text:
    Alice M. Allan, Resp’t, v. The State Steamship Co., Limited, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Negligence—Steamship companies—Medicines.
    Plaintiff as passenger on defendant’s steamer, at 8 f. m. on the second day out, applied to the ship’s doctor for some quinine and was given calomel instead, which caused sickness and permanent injury. Plaintiff gave evi- - dence by a passenger who applied for medicine the same evening, that he found the surgery where the medicines were kept in disorder and confusion, some of the bottles in the racks and some out. It was shown that the medicines were inspected at the beginning of the voyage by the port examiner and found properly packed and labelled. The statute required that they then shall be placed under the charge of the physician and be used at his discretion. Held, that such confusion or disorder was not such neglect of duty as to render defendant liable for the injuries sustained by plaintiff;
    2. Same.
    When the ship owner has employed a competent physician duly qualified as required by law and has placed in his charge a supply of medicine-sufficient in quantity and quality for the purposes required, which meet  the approval of the government officials, and has furnished to the physician-a proper place in which to keep them, it has performed its duty to its passengers, and errors and mistakes occurring in the use of the medicines-are not chargeable to the ship owners, whether the result of improper-arrangement in the care of the medicines or of error in' judgment.
    Appeal from a judgment of the general term of the second judicial department, which affirmed a judgment entered upon the verdict of a jury.
    This action was brought to recover for injuries alleged to have been sustained by the plaintiff upon a voyage from Glasgow to New York on the steamer “ State of Georgia, ” being the result of taking a dose of calomel which was furnished to her by the physician on board said steamer in response to a request for five grains-of “ quinine.”
    The material facts appear in the opinion.

      William D. Guthrie, for app’ít; M. L. Towns, for resp’t.

       Reversing 29 St. Rep., 288.

   Brown, J.

The learned counsel for the respondent contends •that when the plaintiff applied for quinine she had a right to rely upon receiving that medicine and if she was given anything else the defendant was liable for the injuries sustained and that mistake upon the part of the physician having charge of the ship’s medicines was not a defense.

Van Wyck v. Allen, 69 N. Y., 62, and Thomas v. Winchester, 6 id., 397, are the authorities cited in support of that propo.sition.

The first case was an action upon contract for breach of an implied warranty. The main question there decided related to the rule of damages. The case has no application to an action for a wrong which has its foundation in the violation of a duty entirely outside of and beyond the stipulations of the contract Thomas v. Winchester was decided upon the negligence of the defendant The trial court charged the jury that “if the defendant was guilty ■of negligence in putting up and vending the extracts in question the plaintiff was entitled to recover,” and this court held that the liability of the defendant did not arise out of any contract or direct privity between him and the plaintiff, but out of the duty imposed upon him to avoid acts in their nature dangerous to the lives of others. And in carelessly labelling a deadly poison as a harmless medicine and sending it so labelled into" the market the court found the negligence upon which a recovery was sustained.

But whether the druggist who made the immediate sale of the poison to the plaintiff' would have been liable to her, or whether he was justified in selling the article upon the faith of the ■defendant’s label, was not in that case decided. That precise -question was decided, however, in Brown v. Marshall, 47 Mich., 576, and in Beckwith v. Oatman, 43 Hun, 265; 5 St. Rep., 445.

In both of these cases a recovery was permitted by the trial -courts upon proof of the fact of a sále of poison to a person who called for a harmless drug, and the question of negligence was withdrawn from the consideration of the jury over the defendant’s objection and exception.

In both cases the exception was sustained, the appellate courts holding that a failure on the part of the druggist or his clerk to exercise due care and skill must be proved.

We quote with approval from the opinion of Judge Cooley in the Michigan case: “ The question is whether the delivery at a drug store of a deleterious drug to one who calls for one that is harmless and a damage resulting therefrom of themselves give a right of action, even though there may have been no intentional wrong and the jury may believe there is no negligence. That such an error might occur without fault on the part of the druggist or his clerk is readily supposable., He might have bought his drugs from a reputable dealer in whose warehouse they have been tampered with for the purpose of mischief. It is easy to suggest accidents after they come to his own possession or wrongs by others of which he would be ignorant and against which a high degree of care would not give perfect protection. But how misfortune occurs is unimportant if under all circumstances the fact of occurrence is attributable to him as a legal fault. The-case is one in which a high degree of care may justly be required. * . * * It is proper and reasonable that the care required shall be proportionate to the danger involved. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when a mistake has occurred.”

No case is cited which conflicts with the rule thus stated and I think no authority to the contrary exists in this state. The rule-of liability applicable to a druggist in cases of this character is-the same as that which governs the liability of professional persons whose work requires special knowledge or skill, and a person, is not legally responsible for any unintentional consequential injury resulting from a lawful act when the failure to exercise due- and proper care cannot be imputed to him, and the burden of proving such lack of care when the act is lawful is upon the-plaintiff. Brown v. Marshall, supra; Thomas v. Winchester, supra; Beckwith v. Oatman, supra; Losee v. Buchanan, 51 N. Y., 476-488; Carpenter v. Blake, 75 id., 12; Morris v. Platt, 32 Conn., 75; Simonds v. Henry, 39 Me., 155; Fleet v. Hollenkemp, 13 B. Mon. (Ky.), 219.

Negligence of the defendant, therefore, being the foundation of' the plaintiff’s cause of action, we proceed to the consideration of the facts of the case.

The defendant was a common carrier of passengers, and we-need not discuss whether the common law imposed upon it any duty to treat those who were sick, nor whether it made it responsible for their proper care or management.

The duty that it assumed in this respect in this case was imposed upon it by the statute of Great Britain, under the laws of which it was incorporated.

That statute, known and cited as “ The Passengers’ Act of 1855,”" and entitled “ An act to amend the law relating to the carriage of passengers by sea,” passed August 14, 1855, enacts:

1. (Sec. 41.) That “Every passenger ship shall * * * carry a duly qualified medical practitioner, who shall be-rated on. the ship’s articles.”

2. (Sec. 43.) “ The owner or charterer of every passenger ship shall provide tor the use of the passengers a supply of medicine * * * proper and necessary for diseases * * * incident to sea voyages and for the medical treatment of the passengers during the voyage; and such medicines * * * shall, in the judgment of the emigration officer at the port of clearance, be good in quality and sufficient in quantity for the probable exigencies of the intended voyage, and shall be properly packed and placed under the charge of the medical practitioner, * "" * to be used at his discretion.”

3. (Sec. 44) “ No passenger ship * * * shall clear, out. or proceed to sea until some medical practitioner, to be appointed by the emigration officer at the .port of clearance, shall have inspected such medicines * * * as are required to be supplied by the last section, * •* * and shall have certified to the said emigration officer that the said ship contains a sufficient supply, etc.”

And by § 42 it was further provided that “ no medical practitioner should be considered to be duly qualified for the purposes of this act unless authorized by law to practice in some part of her majesty’s dominions as a physician, surgeon or apothecary, nor unless his name shall have been notified to the emigration officer at the port of clearance and shall not be objected to by him.”

It was alleged and proved that the defendant for the purpose • of advertising its line issued a prospectus which contained the following statement: “An experienced surgeon is carried' on board every ship. * * * All medicines, medical comforts and attendance required are supplied gratis.”

This prospectus it will be observed -went no further in its representation than the requirements of the statute. A medical practitioner duly qualified as required by the provisions of the act quoted may fairly be assumed to be referred to, and the fact that no charge was made for medicines neither added to nor qualified the duty resting upon the defendant under the law. The defendant’s liability must be sought for in its failure to perform the duty imposed upon it by the statute. Beyond that it had assumed none and had none to perform, and consequently violated none owing to its passengers. If the things which the statute required it to do were performed with due and proper care its duty to the passengers was discharged.

The obligations imposed by the statute were two-fold; First, to employ a duly qualified physician, and second, to provide a supply of medicines properly packed and labelled and suitable and necessary for disease incident to sea voyages. When these two things had been done and the certificate of their performance given by the government officers the ship was permitted to proceed upon its voyage, and the medicines were from that time under the charge of the physician to be used at his discretion. No negligence is claimed to exist in the performance of either of these duties. No evidence was offered that the supply of medicine was insufficient in quantity or quality, and the respondent’s counsel concedes that the competency of the physician was established, and the court charged the jury that for his negligence the defendant was not responsible.

The plaintiff, however, gave evidence by a passenger that he applied to the physician for medicine on the same evening that the plaintiff did, and that he found the “ Surgery,” where the medicines were kept ,in disorder and confusion. That some of the bottles were in the racks and others ■ on the racks, and looked as if they were out of place, and it was by the trial court left to the jury to determine whether the “ Surgery ” was in such a condition of confusion as to show that the company did not use ordinary care in providing medicines and properly labelling them, or left them open so that a mistake was very liable to occur.

As already stated, there was no evidence of a failure to provide an adequate and proper quantity of medicine of good quality, and none that they were not properly packed and labelled, or that the “ Surgery ” was not properly fitted up, or that it was an improper place for the purposes designated. All the evidence on that subject came from the defendant, and was to the effect that all the statute required was done, and that the government officers certified to its performance. The negligence charged, therefore, rests in the confusion in the “ Surgery ” and the disarrangement of the bottles. It was affirmatively shown, by defendant that between Glasgow and Greenock, during, the first two hours of the voyage, the medicines were inspected by the medical examiner of the-port of Glasgow, with the assistance of the physician, and that they were then properly packed and labelled and placed in the racks. The statute required that they shall then be placed under the charge of the physician, and be used at his discretion.

The medical examiner of the port left. the vessel about six o'clock on the evening of the first day of the voyage, and the plaintiff applied for medicine about eight o’clock in the evening of the following day, and the question presented, therefore, is whether testimony of confusion in the surgery, or disorder in the arrangement of the medicines, occurring after the vessel put to sea¡ and after the medicines were placed in charge of the physician, was evidence of such neglect of duty on the part of the defendant as to render it liable for such injuries as the plaintiff sustained. We think it was not. Any other construction must assume that the ship owner is bound to exercise some supervision over the physician in his treatment of the passengers and his árrangement of the medicine. But no officer on the ship is competent to do that. The very object of the statute is that a skilled professional man shall be on board the ship to attend the passengers in case of sea sickness and dispense the drugs and medicines. Can we hold that a sailor shall have supervision over the doctor, or that an unskilled man with no ability to tell one drug from another shall have authority over the skilled, experienced physician ? To so hold would nullify the law and put inexperience over experience, and ignorance where the law requires knowledge and professional skill.

When the ship owner has employed a competent physician, duly qualified as required by the law, and has placed in his charge a supply of medicine sufficient in quantity and quality for the purposes required, which meet the approval of the government officials, and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers. That from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the ship owner, and that no different rule is applicable to such mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment

The work which the physician does after the vessel starts on the voyage is his and not the ship owner’s.

It is optional entirely with the passengers whether or not they employ the physician. They may use his medicines or not as they choose. They may place themselves under his care or go without attendance as they prefer, and they determine themselves how far and to what extent they will submit to his control and treatment. The captain of the ship cannot interfere. The physician is not the ship owner’s servant doing his work and subject to his direction. In his department, in the care and attendance of the sick passengers, he is independent of all superior authority except that of his patient, and the captain of the ship has no power to interfere except at the passenger’s request. These views find support in Laubheim v. De K. N. S. Co., 107 N. Y., 229; 11 St. Rep., 469; and in O'Brien v. Cunard S. S. Co., 28 N. E. Rep. (Mass.), 266.

The first case arose before congress had legislated upon the subject, but it was said in the opinion that “if by law or by .choice the defendant was bound to provide a surgeon for its ship its duty to the passengers was to select a reasonably competent man for that office, and it is liable only for a neglect of that duty.” The Massachusetts case was decided upon a statute of the United States similar to that of Great Britain, and it was there said that the ship owners “ do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner and supply him with all necessary and proper instruments, medicine and medical comforts and have him in readiness for such passengers as choose to employ him.”

We think that is the extent of the requirement of the statute in this case, and if there was any common law liability resting upon the defendant to make provision for the care and attendance. of its passengers when sick, it was no greater than that imposed by the statute.

These views lead to the conclusion that the evidence failed" to show the neglect of any duty which the defendant owed to the plaintiff, and the motion to dismiss the complaint should have been granted.

The judgment must be reversed.

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

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Walter Myers, Resp’t, v. Robert J. Dean, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Brokers—Employment of—Consideration.
    Plaintiff, a real estate agent, learning that certain premises belonging to the city were to be leased by the comptroller, called upon him, and obtained a proposed rental, and then told defendant he had the property to rent, who called upon the comptroller, and they two agreed that defendant was to make an upset bid of $31,000, the memorandum stating that defendant should “ pay all brokerage.” The lease was sold at public auction to defendant at hi's upset price. Plaintiff testified that he told defendant that the person taking the lease would have to pay the brokerage, as the city never paid any, and that it would be one per cent., and that defendant agreed to pay it. Defendant claimed that plaintiff performed no services for him, and that he had been in negotiation with the comptroller before plaintiff called on him. Upon the lequest of plaintiff’s counsel the court charged the jury that if they believed that “ Mr. Dean stated to Mr. Myers before the lease was obtained that if he obtained the lease on his offer he would pay the commission,” the plaintiff was entitled to recover. Held, error.
    2. Same.
    Upon the evidence given, the conclusion was permitted that the plaintiff was not only not employed by the defendant, but that his agency -was not in any sense a procuring cause of the negotiation for the lease, or in obtaining it by the defendant'; and if so found by the jury the consequence may have been that the promise to pay was without consideration and ineffectual to charge the defendant, and as the essential elements omitted in tile proposition were not supplied by any instructions to the jury in any part of the charge as made, the exception thereto was well taken.
    Appeal .from judgment entered on order of the general term of the court of common pleas of the city of New York, affirming judgment entered on a verdict in favor of the plaintiff.

      L. M Warren, for app’lt; P. Q. Eclcerson, for resp’t.

       Reversing 33 St. Rep., 313.

   Bradley, J.

The action was brought to recover for services alleged to have been performed by the plaintiff as broker for and at the request of the defendant in procuring for him .a lease of certain premises in the city of New York owned by the city. The lease was made of date January 11, 1889, for the term of ten years at the annual rent of $31,000, except that the rent for the portion of the term preceding the first of May of that year was at the rate of $20,000 per annum. The plaintiff claimed and recovered as commissions one per cent, of the gross rental sum for the entire term, which recovery with interest included in it was $3,216.49. The testimony given by the parties was in conflict, and the trial court charged the jury that if they believed the defendant’s version of the affair the latter was entitled to a verdict.

It is not claimed that the plaintiff procured the execution of the lease to the defendant. He could not do that because that was dependent upon the defendant being the highest bidder at the auction sale of the term. The power to lease the property was in the board of commissioners of the sinking fund for the highest rental ‘at public auction or by sealed bids after public advertisement, etc. Laws 1882, chap. 410, § 170. Notices were posted on the premises that they were to be rented and in the notices reference was made to the city comptroller for information on the subject. His purpose in this instance, in accordance with his customary method, was to obtain a satisfactory offer termed an upset bid before advertising the term for sale. The plaintiff learning that the premises were tó be rented called upon the comptroller, obtained from him a proposed rental and a diagram of the property .and after having called attention of some others to it and obtained offers from them which were not satisfactory to the comptroller he called upon the defendant, and the plaintiff’s evidence was that he told the defendant he had the property to rent, that he could offer it for $35,000 per year and showed him the diagram; that the defendant said he would go and see the comptroller, and did so, and that afterwards when called upon by the plaintiff said he had seen him, and arranged with the plaintiff to go with him the next day and see that officer; that they then went there and the comptroller consented to accept the defendant’s offer to bid an annual rental of $31,000, and caused a memorandum in the form of a communication to him to be subscribed by the plaintiff to the effect that he made such offer except as to the period preceding the 1st of May following, for which the rate per annum was $20,000, and that he would perform in the event he should become the purchaser pursuant to such offer, and for the security of which lie deposited a sum of money. In that memorandum was inserted a provision that the defendant should “pay all brokerage.” The lease of the premises was thereupon advertised and afterwards sold at public auction to the defendant upon his offer as no higher bid was made and the lease was executed accordingly.

It is upon the alleged fact that the lease was procured by the defendant through the services performed for him and in that behalf by the plaintiff that the latter claimed he was entitled to recover the commission. For the support of that claim the employment of the plaintiff was essential. And he testified that at his interview with the defendant after the latter had seen the comptroller on the subject, and before they were together at his office, he told the defendant that the person who should take the lease would have to pay the brokerage, as the city never paid any, that he also informed him that the brokerage was one per cent on gross amount and the defendant said if he got it at his bid he would pay the brokerage; that afterwards when they were at the comptroller’s office, at the time the offer of $31,000 was made and accepted as a bid, the defendant there said he would pay the plaintiff the brokerage and the latter said it would be one per cent, and requested the comptroller to put it in the memorandum of the offer subscribed by the defendant, and that the provision on the subject before mentioned was inserted in it, and that afterwards when called upon by plaintiff on the subject of his claim the defendant told him to make out his bill and he would send him the amount of the claim as soon as he got the lease. He afterwards refused to pay it. This is substantially the evidence upon which the plaintiff relied to support his alleged cause of action.

The defendant took exception to the denial of his motion to dismiss the complaint on the grounds that the negotiation with the comptroller was necessarily ineffectual to produce any lease or-any contract for it, as it could be procured only through a purchase made at public auction by the highest bidder, and that it did not appear that any services of the plaintiff were the procuring cause of the lease to the plaintiff. It is, therefore, urged that there was no consideration to support the promise which the evidence of the plaintiff tended to prove the defendant made to pay him commission or brokerage. The plaintiff was advised that the city would pay none, and it appears by the evidence of the comptroller that the plaintiff was neither employed or invited by him to produce offers, but, as he expressed it, the plaintiff invited himself; that he distinctly told him “ that the city never dealt with, brokers; that we had nothing to do with brokers * * * that it would have to be sold at auction,” but that he would nevertheless consider any offers he should present. There was, then, no claim founded upon any employment in behalf of the city. And in respect to the provision on the subject in the memorandum the comptroller testified that he wanted it thoroughly understood that the city had nothing to do with the brokerage or with brokers, and that if there was any broker's fee it must come from the other parties to the transaction, and, therefore, he made the insertion in the manner he did in the memorandum so there would be no misunderstanding about it. The plaintiff’s claim must rest solely upon his employment by the defendant or upon the performance of services for him at his request. When the plaintiff, as he testified, first appeared to the defendant he assumed to have the premises to rent or to negotiate for a demise of them to a lessee whom he should procure to take them. His relation so assumed was apparently that of representative of the owner seeking a lessee in its behalf, and no employment of him by the defendant could be deemed to have resulted’ from such first interview between them. Intermediate that and the second time the plaintiff says he called upon the defendant, the latter had seen the comptroller on the subject. Then followed the interview between the parties in which the subject of ‘brokerage was first mentioned. Then, as represented by the plaintiff’s evidence, he informed the defendant that the city paid no commissions, suggested that his were one per cent and that the defendant promised to pay, and that the rate and such promise were repeated the next day at the comptroller’s office.

The facts as represented by the evidence of the plaintiff must, in the consideration of such motion, be deemed established. And the question arising in that respect is whether they were sufficient to warrant the recovery. While it is true that the comptroller had no power to lease the property, he was a member of the commissioners of the sinking fund, and as such received offers preliminarily to advertising the public auction, so as to have assurance of a bid of a sum for which the commissioners would be willing to lease the property if they failed to get anyhigher offer at the sale. This it seems was a precautionary method of proceeding to avoid the futility which might otherwise result from advertising for and- attempting to sell at public auction. It may be assumed that the comptroller in such cases seeks to get as high an offer for the upset bid as he can to submit to the commissioners, and that the acceptance of it as to the amount for such purpose is or may be the result of negotiation, and that the person whose offer js accepted has the opportunity to obtain the lease subject only to the contingency'of a bid of higher price than he has proposed to give. In that view there may be some value or benefit to him in judicious negotiátion in his behalf in the outset. Although it may be difficult to see in the evidence that the plaintiff did very much by way of accomplishing the result that was reached in the negotiation with the comptroller, the conclusion was permitted that he did bring the defendant and that officer together, and that while the negotiation was pending the defendant treated the plaintiff as in his service, and promised to pay him the amount claimed by way of brokerage or commissions in' the event the transaction resulted in a lease to him of the property. In that view the defendant’s promise was not without consideration for its support. And it follows that the motion to dismiss was properly denied.

Upon the request of the plaintiff’s counsel the court charged the jury that if they believed that “ Mr. Dean stated to Mr. Myers before the lease was obtained that if he obtained the lease on his offer he would pay the commission,” the plaintiff was entitled to recover. And the defendant excepted. On the assumption that the plaintiff was employed by tne defendant, or performed any services in the matter for him at his request, the proposition so charged was properly submitted to the jury. But without such employment or the performance by the plaintiff of some service at the request, express or implied, of the defendant, such promise of the latter would have no consideration for its support, and no liability to pay would be created by it. Ehle v. Judson 24 Wend., 97.

Whether any services were performed by the plaintiff for the defendant pursuant to employment by the latter or at his request, was a question of fact for the jury upon conflicting evidence, ami could not be assumed as matter of law. If the jury adopted as true in that respect the evidence of the defendant, they may have found that the plaintiff was neither employed by him nor performed any service or did anything in the matter at his request. It is true that a promise before the lease was obtained to pay him may have been some evidence that any sérvices thereafter performed were pursuant to request or-understanding that he should be remunerated by such payment But the evidence of the defendant was to the effect that the plaintiff performed no services for him at any time in reference to the lease ; that the defendant was not by any act. of the plaintiff brought into communication with the comptroller on the subject, but that prior to any interview of the plaintiff with the defendant the latter had been in negotiation with that officer and had made an engagement to meet him the next day at the time" he did go to his office, where the plaintiff also appeared without any solicitation of the defendant. The conclusion upon this evidence was permitted that the plaintiff was not only not employed by the defendant, but that his agency was not in any sense a procuring cause of the negotiation for the lease or in obtaining it by the defendant; and if so found by the jury, the consequence may have been that the promise .to pay was without consideration and ineffectual to charge the' defendant. McClave v. Paine, 49 N. Y., 561; Sussdorff v. Schmidt, 55 id., 319; Sibbald v. Bethlehem Iron Co., 83 id., 378. If, however, the proposition in question may be treated as qualified or broadened in its import by other portions of the charge, reference may be made to them in its support Hickenbottom v. D., L. & W. R. R. Co., 122 N. Y., 91; 33 St. Rep., 312. But it is not seen that the essential elements omitted in such proposition were necessarily supplied by any instructions to the jury in any part of the charge as made, and for that reason the exception was well taken.

And the judgment should be reversed and a new trial granted, costs to abide the event.

All concur, except Haight, J., not sitting.


author: Parker, J.

text:
    John C. Freeman, Rec’r, App’lt, v. Hugh J. Grant, Sheriff, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Conversion.
    Prior to the execution of an assignment for creditors the sheriff received two executions against the assignors under which he subsequently levied, and refused to deliver the property on demand of the assignee. A surplus was realized upon the sheriff’s sale, but other executions coming into the sheriff’s hands subsequent to the assignment and the assignee desiring to release the balance of the stock so that he might sell it himself, an arrangement was entered into by which the latter paid a sum sufficient to make up the amount of such executions to the sheriff, who then released his levy. Held, that these facts did not constitute a conversion of the surplus by the sheriff.
    2. Same—Pleading—Amendment.
    The court refused to allow the complaint to be amended by inserting the word “money” so as to conform it to the facts proved. Held, no error; as that would have permitted a recovery on an entirely different cause of action.
    3. Same.
    After the court had decided to dismiss the complaint, it refused to allow defendant to withdraw a juror so as to permit a motion to be made at special term to amend the complaint. Held,_ that the disposition of such an application rests so largely in the discretion of the trial court that the manner of its exercise after affirmance will not be reviewed here.
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment entered on the dismissal of the complaint at circuit.

      John B. Greene, for app’lt; Wales F. Severance, for resp’t.

       Affirming 30 St. Rep., 143.

   Parker, J.

The complaint alleged the making of a general assignment for the benefit of creditors by the firm of Kaughran & Barrett to Miles O’Brien; an acceptance of the trust and the taking possession of the assigned property by the assignee; the plaintiff’s subsequent appointment and qualification as receiver of the estate of Kaughran & Barrett, and the delivery of possession thereof by Miles O’Brien to him pursuant to the order of the court.

It further averred that during the time said assigned property was in the possession of O’Brien, the assignee, the defendant in this action, as sheriff of the city and county of New York, wrongfully and unlawfully took from the possession of said O'Brien" and carried away large quantities of said goods and property so held and owned by said O’Brien as such assignee, of the value of $19,-385.12, against the protest of said assignee, and converted the said property to his own use, to the damage of the said assigned estate and the plaintiff in the above amount

The answer put in issue the allegations of the complaint, and by appropriate averments-justified the acts and things done by the defendant as being in the line of his duty as sheriff.

The evidence adduced on the trial failed to support the allegations of the complaint respecting the wrongful taking of any goods from the possession of the assignee by the defendant, and its admission was objected to by defendant’s counsel on the ground that it was not material or relevant to the issue. The objection was not sustained, and from the testimony resulting it appears that prior to the exechtion of the assignment the defendant as sheriff levied upon and took possession of certain goods belonging to Kaughran & Barrett under two executions aggregating about forty thousand dollars, and that a subsequent sale of part of the goods under such process resulted in a surplus of $10,804.44. While the sheriff was in possession of the property levied on, and subsequent to the assignment and the assignee’s acceptance of the trust, the defendant received other executions aggregating about nineteen thousand dollars, and he asserted to the assignee the right to sell a sufficient quantity of the goods remaining in the store to secure the balance required to satisfy such executions. Without conceding the sheriff’s position to be correct, the assignee believing, as it is alleged, that the assigned estate would be benefited by a sale conducted by him rather than the sheriff, suggested a plan which he intended should permit him to take possession of the goods and sell them and at the same time preserve for the benefit of the assigned estate such sum of about nineteen thousand dollars provided the possession of the sheriff should prove to be without support in law. The assignee’s proposals ripened into an arrangement by which the sheriff was permitted to retain the surplus, which exceeded ten thousand dollars, and in addition the assignee paid over to him about nine thousand dollars, making total moneys then in the hands of the sheriff equal to the amount due on the executions which he had received sub-' sequent to the assignment but under which he had levied on goods forming a part of the assigned estate.

The assignee protested against the defendant’s claim of right to sell the goods upon which he had levied, and insisted in doing -that which he did he did not intend to relinquish the claim that the estate was entitled to the possession of the goods then in the store; that the money was intended by him as a substitute for the goods upon whitih the sheriff had levied, and was a deposit made for the purpose of procuring a release from the levy. Immediately thereafter the sheriff released the goods from the levy .-¡and the assignee took possession, since which time the defendant has in no way interfered with any portion of the assigned estate. It is apparent, therefore, that the allegations of conversion of goods had no support in evidence, for those which the defendant disposed of and caused to be removed were rightfully sold under executions issued and levied before the assignment, and -the legality of his action in that respect is not controverted.

But the plaintiff insists that there was a conversion of the surplus by the defendant; that his complaint was broad enough to embrace it, and, therefore, the dismissal of his complaint was error.

"While the surplus came properly and lawfully into the possession of the sheriff pursuant to the sale under executions rightfully levied, still after their satisfaction he had no right to retain it,' as it formed a part of the assigned estate, and had the assignee demanded it, its continued retention by the defendant would have been wrongful, and would have supported an action of conversion. But the arrangement between the assignee and the sheriff operated to do away with that cause of action, and to substitute in its stead one for money had and received. This conclusion is required by the testimony of the counsel for the assignee, who conducted for him the negotiations with the sheriff which resulted in his retention of the surplus, and a further payment to him of about nine thousand dollars by the assignee to induce a release of the levy on. a portion of the assigned estate. He testified: “ My recollection is not very distinct about what did occur. ' All I know was there were certain attachments or executions that had been issued, and' that the sheriff was in possession under those claiming adversely to the assignee ; and the assignee under my advice ascertained the amount of these liens or claims against the property and after ascertaining those we went to the sheriff’s-office with a view of seeing if some arrangement could be made by which he would allow the assignee to sell and then have these liens paid out of the proceeds. And as the result of that, without desiring in any way to determine the question of the validity of the liens, we entered into an arrangement by which a stipulation was drawn; the fund or moneys were to be taken and put in the place of the property. * * * My recollection is that the sheriff said : Here is so much money, whether he took it in the shape of a check or whether there was money passed I can’t state, but he said, I have got that amount of money belonging to the assignee. The assignee went in and made a demand for it, and he said, I have got that surplus over and above these judgments; the Claflin and Kaughran judgments. The sheriff then said he would; he said : I will pay that over to you. Then we went into the arrangement of what we were going to do by reason of the levies he had made on the Broadway store and he stated that unless some arrangement was made by. the assignee to release those levies there by a deposit of money in lieu of the property, that he was going to sell out the property of the Broadway store. * *. * My recollection about it is, we went there and asserted that the sheriff hadn’t any right to keep the money, and he said on his part that he had this money in his'hands, and he said: I have got a levy upon the Broadway store. It may be that the proceeds there will be sufficient to satisfy these attachments and ' executions; if so, the surplus will belong to the assignee. At that time the sheriff was in possession, and the assignee was of opinion that it was-for the interest of the estate to get it out of the hands of the sheriff, and we tried to get the sheriff to release the property, and he wouldn’t do it without getting the money, .and we entered into this arrangement. * * * I will not say as a matter of fact that he asserted a right against the surplus of this money that he had in his hands; he never positively refused in the sense of saying he would not pay it over. He said: This money is here, and if I make the executions good out of the property, I have got to recognize your demand.

“ Q. That is, he said if you took that money he would have to take more property ? A. Yes.
“ Q. And so far as simply the question of holding that money or getting more property, you told him to hold the money and not take more property ? A. I told him we would enter into this arrangement.”

It is quite apparent from this evidence that the sheriff was in possession of the goods belonging to the assigned estate under certain executions, and threatening to make the amount due thereon out of such property; that to prevent a sale by him and secure for the assignee immediate and undisputed possession the counsel for the assignee proposed the arrangement which was finally entered into. In order to carry it out the assignee borrowed the sum of $9,000 and paid it over to-the sheriff, who was further permitted to retain the surplus to make up the balance which he required as a condition precedent to a surrender of possession of the goods on which he had levied. Had the surplus not been taken into account in making up the $19,000, the assignee would have been obliged to raise and pay over an equal amount in order to accomplish the purpose which he had in view. It seems to be clear therefore that whatever may have been the rights of the assignee against the sheriff as to the surplus prior to the agreement, that it was the intention of the parties and the legal effect of their action to treat the surplus and the $9,000 borrowed by the assignee as paid over to the sheriff to effect a common • purpose, to. wit, a surrender of possession to the assignee of goods out of which the sheriff threatened to make the amount due on certain executions. The sheriff had no right to demand this money nor to retain possession of the goods under the levy made after the assignment, and the assignee by an appropriate action might have obtained an adjudication setting aside the levy and requiring the sheriff to surrender possession of the goods to him, but believing the course adopted to be for the best interest of the estate, he paid the money under protest and in order to obtain possession. The payment thus made was not voluntary, but compulsory, and the law implies a promise to re-pay; the remedy being an action as for money had and received; Clinton v. Strong, 9 Johns., 370; Harmony v. Bingham, 12 N. Y., 99; Briggs v. Boyd, 56 id., 289, 293; Bowns v. May, 120 id. 357, 360; 31 St. Rep., 700.

The cause of action alleged in the complaint, however, was not • for the recovery of money involuntarily paid to the defendant, but for the wrongful taking by the defendant from the assignee O’Brien of “ dry goods, fixtures, attachments and personal property,” and the testimony presented did not tend to establish it. As the evidence adduced, pointing to a different cause of action, was-seasonably objected to, it was not error for the court to dismiss the complaint. Southwick v. First National Bank, 84 N. Y., 420.

At the close of the plaintiff’s case, his counsel asked the court to so amend the complaint as to conform to the facts proved. The request was denied. As appears from the observations already made, the effect of granting the motion would have permitted a recovery upon an entirely different cause of action from that set forth in the complaint, and that may not ordinarily be done on the trial against the objection of the other party. Barnes v. Quigley, 59 N. Y., 265; McMichael v. Kilmer, 76 id., 36; Arnold v. Angell, 62 id., 508.

Subsequently, and after the court had decided to dismiss the complaint, defendant’s counsel asked to be permitted to withdraw a juror so as to permit a motion to be made at special term to amend the complaint This request was also denied. The disposition of such an application rests so largely in the discretion of a trial court that the manner of its exercise, after an affirmance by the general term, will not be reviewed here.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Potter, J., not voting.


author: Brown, J.

text:
    Herman Berry, Resp’t, v. The American Central Ins. Co. of St. Louis, Mo., App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    3. Insurance (fire)—Settlement by adjuster—Fraud.
    A policy of insurance provided that it was to be void unless the interest of the assured was the entire, unconditional and sole ownership, or if the building stood on ground not owned in fee simple by the assured; that no notice to, consent or agreement by any agent should bind the company unless the same was indorsed in writing upon the policy, and signed by such agent; also, that no agent had power to waive any condition of the policy. The legal title was in plaintiff’s son, who had made a verbal agreement with his father that the latter was to occupy the property during life, and to keep it insured, in repair, and pay taxes. This was known to the insuring agent, but a loss having occurred, defendant’s adjuster represented to the plaintiff that the policy was void by reason of the breach of conditions as to title, and persuaded him to accept $400 in settlement, and to receive.a draft for that amount and cancel his policy. Thereafter, plaintiff offered to return the draft and demanded full payment of his loss. In an action thereon, Held, that the knowledge of the agent was imputable to the company, and the statement by the adjuster that the policy was void for the reasons mentioned was fraudulent in law and deceitful, and plaintiff was entitled to recover.

      2. Same—Tender.
    Plaintiff offered in his complaint to deliver up the draft, and upon the trial produced it in court, and by the decree it was to be deposited with the clerk and delivered to the defendant or its agent. Held, a sufficient tender and surrender.
    3. Same—Insurable interest.
    Under the contract with his son plaintiff had agreed, among other things, to. keep the property insured, and this agreement gave Mm a right to insure the buildings in his own name to their full value.

      4. Same—Waiver oe conditions in policy.
    Plaintiff informed the agent who issued the policy that his son, who-lived in Chicago, had bought the property for him, and he was to have it. as a home as long as he lived, and that he was to insure, etc. Reid, that, this fairly gave notice to the agent that he was not the owner, and that for its use he had agreed to insure it, and justified the finding that the conditions of the policy as to title were waived.
    5. Same.
    The agents who issued the policy were general agents having authority to make contracts without reference to the home office, and their power to- ■ waive conditions in the policy was co-existent with that of the company itself.
    Appeal from a, judgment of the general term of the fourth, judicial department affirming a judgment of the special term.
    Action to set aside a compromise settlement and a cancellation of a policy of insurance against fire and a release thereof and to-recover upon the policy.
    The policy insured the plaintiff to the amount of $875 on buildings and $225 on personal property. Defendant was to make-good all loss or damage, etc., not exceeding the above named amounts “ nor the interest of the assured in the property,” etc. The policy provided that it should be void if without notice to this company and permission therefor in writing endorsed thereon the interest of the assured be other than the entire, unconditional and sole ownership; or if the property insured be a building standing on ground not owned by the assured in fee simple.”
    It further provided that “ no agent has any power to waive any condition of this policy.” “No notice to and no consent of or agreement by any agent of this company shall be binding on this-company until such notice, consent or agreement as the case may be is clearly expressed and endorsed in writing hereon and signed by such agent.
    The legal title to the real property was in the plaintiff’s son,, and the plaintiff was in possession under a verbal agreement,, whereby he was to occupy the property during his life, and in. consideration thereof was to keep it insured, in repair, and pay the taxes thereon.
    There was a total loss by fire of the buildings within the lifetime of the policy and a loss on personal property of $128.20.
    Subsequent to the service of proofs of loss, plaintiff, upon the-representations of defendant’s adjuster that the policy was void by reason of the breach of the conditions as to title, agreed to accept $400 in settlement of his claims, and thereupon received from such adjuster a draft, signed by the general agent, upon the defendant for such sum, payable to his order and attached to a blank ieceipt, and which provided “ that it would not be paid if detached from the receipt therein referred to.”
    Upon receiving this draft plaintiff executed a paper cancelling said policy and delivered it to the agent.
    Thereafter, being advised that his policy was not void, he offered by letter to return the draft and demanded full payment, of Ms loss, which being refused he brought the present action-

      Further material facts appear in the opinion.

      I. N. Ames, for app’lt; Hannibal Smith, for resp’t.

       Affirming 30 St. Rep., 53.

   Brown, J.

There was in this case no misrepresentation as to ;any fact which was material to the plaintiff’s right to recover upon the policy. Indeed there is no evidence but that the adjuster personally acted in entire good faith, and having no knowledge of the information received' by the agents as to the title when the insurance was effected doubtless believed that the policy was void, but any knowledge or information which any of the defendant’s agents received during the transaction with the plaintiff is by law imputed to it, and assuming that the plaintiff at the time of effect- ' ing the insurance stated correctly the facts as to the title, the statements made by the adjuster, that the policy was void by reason of its conditions and the fact that the plaintiff’s son was the owner, were, as emanating from the defendant, fraudulent in law and •deceitful.

The court found in substance that the settlement and the cancellation of the policy was procured by the statement made to the plaintiff that the policy was void, and that, relying upon such, plaintiff was led into a mistake as to his legal rights thereunder.

The evidence on the subject was that the adjuster read to the plaintiff the clause in the policy declaring that it should be void if the interest of the assured was other than thát of sole and unconditional ownership, and told him that he was well acquainted with the law of insurance, and, because the property belonged to his son, plaintiff had no right to insure it in his own name, and the policy was for that reason void and nothing could be collected upon it.

The plaintiff was a man of little business experience, although-he had education enough to understand the transaction and read the papers which he signed, and he made the settlement voluntarily, without any coercion upon him, but relied upon the representation as to the law governing his case which the defendant falsely made to him.

There is no question of course but that a court of equity cannot grant relief solely upon a mistake of law. But there was here more than a mistake. There was a surrender of legal rights intentionally induced and procured by a false representation as to the law governing the case. The defendant must be presumed to have known that it was liable for the whole loss, and by falsely representing that under the law. applicable to the case the policy was void when in fact it was valid, it induced the plaintiff to rely upon the superior knowledge that it possessed upon the subject and to surrender to it his claim.

This clearly constituted fraud, and there would be manifest injustice in upholding a settlement under such circumstances. We think the case falls within well settled rules of equitable jurisdiction, and that the decision of the special term was right. 2 Pom. Eq. Juris., §§ 847, 848, 849; Willard’s Equity, 68, 69; Busch v. Busch, 12 Dalv, 476; Wheeler v. Smith, 9 How., U. S., 55; Cooke v. Nathan, 16 Barb., 342; Boyd v. De La Montagnie, 73 N. Y., 498; Jordan v. Stevens, 51 Me., 78; Ins. Co. v. Bowes, 42 Mich., 19; Freeman v. Curtis, 51 Me., 140.

The appellant does not, however, question the power of the-court to grant relief in such a case, and the only point seriously urged upon us in this connection is that the plaintiff made no-proper or sufficient tender of the draft to the defendant before bringing suit The plaintiff offered in his complaint to deliver-up the draft, and upon the trial produced it in court, and by the decree it was to be deposited with the clerk and delivered to the. defendant or its agent

It was unnecessary for the plaintiff to do more than he did. In fact he had received nothing from the defendant. Between parties the note of one of them is not property, but a mere promise to pay which is avoided by rescission of the contract The draft which plaintiff held was drawn upon defendant by its own agent. It was of no greater force or value than the defendant’s note would have been, and in such a case a tender and surrender upon trial was all that was essential to the plaintiff’s right to the relief sought Thurston v. Blanchard, 22 Pick., 18; Nichols v. Michael, 23 N. Y., 264; Gould v. Cayuga C. N. Bank, 86 id., 75-82.

But in an equity action to rescind a settlement the rule invoked by defendant has no application. If the plaintiff had 'failed on the trial the settlement would have stood and he would have-been entitled to retain and use the draft. And it is sufficient in such an action for the plaintiff to offer in his complaint to restore-what he has received, and the rights of the parties are then regulated and protected in the judgment. Allerton v. Allerton, 50 N. Y., 670; Vail v. Reynolds, 118 id., 297; 28 St. Rep., 707.

We come, therefore to the question whether a recovery upon the policy "can be upheld.

The first contention of the defendant is that the plaintiff had no insurable interest in the buildings.

The rule is well settled that it is not necessary to support an insurance that the assured should have an interest legal or equitable in the property destroyed. It is enough if he is so situated with reference to it that he would be liable to loss if it is destroyed or injured by the peril insured against.

In brief, a person may insure against his liability with reference to a certain property as well as his interest therein. Insurance Co. v. Chase, 5 Wallace, 509-513; Nat. Filtering Oil Co. v. Citizens' Ins. Co., 106 N. Y., 535—541; 11 St. Rep., 4; 3 Kent’s Com., 6th ed., 276.

The test of insurable interest is whether an injury to the property or its destruction by the peril insured against would involve the assured in pecuniary loss. Wood on Fire Ins., § 282. Thus, a common carrier may insure goods intrusted to him to their full value without regard to his liability to the owner. Crowley v. Cohen, 3 B. & Ad., 478; London & N. W. R'wy Co. v. Glyn, 1 El. & El., 652. So may a warehouseman, although liable to the owner only for his own negligence. Waters v. Monarch Ins. Co., 5 Ell. & Black, 870; Stillwell v. Staples, 19 N. Y., 401; De Forest v. Fulton Ins. Co., 1 Hall, 84. So may a charterer of a vessel who is liable to pay its value in case of loss, or has contracted to insure it against usual risks. Oliver v. Greene, 3 Mass., 133; Bartlett v. Walter, 13 id., 267.

Insurers of a building have an insurable interest therein which they may re-insure. N. Y. Bowery F. Ins. Co. v. N. Y. F. Ins. Co, 17 Wend., 359. And a tenant who has agreed verbally to keep the demised property insured is liable to the' lessor for a breach of that agreement and has an insurable interest in the property to the. extent of the amount agreed to be insured. Lawrence v. St. Mark's F. Ins. Co., 43 Barb., 479. Other illustrations of this rule are to be found in Herkimer v. Rice, 27 N. Y., 163; Kline v. Q. I. Co., 7 Hun, 267; 69 N. Y., 614; Waring v. Indemnity F. Ins. Co., 45 N. Y., 606; May on Ins., chap. 6; Wood on Fire Ins., chap. 8. The principle upon which these cases all rest is that there is a possible liability arising out of the peril insured against •and that creates an insurable interest

Under the contract with his son the plaintiff had agreed among other things to keep the property insured, and this agreement gave him a right to insure the buildings in his own name to their full value. The defendant contends that as the contract with his ■son was by paroi and hence void the plaintiff had no interest in ■or liability towards the insured property. This proposition might have some weight if the insurance was upon the title or interest of the plaintiff as life tenant, or if there had been representations on the part of the plaintiff that such was the interest intended to be insured. But we think it has no application to the case made by the evidence. The plaintiff while in the unquestioned enjoyment and possession of the property could not deny bis liability under the contract with his son to insure, and under that agree- ' ment so far as is disclosed in this action he would have been liable for the loss of the buildings if he had failed to insure them.

The defendant, if it had notice of the relation which plaintiff bore to the property, cannot deny the legality of its contract, .although it may be that the plaintiff could not have enforced against his son his right to use the property for life had that been denied. The final question is whether the defendant had such notice of the facts as to the title to the property as justified the court in finding that it had waived the conditions heretofore ■quoted. The question of waiver was one of fact and we think the evidence was sufficient to support the conclusion reached.

There was evidence to the effect that plaintiff informed the .agent who issued the policy that his son, who lived in Chicago, had bought the property, for him and he was to have it as a home as long as he lived, and that he was to insure it, keep it in repair and pay the taxes. This statement fairly gave notice to the agent that the plaintiff was not the owner of the property and that as a part of the consideration for its use and possession he had agreed to insure it.

If the defendant desired further information as to the title it should have requested it, and not having' done so it must be assumed now to have had notice of such facts as it could with reasonable diligence then have ascertained.

This evidence justified the finding that the conditions of the policy as to title were waived, and this conclusion was not weakened by the fact that in the policy delivered there was a condition that no agent had power to waive any of the conditions of the policy and no notice to or agreement by any agent would be binding on the defendant unless expressed in writing and endorsed upon the policy and signed by the agent. The agents who issued the policy were general agents having authority to make contracts without reference to the home office and their power to waive conditions in the policy was co-existent with that of the company itself. Trustees v. Brooklyn F. Ins. Co., 19 N. Y., 305; Walsh v. Hartford F. Ins. Co., 73 id., 5, 9.

Conditions which enter into the validity of a contract of insurance at its inception may be waived by agents and are waived if so intended although they remain in the policy when delivered. Van Schoick v. Niagara F. Ins. Co., 68 N. Y., 434; Bennett v. North British Ins. Co., 81 id., 273; Woodruff v. Imperial F. Ins. Co., 83 id., 133; Haight v. Continental Ins. Co., 92 id., 51.

The judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    John T. Willets et al., Resp’ts, v. Orinal C. Hatch, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Pledge—Preservation of property pledged.
    While a pledgee is chargeable with ordinary care, what constitutes such, care is dependent upon circumstances, and while the endorsement and delivery of a warehouse receipt to him gives him the right to exclusive possession and control if he chooses to exercise it, yet where he does not claim or exercise such right and the pledgor has free access to the goods, it is equally the duty of the latter when he knows the danger to care for the goods and make the damages as little as possible, and where injury to the goods occurs through his failing to do so he cannot hold the pledgee liable for the loss.
    S. Same.
    Whether, under the circumstances, it was the duty of the pledgees to take some action for the preservation of the property after they were advised of the fact of its deterioration, and whether they were chargeable with negligence in that respect, were questions properly submitted to the jury.
    Appeal from judgment entered on order of the general term ■of the court of common pleas of the city of Hew York, affirming judgment entered upon a verdict in favor of the plaintiffs.
    In July, 1886, the plaintiffs loaned to the defendant $2,400. At the time the application was made for the loan, the defendant had recently imported from Ireland a quantity of wet, salted calf skins, which were then on board a vessel in Hew York harbor. He offered them as collateral security. The skins, by the understanding of the parties, were taken, by the defendant to the warehouse of Schultz, Innes & Go., their receipt delivered to him, who •endorsed and delivered it to the plaintiffs. This action was brought in August, 1888, to recover the balance alleged to be due the plaintiffs on account ot' the loan. The defendant, by way of counterclaim, alleged that by the fault and neglect of the plaintiffs the calf skins became greatly impaired in condition and value, and that as the consequence the defendant sustained damages, for the amount of which he demanded relief. There was no-abatement of the plaintiffs’ recovery by reason of the alleged counterclaim.

      John McDonald, for app’lt; Wilson M. Powell, for resp’ts.

       Affirming 33 St. Rep., 608.

   Bradley, J.

The controversy at the trial had relation to the-defendant’s claim for damages arising from the deterioration of the calf skins during the time they were in the warehouse of Schultz, Innes & Co. They were placed there by the defendant • in July, 1886, where they remained until in July, 1887, when they were found to be in such an impaired condition as to have-but lit.tle value. The number of these skins was 2,748. They were contained in 458 bundles all in one pile, the inside of which had become heated, and the skins there were in the process of decay.

The question presented at the trial was whether or not this condition and the consequent loss were chargeable to the failure of the plaintiffs to perform any duty assumed by or imposed upon, them when they as collateral for their loan to defendant received from him the warehouse receipt and the right of property represented by it. There was not any substantial dispute about the-facts, and the defendant insisted that the plaintiffs w'ere chargeable-, with the loss resulting from the injury to the property of which they held the receipt. And this charge is founded upon the-proposition that during that time they had the legal title to and the possession of the skins. They did have the legal title and the endorsement and delivery of the warehouse receipt was a symbolical or constructive delivery of the possession of the goods to the plaintiffs. 2 Kent’s Com., 500; Wilkes v. Ferris, 5 Johns., 335; Gibson v. Stevens, 8 How., U. S., 384, 399. The effect is similar to that given to the delivery of or transfer for such purpose of a bill of lading. This vests the title, and in support of it in like-manner transfers the possession of the goods represented by the-bill. First National Bank of' Cincinnati v. Kelly, 57 N. Y., 34;: Marine Bank v. Fiske, 71 id., 353; Commercial Bank v. Pfeiffer, 108 id., 242; 13 St. Rep., 506. And this may be accomplished although the property is remote from the place at which the transaction occurs and such documentary evidence of title is delivered and taken. In the eye of the law the person to whom the warehouse receipt or bill of lading is properly delivered or transfen-ed for such purpose takes the possession of the goods covered by it. Both parties to the transaction, when the transfer is so made-as collateral security, have an interest in the goods arid in their preservation. The one has the legal title in support of his special property in them, and the equitable interest of the other is for the-purpose of satisfying his debt and in view of any surplus which may remain in the event of their appropriation to such purpose.

When, the warehouse receipt was endorsed and delivered to the plaintiffs it evidently was contemplated that the skins should remain where they were until the debt should be paid. And in the meantime there was not, nor could properly be, any obstruction to the defendant’s access to them for the purpose of negotiating a sale of the skins with a view to realize funds for the payment of the debt, or do anything not inconsistent with the rights of the plaintiffs. This the defendant understood, and as often as weekly, except a small portion of the" time when he was physically unable to do so, went into the warehouse, examined the skins as much as he pleased, and from time to time was there with persons to whom he sought to make sale of them. The plaintiffs gave no personal attention to the property. They did not see the skins before they were taken to, nor while they were at the warehouse of Schultz, lunes & Go. Uor did they exercise any supervision over them. They relied solely upon their possession of the receipt for the protection of the security furnished by the property.

The defendant’s counsel contends that the plaintiffs were •charged with the duty of exercising care, which they negligently failed to bestow, for the preservation of the property from deterioration. And it was in that view that the court was requested to direct the jury to find for the plaintiffs such amount only as remained of their claim after deducting therefrom $1,703.75, the amount of the alleged ■ counterclaim. This the court declined, and charged the jury to the effect that while a pledgee is chargeable with ordinary care, what constitutes such care is dependent upon circumstances, and submitted to them the question whether, under the circumstances in the present case, the plaintiffs failed •to exercise the care assumed by, or which was due from them in that respect. Upon the refusal to charge as requested and to the instruction given, exceptions were taken. And the court also charged that if the plaintiffs had taken the goods into their own custody they would have been chargeable for the damages. The loan was made to the defendant for no definite time, It- was subject to call by the plaintiffs and to payment at any time by the defendant.. The latter resided in the city, and it evidently was contemplated that he would "negotiate a sale of the skins, which he ineffectually sought to do. They were accessible to and frequently seen by him. His interest in their preservation was at least equal to that of the plaintiffs. The latter were not advised how long the payment of the debt would be delayed and the property remain in store. For aught they knew, their relation to the property might any day be terminated by the satisfaction of their claim.

It cannot under the circumstances be assilmed that the plaintiffs were required to cause the property to be handled over and inspected, nor that any such undertaking on their part was within the contemplation of the parties. There is no question about the duty of a creditor who has become bailee of property transferred to and taken possession of by him as security to use ordinary «care for it protection and preservation, but as said in Cutting v. Marlor, 78 N. Y., 458, “In determining what constitutes such care, the nature and value of the property, and the means of protection possessed by the bailee, and the relation of the parties and other circumstances must be considered.” If the plaintiffs had taken the actual custody of this property, and assumed the exclusive dominion over it, a different question than is now presented may have arisen. And such was the nature of the cases to which our attention is called by the defendant's counsel. 2 Kent’s Com., 587; Wheeler v. Newbould, 16 N. Y., 392; Insurance Co. v. Marr, 46 Penn. St., 504; Hanna v. Holton, 78 id., 334. But that was not the situation, nor so treated in the present case. The plaintiffs held the warehouse receipt, and had the legal rights which it afforded. The warehousemen were in that sense their bailees, but the bailment was nevertheless for the mutual benefit of the parties, and the defendant was at liberty to terminate at any time the plaintiffs’ relation to the property by paymentytf the debt, and in the meantime it was subject to his inspection. The plaintiffs could not foresee any day that the receipt may not have-been taken up by the defendant the following day. Then it seems that the surface appearance of the skins to observation was not such as to disclose the condition of those within and at the-bottom of the pile. And although the defendant frequently examined them he failed to discover any impairment of the skins-until about the 1st of June, 1887. The evidence tends to prove that he thereafter called the attention of the plaintiffs to the subject, and advised them that the skins should be re-salted or tanned, and suggested to them that they send them away to be tanned on their account, which they declined to do; that the defendant also-proposed to take them to his own storehouse, and there treat, them. The plaintiffs did not consent to this, but suggested that he pay the debt, and do what he pleased with the property. It does not appear that the defendant designated any place other than his storehouse to take it.

In July they were, with the consent of the plaintiffs, removed! to their storehouse by the defendant, who there sought to improve-the condition of the skins and to stay the progress of decay or disintegration, but apparently without much success; and they were finally sold for a small sum. - When the attention of the plaintiffs was first called to this condition of the skins if they unreasonably denied to the defendant the opportunity to do that which may have relieved the property from further injury or tended to its preservation to any extent, they would have been chargeable with the consequences which followed. It is quite evident that at that time a considerable portion of the skins was in an irreparable condition, at least such inference is ¡Dermitted, although it may not have then been so understood by the defendant. And to what extent they afterwards and before the removal to the plaintiffs’ warehouse were further affected does not. appear. But the plaintiffs were not required to permit the defendant to take them to his own warehouse. This would have been a restoration of the actual possession of the property to him, and as against his creditors or bona fide purchasers from him it may have rendered the plaintiffs’ security ineffectual. Yenni v. McNamee, 45 N. Y., 614; Farmers & M. Nat. Bk. v. Lang, 87 id., 209. And whether under the circumstances it was the duty of the plaintiffs to take some action for the preservation of the property after they were advised of the fact of its deterioration, and whether they were chargeable with negligence in that respect, were questions properly submitted to the jury; and there was no error in the modification as made of thd request to charge in that respect. The proposition which the defendant asserts in support of his claim is upon the assumption that the plaintiffs had the actual and exclusive possession of the property, and therefore assumed and were charged with the duty of exercising care to ascertain its condition and for its protection and preservation from injury from natural inherent causes arising from the situation in which it was in the warehouse where the defendant had so placed it. But the case as presented by the evidence was not necessarily that so assumed by the defense, as has been already observed.

While the plaintiffs had the right as against the defendant to have the property remain there, the opportunity of the latter to inspect the property and exhibit it for sale at his pleasure was not abridged. And it seems he took occasion to give the skins frequent attention. His interest was such as to naturally and reasonably actuate him to do so. And when occasion required the removal of the property from that warehouse it was taken by him to the plaintiffs’ premises where it continued to have his care and supervision no less than before. It cannot, as matter of law, properly be said that although the defendant, who frequently saw them, did not, the plaintiffs ought to have apprehended and, by investigation, discovered the degenerating process going on at the bottom and in the interior • of the mass of skins before it was ascertained by the defendant. In view of the relation actually and practically assumed by the parties to the property and of its place of storage and situation, the court properly refused to direct the verdict as requested, and in submitting questions of fact to the jury charged as favorably to the defendant as he was fairly entitled. Hone of the exceptions seem to have been well taken. The judgment should be affirmed.

Judgment affirmed, with costs.

. All concur, except Vann, J., not voting.


author: Follett, Ch. J.

text:
    Robert Deeley et al., Resp’ts, v. John Dwight et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Chattel mortgage—Validity.
    The legal title to property not in existence actually or potentially cannot be transferred by way of sale or mortgage.
    2. Same—Property not yet in existence.
    One G. agreed to procure and sell to defendants certain machinery, and they paid him therefor. Subsequently the machinery was manufactured by plaintiffs for G., and he delivered it to defendants, who set it up in their factory. Before much, if any, of the machinery was manufactured, G. gave his note and a chattel mortgage to plaintiffs, but they did not file the; latter until a year after, the defendants having no prior notice of plaintiffs' claim. Meld, that the machinery not having been manufactured at the time G. gave the chattel mortgage, he had no title to it, and the instrument did not vest the legal title in plaintiffs, nor did it create a legal lien upon the property described therein.
    Appeal from, an order of the general term of the court of common pleas of the city and county of New York, which set aside a verdict directed at circuit for the defendants and granted a new trial, with costs to abide the event.
    In the autumn of 1883 Joseph Grandolfo contracted to sell machinery, to be manufactured and thereafter delivered, to the defendants for $5,666. In performance of the contract Grandolfofurnished additions and performed labor for which the defendants, agreed to pay $557.50., making the full amount of the indebtedness $6,223.50, which the defendants paid as follows: October 23,. 1883, check $2,250; November 22, 1883, check $1,500; December 11, 1883, check $2,473-.50.
    The machinery was manufactured by the plaintiffs for Grandolfo and was delivered to him at various dates in February, March and April, 1884, for which he agreed to pay the plaintiffs $4,700. As the different pieces of machinery were delivered toGrandolfo he delivered them to the defendants, who set them up in their factory. February 21, 1884, before much, if any, of the machinery was manufactured, Grandolfo gave his promissory note, due on demand, to Robert Deeley, one of the plaintiffs, for $4,700, the agreed purchase price, to secure the payment of which Glandolfo on that day executed and delivered to Robert Deeley a. chattel mortgage upon the machinery then manufactured and that which was afterwards to be made and delivered pursuant to the oral contract theretofore entered into between them. The-mortgage was in the usual form, and recited that the articles are “ now in the possession of the said party of the first part in the-building of Messrs. John Dwight & Co., First avenue, between One Hundred and Twelfth and One Hundred and Thirteenth-streets in the city of New York.”
    The mortgage contained the usual clause selling the goods to the mortgagee upon condition, and as security, and that in case default was made in payment, power was given to take and sell the goods. Afterwards .$1,500 was paid on the note, and May 13, 1885, the mortgagee endorsed a statement upon the mortgage that there was then due and unpaid thereon $4,319.75, and on the same day filed it in the office of the register of the city and county of New York. The mortgage had not been previously filed, and the defendants had no notice of its existence nor of the plaintiffs’ claim, and before it was filed defendants had. expended $5,355.27 in setting it up, in other machinery and improvements to be used in connection with that sought to be recovered.

      A. P. Ketchum, for app’lts; Geo. P. HotaMng, for resp’ts.

       Reversing 33 St. Rep., 616.

   Follett, Ch. J.

An action to recover damages for the conversion of chattels is a strictly legal one, which cannot be maintained unless the plaintiff is entitled to the immediate possession of the property, if in existence. Except as provided by statute, possession by the lienor of chattels on which the lien is claimed is indispénsable to support a common law lien. One having such a lien can maintain trover if the property is wrongfully taken or withheld from his possession, but such an action will not lie to enforce an equitable lien as against the owner of the legal title who remains in possession of the property and has not contracted it to the lienor. The instrument under which the plaintiff claims to recover is in form a chattel mortgage. Gandolfo, who executed it, assumes to transfer the legal title to the machinery to Robert Deeley, the plaintiff’s assignor, subject to be defeated upon the payment of $4,700. But the machinery not having been then manufactured Gandolfo had no title to it, Andrews v. Durant, 11 N. Y., 35; Comfort v. Kiersted, 26 Barb., 472, and the instrument did not vest the legal title of the machinery in Deeley, nor did it create a legal lien upon the property described therein. Gardner v. McEwen, 19 N. Y., 123; Jones v. Richardson, 10 Met., 481; Pettis v. Kellogg, 7 Cush., 456; Otis v. Sill, 8 Barb., 102; Conderman v. Smith, 41 id., 404; Thomas Chat. Mort., § 137; Jones Chat. Mort., § 138.

We find no case which holds that the legal title to property not in existence actually or potentially can be transferred either by way of sale or mortgage.. That an equitable lien may be created on property to be brought into existence is well settled, and an action to foreclose the lien may be maintained. It was said in Coats v. Donnell, 94 N. Y., 177, “A contract for a lien-on property not in esse may be effectual in equity to give a lien as between the parties when the property comes into existence, and where there are no intervening rights of creditors or third persons, seems to be established by several decisions in this court.”

Kribbs v. Alford, 120 N. Y., 519; 31 St. Rep., 564, which is relied on by the respondent, is not in conflict, but in harmony with these views. It was there said : “ Invalidity at law imports nothing more than that a mortgage of property thereafter to -be acquired is ineffectual as a grant to pass the legal title. A court of equity, in giving effect to such a provision, does not put itself in conflict with that principle.. It does not hold that a conveyance of that which does not exist operates as a present transfer in equity any more than it does in law. But it construes the instrument as operating by way of present contract to give a lien, which, as between the parties, takes effect and attaches to the subject of it as soon as it comes into the ownership of the party. ■Such we deem the rule to be in equity in this state.” McCaffrey v. Woodin, 65 N. Y., 459; Wisner v. Ocumpaugh, 71 id., 113; Coats v. Donnell, 94 id., 168, 177; Hale v. Omaha Nat. Bank, 49 id., 626, 632.

It follows from these views that plaintiffs failed to establish a legal title either as general or special owners, and were not entitled to recover.

The order should be reversed and the judgment entered on the verdict affirmed, with costs.

All concur.


author: Pratt, J.

text:
    Patrick S. Boylan, App’lt, v. Charles A. Brown et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Negligence—Contbibutoby—Defective dock.
    Where the defects in a dumping dock are patent and discoverable on. superficial inspection, it is negligence for a person to drive upon such dock, ' and he cannot recover from the owners for injuries caused by sucll defects.
    Appeal from judgment in favor of defendants dismissing the complaint.
    Action by plaintiff as assignor of a claim for the loss of a horse, cart and harness, alleged to have caused by the defective condition of defendants’ dock.
    The defendants maintained a dumping board for loading refuse material on scows, at the foot of Grouverneur street, East River, in the city of New York. The dumping board was a floating-platform, connected with the dock by a bridge. The scow to be loaded lay immediately alongside the dumping platform. Carts were backed down on the dumping platform to the very edge and then the bodies were tilted over the edge of the dump so as to shoot their contents into the scow beneath.
    To stop the carts when backed down to unload, a string-piece, or square timber, about a foot high, was stretched across the edge of the dumping platform so that the wheels would strike against, it; and in addition, immediately in front of the string-piece, there-was a space of about seventeen inches where the flooring planks-had not been laid, leaving an opening into which the wheels of the cart would settle down, furnishing a further safeguard against backing over the string-piece. The open space of seventeen inches-was partly closed up by a slat or narrow piece of flooring. The string-piece was worn down three or four inches at. the time of the-accident. ;
    The plaintiff’s assignor owned a horse and cart which was used in carting refuse materials to the dump. The horse and cart were-not hired by the defendants, nor did they exercise any custody or control over them, but were in the custody and control of" the-plaintiff’s assignor, and in the immediate charge of a driver who was employed by the plaintiff’s assignor. The plaintiff’s assignor simply paid to the defendants so much per load for the privilege of dumping refuse on their scows at the dump.
    On the .day of the accident which is the subject matter of the-suit, the driver of the cart took a load of refuse to the dump, backed the cart down against the string-piece so that the wheels were in the open slot in the floor, tilted the body of the cart, shot the load upon the scow, and then drove the horse safely up the-bridge leading to the dock for a distance of ten feet or more, when another horse and cart coming down to unload drove immediately across, in front of the horse in question, on the wrong side, striking the horse and frightening him, so that instead of keeping on, over the bridge to the dock, he commenced suddenly and rapidly to back down the bridge and across the platform with such force that the wheels went across the open slot and over the string-piece, there being no load in the cart to hold it down by weight, and the cart fell from the platform, dragging the horse with it, so that both fell to the scow beneath. As the horse was dragged over by the cart his hind leg slipped through the slot or opening in the floor, and was broken as lie fell off the platform with the cart. The horse was then shot with a pistol; as he lay upon the scow.

      J. Tredwell Richards, for resp’ts; A. M. & G. Card, for app’lt.
   Pratt, J.

The point made by the defendants that “ the alleged: defect in the construction and condition of the dump being patent- and discoverable upon superficial inspection, the plaintiff’s assignor had the same means of knowledge in regard to it as the' defendants, and if it was negligence on the part of the defendants-•to provide such an appliance for use of the plaintiff’s assignor in unloading the horse and cart, it was also negligence on the part of plaintiff’s assignor to drive the horse and cart on such dump,”’ is good law and decisive of this appeal. Marsh v. Chickering, 101 N. Y., 396; Cahill v. Hilton, 106 id., 512: 11 St. Rep., 26; Splittorf v. State, 108 N. Y., 205; 13 St. Rep., 472; McQuigan v. D., L. & W. R. R. Co., 122 N. Y., 618; 34 St. Rep., 618; McGrath v. Walsh, 23 St. Rep., 63.

But in addition it may be added that there was no adequate proof that the device for dumping here used was not proper for the purpose it was intended to serve.

• Again, it is doubtful if then ature or condition of this platform either caused or contributed to the accident, but rather that the accident was proximately caused by fright of the horse or unskillfulness of other drivers using the dump at the same time.

A nonsuit was properly granted, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    William F. Lawrence et al., App’lts, v. Arvin W. Harrington et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Contempt—False justification by sureties.
    Sureties upon an undertaking on appeal who swear falsely upon justification with, intent to deceive the court as to their responsibility, and thereby prevent the collection of the judgment, are guilty of contempt of court under § 14 of the Code. It is not essential that they should be convicted of perjury before they can be punished.
    Appeal from order denying motion to punish for contempt Joseph H. Harrington and Arvin W. Harrington, Jr.
    Plaintiffs recovered judgment against defendant Arvin Harrington from which an appeal was taken to the general term and the court of appeals, undertakings being given signed by the defend-

      ants against whom this proceeding is taken, who each swore that he was worth $5,000. The judgment was modified, but the judgment debtor had failed in the meantime, and .judgment was recovered upon the undertakings, and the sureties examined upon supplementary proceedings, when it was discovered that they had sworn falsely as to their property.

      James M. Hunt, for app’lts; O. B. Wellington, for resp’ts.
   Pratt, J.

The papers clearly established that Joseph H. and Arviu W. Harrington, Jr., sureties, swore falsely upon a justification as sureties before a notary with an intent to deceive the court as to their responsibility. They well knew ‘that the purpose was to stay an execution against their father, and that result was accomplished by such false swearing.

The facts are too clearly proved to require discussion. It is also clear that' the rights of the plaintiffs have been seriously prejui diced by such deceit and false swearing.

The plaintiffs were prevented from collecting their judgment, which constituted under § 14 of Code of Civil Procedure a civil contempt. It was an interference with the due and orderly progress of the action to its ultimate close, and impeded the right of the plaintiffs to collect the judgment. King v. Barnes, 51 Hun, 550; 22 St. Rep., 47; affirmed in 113 N. Y., 476; 23 St. Rep., 263.

It was not essential that the sureties could be convicted of perjury, as their conduct was a fraud upon the plaintiffs and the court .and prevented the course of justice.

The distinction between a civil and criminal contempt has been pointed out too often to require any comment.

By falsely making the' statutory oath they intended to and did defeat the remedy of the plaintiffs, and this prejudiced and injured their rights. Egan v. Lynch, 49 N. Y. Supr. Ct., 454; Foley v. Stone, 30 St. Rep., 834.

The presumption arising from the plaintiffs’ papers is that the plaintiffs were damaged to the amount of the judgment which they were prevented from collecting.

Order reversed, with costs and disbursements, and rehearing ordered at special term.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Jane Ann Conklin, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Railroad—Negligence—-Hand car.
    To propel a hand car past a station at the rate of fifteen miles an hour on a down grade, without a hell or other notice, at an hour when passengers are about to gather to take a train, is negligence, especially when there is a freight train in front of the station to some extent obscuring the view.
    '3. Same—Contributory negligence.
    Where plaintiff's view of the track was interfered with by persons between her and the hand car and by smoke and steam from, the engine, she cannot be held guilty of contributory negligence as matter of law, but the question is properly one for the jury.

      Appeal from-judgment entered upon dismissal of the complaint at circuit.
    Action to recover for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff left her house to take a train on defendant’s road; passed in the rear of a freight train which was discharging freight at the station, and ■ in crossing the tracks to reach the station was struck by a hand car which was being propelled at the rate of fifteen miles an hour.

      Hoffman & Comesky, for app’lt; AsKbel Green (Calvin Frost, of counsel), for resp’t.
   Pratt, J.

No argument is required to show that to propel a hand car past a station at the rate of fifteen miles an hour on a down grade, without a bell or other notice, at an hour when passengers were about .to gather to take a train, was negligence.

The fact that a freight train was upon one track in front of the station discharging freight, and necessarily to some extent attracting attention and obscuring the view, renders the negligence more pronounced and striking. There is, therefore, no question as to the negligence of the defendant.

Upon the question of contributory negligence, it must be borne in mind that the plaintiff’s view of the track would be somewhat interfered with by the persons who were between her and the hand car. The smoke and steam of the engine would aid the obscurity, and all the incidents of a starting freight train would be liable somewhat to diminish the accuracy of plaintiff’s vision and hearing.

A hand car is not only nearly noiseless, but is not calculated to catch the sight.

Barnard, P. J., and Dykman, J., concur.

We do not think it can be said as a matter of law that the plaintiff was negligent.

Boll v. Adirondack R. R. Co., 22 St. Rep., 365, was a hand car case, and we think well decided, and the court there point out the reasons why one might fail to discover a hand car, or to observe that it was in motion.

Under the rule in Massoth v. D. & H. C. Co., 64 N. Y., 524, contributory negligence of plaintiff could not be assumed by the court. That question was for the jury.

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


author: Barnard, P. J.

text:
    The People, Resp’ts, v. Denton Fowler et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Nuisance—Highways—Encroachments.
    Village trustees are commissioners of highways only, and as such cannot authorize the erection of a nuisance on the highway, or legalize its continuance.
    2. Highways—User.
    A highway established by proof of user for twenty years, must continue a highway as used until it is officially changed.
    Appeal from judgment entered on conviction of defendants of he crime of public nuisance in erecting and maintaining a fence within the limits of a public highway in the village of Haverstraw.

      Irving Brown, for app’lts; Wm McCauley, Jr., dist. att’y, for resp’ts.
   Barnard, P. J.

The indictment charges that the defendants erected and maintained a common nuisance upon Broadway or West street, in the village of Haverstraw. Proof was given tending to show that the defendants about three years before the trial put up a fence, a part of which was eleven feet on the highway named. The defendants offered evidence tending to show that the village trustees had directed the erection of the fence in question. The offer was properly rejected. . The trustees are commissioners of highways only, and as such cannot authorize the erection of a nuisance on the highway, or legalize its continuance. Mo official act of the trustees was offered. The highway was established by proof of user for over twenty-years, and it must continue a highway as used until it is officially changed. An oral conversation with some of the trustees will be powerless even upon the question of intent. The wrongful intent is- proven by the wrongful act.

The remark of the judge that there was temptation in Haverstraw to encroach on the highways was probably in reference to the existence of clay and sand for brick making purposes in that village. When the attention of the judge'was called to the remark he at once explained that the offense charged would not be ■established by any temptation to encroach, but only by proof of the fact.

The conviction and judgment should be affirmed.

Dykman and Pratt, JJ., concur.


text:
    The J. M. Horton Ice Cream Co., Pl’ff, v. Edward P. Merritt et al., Def'ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    -Corporations—Authority op president to sell its goods.
    A resolution of the board of directors of a corporation is'not necessary to authorize its president to make a sale of its goods in the usual line of its business.
    Exceptions ordered heard in the first instance at general term after dismissal of the complaint
    Action for conversion of a quantity of ice.
    The complaint was dismissed on the ground that the president of the Greenwood Lake & Lake Denmark Ice Co. had no authority to sell this ice or appoint an agent to do so.

      James cb Thomas H. Troy, for pl’ff; Charles H. Murray and D. B. Ogden, for defts.
   Barnard, P. J.

The complaint avers a conversion of the plaintiffs property, being about two hundred and fifty tons of ice of the value of $1,250, by the defendants. The taking of the ice by the defendant Mould is proven, and that the taking was by virtue of a sale by the defendant Merritt to him of the ice, and an •order to Mould by Merritt to take possession. The plaintiff’s title is fully proven.. The ice belonged, in the early part of December, 1889, to the Kenebeck Ice Company. On the 9th of December, 1889, this company sold the ice to the Green Lake & Denmark Ice 'Company. This sale was negotiated by one A. G. Fisher, as broker. The defendant Merritt is the president of the Green Lake .& Lake Denmark Ice Company. He directed Fisher to sell the ice. Fisher sold to the plaintiff and received the money for it by •check. The ice was in a house on the Gowanus creek; there was other property belonging to the Denmark Company besides the ice. Merritt requested the broker Fisher to sell the balance of the property. Fisher, after he received the check from the plaintiff, got it cashed and.paid an intermediate broker twenty-five •dollars. He told Merritt what he had done, and that he would keep the balance of the check, and when the ice house and other property was sold the amount of the money in Fisher’s hands would be credited on the entire sale. Ho objection was made to this by Merrit or by the plaintiff, the purchaser. It was not necessary to have a resolution of the board of directors of the Denmark ■Company to complete the authority of its president to, sell. He is proven to have acted as agent of the company in the company’s •office. ' The sale was in the usual line of the company’s business. The ruling that the plaintiff’s title was not established because of the absence of proof of authority in its president to sell it was ■erroneous.

The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.

Dykman, J., concurs; Pratt, J., not sitting.