him to them, at the time of the solicitation of the sale, that the merchandise was designed “for a proposed new hotel,” and of the particular “proposed neiv hotel,” the defendants were not required to make the sale, and their refusal to sell aaus not, therefore, a breach of contract upon their part. Without such notice, the defendants could not be said to haATe had opportunity for such a sale, and the plaintiff’s withholding of the notice was, in effect, an act of prevention by him of the defendants’ performance of their obligation to sell; and so the defendants were not charge■able with a prevention of the event upon the occurrence of which their promise to pay for the advertisement and his right to insist upon such payment was made to mature. The ■opportunity for a sale of merchandise by the defendants, to or through the plaintiff, “for a proposed new hotel” other than a hotel “estimated or contracted for” by the former at the time when the contract was made, was an event the occurrence of which was a fact peculiarly within the latter’s knowledge; and without notice from the plaintiff, therefore, the defendants were without the means of knowing that the period for the performance of their obligation to sell had arrived, or the opportunity was at hand. Upon ■principle, as well as authority, the giving of notice of such •occurrence by the plaintiff was, under the circumstances .a condition precedent to the maturity of the defendants’ promise to sell merchandise “for a proposed new hotel” ■other than a hotel “ estimated or contracted for” by the defendants when the contract was made, and out of the merchandise so sold, or the avails of such merchandise, to pay the plaintiff’s demand for the advertisement, although such notice was not expressly provided for. “As a general rule,” says the author of Benjamin" on Sales (4th Am. Ed., sec. 577), “a man who binds himself to do any tiling on the happening of a particular event is bound to take notice, at his own peril, and to comply with his promise when the event happens. But there are cases in which, from the very nature of the transaction, the party bound ■on a condition of this sort is entitled to notice from the other of the happening of the event on which the liability depends. * * * And it seems that this is the true test, ■viz.: that if the obligee has reserved any option to himself by which he can control the event on which the duty of the obligee depends, then he must give notice of his own act before he can call upon the obligor to comply with his engagement.” This is consonant with what was ruled in Vyse v. Wakefield, 6 Mees, and W. 453: “ Where a party contracts to do a thing in a certain specific event ivith which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; and when it is .an event which lies within the peculiar knowledge of the opposite party, then notice ought to be given him;” and in Makin v. Watkinson, L. R. 6 Exch. 25; “ The reason of the rule is that, when a tiling is in the knowledge of the plaintiff, but cannot be in the knowledge of the defendant, but the •defendant can only guess or speculate about the matter, then notice is necessary.” This rule is assuredly grounded in justice and common sense. Its observance will always secure opportunity for performance to all who are actuated by a just sense of their contractual obligations, and will protect them against the furtive attempts of others to place the former in default. Wangler v. Swift, 90 N. Y. 38, 43 ; 1 Whart. Cont. sec. 571; Clark, Cont. 667; 16 Am. and Eng. Enc. Law, 808; 5 Lawson, Rights, Rem. and Prac. p. 4151, sec. 2507. Our conclusion in respect to the exception to the denial of the motion for the dismissal of the complaint renders a discussion of the remaining exception, needless.

The judgments of the general and trial terms of the court below are reversed, and a new trial is ordered, with costs-to the appellants to abide the event.

All concur.


text:
    Michael Goodwin v. Eliabbeth Bayerle et al.

    (Supreme Court, Appellate Term; First Department,
    September 28, 1896.)
    Chattel mortgages—Failure to file—Subsequent mortgages.
    Laws 1838, c. 279, providing that a chattel mortgage, unless filed, is void' as to subsequent moitgages in good faith, does not apply where plaintiff, the subsequent mortgagee, was a cousin of the mortgagor, and knew, when he received bis mortgage, that the mortgagor had theretofore given a mortgage on the chattels, though he informed plaintiff that the first mortgage had been paid, and plaintiff, before taking the second mortgage, ascertained that no chattel mortgage was on file.
    Appeal from third district court.
    Action by- Michael Goodwin against Elizabeth Bayerle, as administratrix of Henry Keller, deceased, and another, to recover possession of a horse, wagon and harness. The complaint was dismissed against defendant William Gubner, and said Gubner appeals.
    Jonas Cochrane and Smith & Cochrane, for appellant.
    P. A. McManus, for respondent.
   DALY, P. J.

—The plaintiff has recovered judgment against one of the defendants, William Gubner, for the possession of a horse, wagon and harness, which were mortgaged to the plaintiff by Patrick Carlin on February 1, 1896. The defendant, a livery stable keeper, was the bailee of Mrs. Bayerle, the administratrix of Henry Keller, a prior mortgagee from Carlin, whose mortgage had not been filed; and the issue in the case was whether the plaintiff was a subsequent mortgagee in good faith at the time he took the second mortgage. If "he were then the untiled mortgage was void as to him, and the judgment was proper. Laws: 1833, chap. 379; Rev. St. (9th Ed.) p. 2013. The plaintiff is a cousin of Carlin, the mortgagor, and before he received his mortgage he knew that Carlin had bought the horse and wagon from Keller, and had given the latter a chattel mortgage for part of the purchase money. Carlin informed him of the purchase and mortgage at the time they were made,-— September, 1895, — and when, in February subsequently, Carlin applied for a loan, and offered the property as security, he informed plaintiff that the Keller mortgage had been paid. Plaintiff had heard that Keller was dead, and, before advancing the money, he went to a lawyer, and directed him to find out if there was any mortgage on record. The lawyer informed him that there was no mortgage on record, and thereupon he advanced the money to Carlin, and took a mortgage for it. Having had notice of the existence of the prior mortgage, plaintiff was bound to use diligence to ascertain if it had been paid. It was not sufficient to inquire- if it had been recorded, since he already had the notice which the filing would have given him, and the fact of nonfiling conveyed no information as to payment or satisfaction. His inquiry should have been of the mortgagee’s personal representatives to ascertain if the mortgage had been satisfied. It is true that Carlin told him it had been paid, but he did not rely upon Carlin’s statement, for he employed a lawyer to inquire if it had been recorded. In Mack v. Phelan, 92 N. Y. 27, it is said:

“The purchasers relied alone upon the statement of the mortgagor in respect to the lien. * * They made no-inquiry of the mortgagee, nor did they go to the mills where the mortgaged property was stated in the mortgage to be, to-ascertain whether there were machines there to correspond to those described in the mortgage. Under the circumstances, it might, we think, be held as matter of law that they used due diligence in prosecuting the inquiry to ascertain whether the property purchased was covered by the mortgage.”

The plaintiff not only did not seek the representatives of the mortgagee in order to ascertain if the mortgage had been paid, but he did not even ask Carlin to produce the mortgage, or the mortgagee’s receipt for payment. It may be said that plaintiff had the same authority for believing the mortgage to be paid that he had for its existence, namely, the mortgagor’s word; but he should have considered that when Carlin told of the mortgage, he had no motive to misrepresent the facts, and that there might be such a motive when he desired, to secure another loan upon the same property. That plaintiff appreciated the difference is shown by the fact that he did not rely implicitly upon Carlin’s statement, but employed a lawyer to make a search of the records. It would seem, therefore, that plaintiff, having knowledge of the prior mortgage, and not having made ■any effort to ascertain that it was paid, cannot be deemed a subsequent mortgagor in good faith, and is not entitled to the property as against the prior mortgagee or her bailee.

Judgment reversed. Judgment against William Gubner reversed, with costs.

All concur.


author: LALY, P. J.

text:
    Rebecca Goldstein v. Charles Greenberg et al.

    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    Appeal—Modification of judgment—Increasing amount.
    Where a judgment for plaintiff in an action for wages earned by a female employed other than as a domestic servant fails to award the five dollars additional costs, as provided by Laws 1882, c. 410 (Consolidation Act) §8 1420, 1424, it may, on appeal, be modified by adding such additional costs.
    Appeal from fourth district court.
    Action by Rebecca Goldstein against Charles Greenberg and' another for wages other than as a domestic servant. Judgment ivas rendered in favor of plaintiff, but the justice omitted to insert the five dollars additional costs, and plaintiff appeals.
    Isaac A. Hourwich, for appellant.
    Abraham D. Levy, for respondents.
   LALY, P. J.

—As the action was for wages earned by a female employed other than as a domestic servant, and the amount of damages recovered was less than $10, plaintiff is entitled to $5 additional costs, and the justice should have inserted that amount in the judgment. Laws 1882, c. 410 (Consolidation Act) sees. 1420, 1424. As the respondent does not dispute this, and there is no question upon which a new trial need be ordered, we shall direct that the judgment be modified by adding the $5 additional costs. Where there is a mere error in a matter of figures, and a new trial will not change the result, a judgment may be modified even by increasing the amount of the recovery. Golde v. Whipple, 7 App. Div. 48, 39 N. Y. Supp. 964.

The judgment modified accordingly, without costs to either party.

All concur.


text:
    Thomas McLaughlin v. Peter Gillings.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. ÍTovation—What constitutes.
    Plaintiff being indebted in separate amounts to defendant and another, gave defendant an order on one B. for the aggregate amount, and defendant agreed to collect it, and to pay over to the other creditor the amount due him. Held, not a novation, though the other creditor assented to the arrangement.
    2. Release—Agreement by third person to pay creditor.
    An agreement between plaintiff and defendant that defendant will pay a debt due from plaintiff to a third person, though founded on a valuable consideration, does not release plaintiff from liability to such third person.
    Appeal from eleventh district court.
    Action by Thomas McLaughlin against Peter Gillings. There was a judgment in favor of plaintiff, and defendant appeals.
    Earley and Prendergast, for appellant.
    Robert Lyon, for respondent.
   McADAM, J.

—According to the facts as found by the justice, the plaintiff was employed by Gen. Earle to do certain work on the Washington House, between 159th and 160th streets, this city. The defendant did certain of the work for the plaintiff, and his bill amounted to $290. He wanted his money, and the plaintiff promised to give him an order on Gen. Earle for it, but added: “Mr. Robinson, my foreman, has $75 coming to him, and I would like to make the order $365, so that when you collect the order you may turn $75 over to Mr. Robinson, which will settle my account with him.” The defendant agreed to this. The order was accordingly made out for $365, and the defendant obtained the money on it from the drawee, but refused to pay Robinson his $75. The plaintiff, upon demand therefor, paid Robinson the $75 he owed him, and brought the present action to recover the amount from the defendant. The plaintiff declared for “money paid by mistake,” but on the trial, without objection amended his complaint by claiming for “money had and received.” Robinson was present when the arrangement was made, and assented to it, and from this the defendant argues that there was a complete substitution of parties; that the plaintiff was discharged, and the defendant instead became the debtor of Robinson. The legal results flowing from the acts of the parties will be separately considered.

1. Gen. Earle, by accepting the plaintiff’s draft, admitted that he had funds of the drawer sufficient to meet it. Daniel, Neg. Inst. sec. 534. Though as between himself and the drawer, it was only prima facie evidence of the fact (Id.), yet, as the presumption was neither successfully rebutted nor questioned in the court below, we must assume that the parties intended it should receive the credit which presumptions are accorded in courts of justice (Herm. Estop, sec. 343).

2. The transaction did not amount to a novation. The plaintiff owed Eobinson $75. The defendant was not indebted to either, and did not agree to become Robinson’s debtor in the place of the plaintiff. “The promise by a third person to apply the debtor’s own property to pay his debt is not a promise by a third person to pay it himself.” Lippineott v. Ashfield, 4 Sandf. 615; De Col. Guar. & Prin. & Sur. (Am. Notes by Morgan) 84, 85. No new debt was substituted for the old one. The defendant simply agreed' to collect $75 for the plaintiff, and pay it over to Eobinson, who agreed to accept the money from the defendant as the plaintiff’s agent; but until the actual payment of the money the plaintiff continued to be Eobinson’s debtor. Such is the construction of the transaction as the parties understood it, and effect should be given to their intention. Novation is never presumed, and must be clearly established by a full discharge of the original debt, the express terms of the agreement, or the acts of the parties whose intention must be clear. 16 Am. & Eng. Enc. Law, 868; 5 Lawson, Rights, Rem. & Prac. sec. 2572. To constitute a novation, there must be a mutual agreement among three parties, the creditor, his immediate debtor, and the intended new debtor, by which the liability of the last-named is accepted in the place of the originial debtor in debtor of the original debt; if the liability of the original debtor continues, there is no consideration for the new contract, and no valid substitution takes place. Add. Cont. (2d Am. Ed.) 1004; Poth. Obl. (3d Am. Ed.) marg. p. 546; Clark, Cont. (Hornbook Series) 612; 1 Pars. Cont. (6th Ed.) 218; Jaudon v. Randall, 47 N. Y. Super. Ct. 374. In Coxon v. Chadley, 3 Barn. & C. 591, the court said: “Sweet is not proved ever to have said, ‘I will take you, Robert, as my debtor, and discharge James.’ He is not proved ever to have said or done that which would have the effect of discharging James.” Hence there was no novation. Whether there has been a consent of all the parties sufficient to constitute a novation is a question for the jury. Dean v. Board, 73 Mich. 165, 41 N. W. 218; Lynch v. Austin, 51 Wis. 287, 8 N. W. 129. The court below found that there had been no novation; that the transaction was merely an attempt by the plaintiff to pay Robinson by means of the draft on Earle. If the defendant, when he collected the draft, had performed his promise, and paid the $75 over to Robinson, the debt against McLaughlin would have been extinguished, and every possible controversy avoided.

3. The fact that the transaction gave Robinson the right to sue Gillings on his promise to pay him the $75 owing by McLaughlin (Lawrence v. Fox, 20 N. Y. 268, and kindred cases), if he had elected that remedy did not in the absence of such election (Mills v. Parkhurst, 126 N. Y. 89, 36 St. Rep. 512), prevent Robinson from enforcing his demand against McLaughlin, his original debtor, whom he had not released. A. cannot discharge his debt to B. by arranging with C., even upon a good consideration, that the latter will pay the debt to B.; nor can he compel B. to sue C. on Ms promise to pay. Even if B. should at first assent to the suggestion, he could not be held bound, in the absence of proof of novation by his actual acceptance, or some new consideration to Mm whereby he had concluded Mmself upon the subject. The direction to C. until payment by him, or or such conclusive acceptance, would be revocable by A. as a mere naked authority. Judge Comstock, in his dissenting opimon in Lawrence v. Fox, supra, made tMs pertinent statement (which is not at variance with the decision there rendered) %

“It is plain that Holly, who loaned the money to the defendant, and to whom the promise in question was made, could at any time have claimed that it should be performed to Mmself personally. He had lent the money to the defendant, and at the same time directed the latter to pay the sum to the plaintiff. This direction he could countermand, and, if he had done so, mamfestly the defendant’s promise to pay according to the direction would have ceased to exist.”

In Kelly v. Roberts, 40 N. Y. 439, the court, in reiterating the same principle, illustrates it by holding that if A. hand money to his own servant or agent, with instructions to carry and deliver it to B., which the servant or agent agrees to do, such instructions are revocable; for—

“Until such instructions have been acted upon in some manner, the servant continues the servant of A., and only his servant. So, where one hands money to his servant, agent, or friend, with a request that he visit the city and therewith pay a note due or about to become due, can it be seriously questioned that if, before anytMng further is done, such one concludes to use the money for some other purpose, or to pay some other debt, he may do so? I think not. And in cases cited [Lawrence v. Fox, 20 N. Y. 268; Berly v. Taylor, 5 Hill, 517; Williams v. Fitch, 18 N. Y. 546; Gridley v. Gridley, 24 N. Y. 130; and Lowery v. Steward, 25 N. Y. 239] do not hold the contrary, nor anything like it. * * * The simple inquiry whether, if a creditor directs his debtor to pay his note to a third person, and he assents', such creditor can revoke the direction, has never been decided in the negative, and 1 think it cannot be so decided on principle. * * * Suppose, for example, the debtor, having received such a direction, and agreed thereto, nevertheless neglects to pay any one. Can it be doubted that the original creditor could maintain an action for the original debt? It would be a good defense that he had paid it to a third person, pursuant to such an agreement; but the mere agreement, unperformed, and not acted upon at all, would be no defense.”

See, also, Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 92.

Instead of availing himself of the promise made by the defendant for his benefit, Robinson elected to pursue McLaughlin, his original debtor from whom he obtained satisfaction of his demand, thereby effectually releasing Gillings, the defendant herein, from all obligation to him resulting from his promise to pay, leaving McLaughlin, the plaintiff, to the remedy suggested by the court in Kelly v. Roberts, supra, against Gillings, the defendant, viz.: recover back the $75 on the unperformed contract; for, until appropriation according to the directions given, that sum remained the money of McLaughlin.

4. The promise to pay Robinson was conditioned upon the collection of the money, for until then there would be nothing in the defendant’s hands to pay with. When he received the money, and failed upon demand to pay the plaintiff’s debt to Robinson, he was guilty of a breach of his contract with the plaintiff, who was still interested in having his debt extinguished, and this interest was sufficient to enable the plaintiff to maintain the action for the breach. Robinson testified that he owed nothing to the defendant, a circumstance which, if true, proves that the defendant’s refusal to to pay over the $75 was capricious, and in bad faith, the risk of which Robinson never agreed to assume. Robinson did not regard the order as affecting a novation, for he demanded payment of the $75 from the. plaintiff; and the latter, apparently of the same mind, handed over that amount to Robinson, and then resorted t"o this action for the breach in the form of money had and received to and for his use. Such an action is maintainable where a party receives money belonging to another which in equity and upon principles of natural justice he should pay over to him. Cow. Treat. § 305; Roberts v. Ely, 113 N. Y. 128, 22 St. Rep. 185; Roberts v. Ellwood, 116 N. Y. 652; 26 St. Rep. 727; 4 Wait, Act. & Def. 469; Bank v. Eltinge, 66 N. Y. 625; Chapman v. Forbes, 123 N. Y. 532, 34 St. Rep. 351. No fault is found with the form of remedy, the main objection being that Robinson, and not the plaintiff, had Avhatever right of action existed against the defendant. Robinson never obligated himself to enter into any legal controversy with the defendant. He assented only to the proposition that the defendant, as the plaintiff’s agent, might pay him the $75 in discharge of the plaintiff’s obligation; but the defendant did not and would not pay it over, and Robinson accordingly pursued his remedy against the person to Avhom he had given credit. This he had a right to do. The defendant undertook to excuse the nonpayment of the money to Robinson by the plea that there was an understanding that it should be credited on an account which Robinson owed him. But the evidence so completely disproved any such contention that the appellant in his points states-that no argument is advanced on the appeal to sustain this defense, and it may therefore be regarded as no part of the case presented for review.

The judgment must be affirmed with costs.