text:
    CHRISTIAN F. A. DAMBMAN, Appellant, v. HERMAN SCHULTING, Respondent.

      Fraud — release avoided by evidence of—neglect to give such evidence in action brought to recover the debt—action to set aside release cannot thereafter be maintained— Under Oode, no reply necessary except to couni&i’-claim.

    All controversies respecting the subject-matter of a litigation must be determined in one action, and if the defense of fraud in obtaining a release be not set up in the action brought for the debt, and in which such release is pleaded in bar, an action to set aside such release for fraud cannot be maintained.
    Fraud invalidates all instruments, however solemn; and the effect of a release pleaded in an answer to an action prosecuted for the debt, may be avoided by proof that it was fraudulently procured.
    Under the Oode, no reply to an answer is necessary unless it sets up a counterclaim, but the plaintiff is permitted to prove any matter in denial or avoidance of the answer when it sets up new matter, as the case may require.
    Appeal from an order sustaining a demurrer to the plaintiff’s complaint.

      W. Watson, for the appellant.

      C. B. Smith, for the respondent.
   Daniels, J.:

This action was brought to set aside and annul a release, on the ground of the defendant’s alleged fraud in its procurement. It appeared by the complaint, that a preceding action had been brought for the recovery of the debt, and the release answered as a defense. For that reason the demurrer was sustained. The plaintiff insisted that the decision made was erroneous, for the reason that he could not avoid the effect of the release by proving the fraud in that action. In that the learned counsel for the plaintiff is very clearly mistaken. Fraud invalidates all instruments, however solemn, both at law and in equity. And as no reply is either required or provided for, unless directed by special order of the court, to the defense of a release, the plaintiff may avoid and overcome its effects by evidence showing it to have been procured by fraud. The provision of the Code upon this subject, is, that “ the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require.” And it is-so broad, that it secures to the plaintiff the benefit of every possible answer to the defense made by way of new matter not constituting a counter-claim, as fully as though it were alleged in the most complete and artistic form. He may avoid it by any evidence properly attended with that result, under the principles of either law or equity. This was held to be the right of the plaintiff under the present system of practice, when a reply was required to new matter in the answer, And the principle has been held to be equally as applicable since the reply to such a defense has been dispensed with. In deciding that case, it was stated by Judge Leonard, who delivered the opinion of the court, that no reply to an answer is necessary, unless it sets up a counter-claim; but the plaintiff is permitted to prove any matter in denial or avoidance of the answer, where it sets up new matter, as the case may require.

The right of the plaintiff to avoid the release by proof of fraud in the action prosecuted for the recovery of the debt, is further confirmed by the conclusion stated by Judge Allen, in deciding the case of Dobson v. Pearce, and which was concurred in by the court, that the intent of the legislature is very clear, that all controversies respecting the subject-matter of the litigation, should be determined in one action, and the provisions of the Code are adapted to give effect to that intent. To the same general effect, also, are the cases of Crary v. Goodman, and Foot v. Sprague.

The plaintiff’s right to be relieved from the effect of the release on the ground of fraud, was, under these principles, included in the preceding action. This action to secure that result was therefore improper, and the decision sustaining the demurrer to the complaint was right, and should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.

       Code, § 168.

       Phillips v. Gorham, 17 N. Y., 270.

       Sheehan v. Hamilton, 2 Keyes, 304.

       Id., 306.

       2 Kern., 156.

      2 Kern., 165.

       Id., 266.

         12 How. Pr., 355.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    ABRAHAM NEW, Respondent, v. GEORGE ANTHONY and another, Appellants.

      Inquest—when order opening, directs costs to abide event — effect of such order when less than fifty doUwi's is recov&t'ed.

    When an order opening an inquest directs that the costs of the inquest, and ten dollars costs of the motion for such order, abide the event, and upon the final trial, the claim being one which might have been sued upon in the justice’s court, the plaintiff recovers less than fifty dollars, he is not entitled to such costs.
    Appeal from an order directing' a readjustment of plaintiff’s costs.

      Henry Whittaker, Jr., for the appellants.

      E. Goldsmith, for the respondent.
   Daniels, J.:

The plaintiff in this action recovered a judgment on its trial as an inquest. That, on motion, was vacated, with ten dollars costs to the plaintiff,' and .the costs of the inquest were ordered to abide the event. Hpon the final trial had, the plaintiff recovered less'than fifty dollars; and, as the claim was one which might have been sued and tried in the court of a justice of the peace, within the signification of those terms as they are used in the provisions of the -Code concerning costs, the defendants, and'not the plaintiff, were entitled to their costs in the action. They made no claim to the costs of the motion, or of the inquest taken. But the plaintiff claimed that those costs should be allowed to him, because they were made, by the terms of the order, to abide the event of the action, in which he finally recovered a verdict for twenty-four dollars. The order itself gave the plaintiff merely a contingent right to those costs, dependent upon the result of the litigation. And he could only become entitled to recover them by securing such a result as would be lawfully followed by the recovery of costs. As the order did not give him the costs as the result of any recovery in his favor, it must have contemplated -such a degree of success as would be attended with the right to costs under the provisions of the law; and that required a recovery of the sum of at least fifty dollars. The law did not interpose for that purpose in his behalf, upon the recovery of anything less than that amount, in tin action of this description. And where that proves to be the case, the provision is absolute, that the costs shall be allowed to the defendant. These provisions do not support the plaintiff’s claim to the allowance of the costs of the inquest and the motion, for the costs they provide for are given to the defendants. There was no such recovery in the action, as .extended or vitalized the terms of the order. That rendered the plaintiff’s right to costs dependent on such a recovery as should be followed by the costs of the action. And that was not secured by the plaintiff. It was not'merely a verdict in his favor that was contemplated, but such a verdict as would give him the right under the law to recover costs. If that had not been the design of the court in making the order, more explicit language on that subject would have been employed.

It is manifest that the court did not regard the plaintiff as having an unqualified right to the costs in question; otherwise they would not have been made dependent upon a future event. By the direction which was given, the event the right depended upon was one which the law provided should be attended with- the recovery of costs in the action. Nothing less than that could have been designed to give the plaintiff the full benefit of what the order itself did not provide he.should have. No decisive authority has been found upon this subject, but, so far as they apply to it at all, the following cases support the conclusion already mentioned: Gildart v. Gladstone, Bull v. Ketchum, Koon v. Thurman. It was claimed that the order was not appealable, but, under the rule which is now well established, that position is untenable.

The order should be reversed and the motion denied, but, under the circumstances, without costs.

Davis, P. J., and Brady, J., concurred.

Order reversed and motion denied, without costs.

       Code, § 304.

       Code, § 305.

      12 East, 668.

       2 Denio, 188.

       2 Hill, 357.

       Security Bank v. National Bank of Commonwealth, 9 N. Y. Sup. Ct. (2 Hun), 287, and cases cited.


text:
    HENRY L. BUTLER and others, Appellants, v. LOUISA DOUAI WEHLE, Impleaded, etc., Respondent.

      Remedies -= election of— Attachment— Action in equity to set off debt against judgment.

    Where a party against whom a judgment has been recovered commences an action against his judgment creditor for the purpose of recovering a claim existing in his favor against such judgment creditor, and in such action issues an attachment and by virtue thereof attaches such judgment, he is precluded, while the suit in which such attachment issued is pending, from maintaining an action in equity to apply the debt sued on in such action as a set-off against the judgment recovered against him.
    Appeal from order denying a motion to continue an injunction.
    On May 26, 1871, Mrs. Wehle recovered a judgment against Butler, Broome & Olapp, the plaintiffs, for $5,287.44, in the Superior Court of the city of .New York, on which an execution was issued.
    The defendant, Mrs. Wehle, was indebted to Butler, Broome & Olapp, the plaintiffs, and in December, 1869, a suit was commenced, and is still pending, in the New York Common Pleas, in favor of the plaintiffs and against her, to recover that debt.
    On the 1st of November, 1874, attachments were issued in said action from the Court of Common Pleas in favor of the plaintiffs ■ therein, which attachments were served on Butler, Broome & Clapp, and their said indebtedness to Mrs. Wehle on said judgments was duly attached by the sheriff.
    This action was brought to restrain the defendant from collecting the amount of her judgment against the plaintiffs; and a preliminary order and injunction were granted herein, but the injunction not continued on the return day of the order to show cause accompanying it.

      Stephen W. Fullerton, for the appellants.
    That a claim, not in judgment, against an insolvent may be set off by a court of equity against a judgment in favor of the insolvent, is an ancient and well recognized ground of original equity jurisdiction. (Waterman on Set-off [2d ed.], pp. 18, 19 and 20; p. 84 and note; p. 124 and note; p. 184 and note, and pp. 450 to 465, and cases there cited; Lindsay v. Jackson, 2 Paige, 581; Gay v. Gay, 10 id., 369; Simpson v. Hart, 14 Johns., 63; Smith v. Felton, 43 N. Y., 419 ; Zogbaum v. Parker, 55 id., 120; Rose v. Hart, 2 Smith’s Lead. Cases, 309; Pond v. Smith, 4 Conn., 297; Robbins v. Holley [Court of Appeals, of Kentucky], 1 Monroe, 191; Wolcott v. Sullivan, 1 Edw. Ch., 399; Matter of Globe Ins. Co., 2 id., 625; White v. Wiggins, 32 Ala., 424; Merrill v. Souther, 6 Dana, 305.) The insolvency of the party against whom the set-off is claimed, is a sufficient ground for the exercise of the jurisdiction of a court of equity in allowing a set-off in cases not provided for in the statute, although the demands are not in judgment. (Gay v. Gay, 10 Paige, 369; Lindsay v. Jackson, 2 id., 581, and cases there cited.)

      Chas. Wehle, for the respondent.
    The court was right in refusing to continue the injunction, as a continuance of it would be an interference with the process of a court of co-ordinate jurisdiction. (Bagg v. Jefferson, 10 Wend., 615.) Assuming, for the sake of the argument, that this court had the right to prevent another court of co-ordinate jurisdiction from exercising its lawful jurisdiction in a suit therein pending, it ought not to exercise that right to offset a simple debt against a judgment. (Dunkin v. Vandenberg, 1 Paige, 622; Harris v. Palmer, 5 Barb., 105; Waterman on Set-off, §§ 323, 332.) The pretended set-off is already secured to the plaintiffs by attachments levied at their instance on defendant’s property.
   Daniels, J.:

The substantial relief demanded by the plaintiffs in this action, is the set-off of a demand claimed to exist in their favor against a judgment recovered by the defendant against them, and which she endeavored to collect by execution. Before the commencement of the suit, another action was commenced by them against her for the recovery of the debt relied upon as a set-off. In that action, according to the sworn answer of the defendant, an attachment was issued in the plaintiffs’ favor, and the judgment was attached by virtue of it.

The affidavit of Mr. Crosby, one of the plaintiffs’ attorneys, admits the issuing of the attachment, without denying the seizure of the judgment under it. In this state of the case, it may, therefore, be assumed that the statement of that fact in the answer, verified by the affidavit of the defendant’s attorney, is true. It is,entirely clear, that if the suit in which the attachment has been issued shall proceed to judgment, the plaintiffs will be able to -satisfy their debt by means of the seizure of the judgment recovered by the defendant against them. And that would constitute a'complete defense to the present action, to apply it toward the partial extinguishmentof the same judgment, as an equitable set-off.

A similar consequence would result from a judgment in the plaintiffs’ favor in this action. After that, the right to proceed under the attachment would be determined. It is entirely apparent from these facts, that both remedies cannot be at the same time prosecuted and enforced by the plaintiffs. They are inconsistent with each other. And beyond that, one is legal, and the other is equitable. The policy of the law is opposed to such proceedings. It does not allow one party to vex and harass another with two different and inconsistent proceedings, carried on at the same time, to- produce what in substance must be the same result. A different practice would be unreasonable as well as oppressive, and the law will not permit it.

The plaintiffs elected to proceed by virtue of their attachment previously issued in an action for the recovery of their debt. And while that proceeding is pending, they' are concluded by that election from maintaining an action, afterward commenced in equity, to apply the debt as an equitable set-off toward the satisfaction of the judgment recovered against them.

For that reason the plaintiffs had no right .to an injunction restraining the enforcement of the judgment against them in this action. The order should be affirmed, with ten dollars costs besides disbursements.

Davis, P. J., concurred.

Ordered accordingly.

       Livingston v. Kane, 3 Johns. Ch., 224; Sanger v. Wood, id., 416.

       Goss v. Mather, 2 Lans., 283; Rodermund v. Clark, 46 N. Y., 354.


text:
    JOHN GRAY and another, Respondents, v. THOMAS GANNON, Appellant.

      Ambiguity as to order for shipment—explained by course adopted, under prior shipment under the same contract— Substantial performance — when sufficient.

    For the purpose oí explaining an ambiguity in an order relating to the shipment of an engine, evidence may he given of the course adopted and approved of in the prior shipment of another engine under the same contract.
    The performance of an agreement must be such as is required by the true spirit and meaning of the contract, and the intention of the parties. A substantial performance is all that is required, unless it be expressly stipulated otherwise, when the party receiving it will derive from it all the benefits that would have resulted from a literal performance, and in practically the same way.
    Appeal from a judgment recovered on a trial at the circuit.

      S. C. Conable, for the appellant.

      Wm. F. Shepard, for the respondents.
   Daniels, J.:

The plaintiffs recovered a verdict for $500 and interest, upon an order drawn in their favor by Brooks, Bacon & Co. upon the defendant, and accepted in writing by him. By the terms of the order, the defendant was requested by its drawers to accept from the plaintiffs the twenty horse power hoisting engine made for Messrs. A. Thomson & Co., Hew Orleans, and pay the amount of the contract, $735; $500 on delivery on board in Hew York, and the balance, $235, as soon as word was received from Thomson & Co., and charge to account of the drawers.

The order was indefinite and uncertain in its description of the manner in which the delivery of the engine on board was to be made to constitute a compliance with its terms; and to ascertain the intention of the parties to it on that subject, evidence was offered and received to show their understanding, as that was exhibited in what had passed between them, and the course that was adopted and approved of in the shipment of a preceding engine manufactured for Thomson & Co. under the same contract. From that, it appeared that the other engine was shipped to Thomson & Co. at Hew Orleans, by the plaintiffs, in the defendant’s name as the shipper, or consignor, and that the engine mentioned in the order was designed to be sent in the same way. That was the delivery on board mentioned in, and imperfectly expressed in, the order accepted by the defendant. And the evidence was proper for that purpose. The exceptions taken to the rulings admitting it, were therefore properly overruled.

After the order was drawn and accepted, the plaintiffs delivered the engine on board the steamship Cortes, at Hew York, consigned to Thomson & Co. at Hew Orleans. The bill of lading was in the form ordinarily used, and similar in all respects to the one under which the first engin e "was sent, except that it named the plaintiffs instead of the defendant as the shippers, or consignors.' Upon that and the order, they applied to the defendant, for payment of the $500.- He refused to pay; and the evidence tended to show that he placed such refusal on the failure to name him as consignor of the engine in the bill of lading. Further evidence was given, tending to show that the bill of lading was offered and tendered to the defendant both before and after the steamer sailed, and that on its surrender by the defendant, no difficulty would have been encountered in procuring another in its place, containing the defendant’s name as the shipper.

By the omission to have the defendant named in the bill of lading as the shipper of "the engine, the plaintiffs were involved in what was a literal failure to perforin in the manner agreed upon between the parties. And if they were bound to show such a compliance before they could recover the first payment mentioned in the order, then the judgment rendered in their favor cannot be sustained. But a literal performance of the condition on which the right to payment is rendered dependent, is not always required to entitle the claimant to recover. For that purpose, a substantial performance has, in some eases, been deemed to be sufficient. Parties may, by the terms of their agreement, render the right to payment dependent on the literal performance of an act on the part of the person to receive it. And where that appears to be the case, it can be no otherwise recovered, where no dispensation of the condition may exist, than by showing such a performance as the agreement in terms requires. But this is not a case of that description, for it was not specifically agreed, at any time, that the plaintiffs should only be paid on the production of a bill of lading showing a shipment of the engine by the defendant. What in effect was agreed upon, was", that the engine should be delivered on board a steamer at New York, for Thomson & Co., at New Orleans, as the preceding engine had been sent. „ That had been manufactured for them, and was to be delivered so that it would be carried and transported to them at their place of residence. And before the manufacturers could require payment under the terms of the order, it was necessary that a delivery should be shown that would be attended with that result. The defendant was, in fact, the agent of Thomson & Co., and whatever he did in reference to the property, was for the purpose of promoting that object. He had no interest in it different from them; but his control over it was restricted to that disposition of it. And, for that purpose, a shipment in the name of the plaintiffs, as consignors, was just as effectual as one made in the name of the defendant. The property was as sure to be safely transported under one name as it could have been under the other. It was objected that it could not be insured as well; but that is very clearly a mistake; the title and interest of the consignees would be the same in either case. And, for that reason, it could be insured the same with the plaintiffs’ name as consignors, as though the bill of lading had acknowledged its receipt from the defendant. Not the slightest difficulty could be occasioned in' that respect, by the circumstance that the bill of lading named the plaintiffs instead of the defendant as the shippers. The delivery was made substantially in the manner contemplated by the agreement and the terms of the order. For it placed the engine on its transit to the purchasers, and no more than that would have been done if .it had been sent in the name of the defendant as shipper. It was a substantial compliance with an agreement containing no explicit stipulation that payment should only be made on performance of a different description. And that was sufficient to perform the obligation of the plaintiffs, as long as it was made to appear by the evidence, and found by the jury, that the bill of lading actually taken by the plaintiffs was offered and tendered to the defendant when payment was applied for on the order. The rule upon this point has been stated to be, that the performance must be such as is required by the true spirit and meaning of the contract, and the intention of the parties, as expressed therein. A mere literally accurate performance may 'wholly fail to satisfy the true purpose of the contract, and such a performance is not enough,' if the true purpose of the contract can be gathered from it, according to the established rules of construction. The performance which was shown and offered by the plaintiffs was substantially all that could be required from them, and it secured to the consignees and the defendant all the benefits and advantages which would have been derived from that which he insisted upon, and practically in the same way. The exceptions which were presented to the charge and the refusal to charge, requiring a literal performance to be shown on the part of the plaintiffs before they should be allowed to recover the first installment mentioned in the order, for these reasons are incapable of being maintained.

The defendant alleged and proposed to prove by way of defense, that the engine was defectively constructed, and that it would require the expenditure of a considerable sum of money to put it in the condition required by the contract made for it. This defense was excluded by the court, and the defendant excepted. The engine was in fact constructed under a contract, but it was not made with the plaintiffs. It was between Thomson & Co. and Brooks, Bacon & Co. The plaintiffs were not parties to it, nor to any other contract with Thomson & Co., or with the defendant, beyond that for the delivery of the engine as it had been manufactured. If any claim for compensation existed, under the contract made, for the imperfect construction of the engine, it was against Brboks, Bacon & Co., who alone had agreed that it should be built in the manner claimed by Thomson & Co. The plaintiffs constructed it for Brooks, Bacon & Co., and under their employment; and when it was completed, and before the order on the defendant was drawn and accepted, Mr. Bacon of that firm examined and accepted it, and notified the defendant that he had done so, and had found it complete and ready for shipment, as ordered by Mr. Thomson. That showed a' full performance of the plaintiffs’ obligations, as the manufacturers, to the satisfaction of the persons who had employed them ; and for that they were then entitled to payment from Brooks, Bacon & Co. There was no ground on which that could be successfully resisted, simply because the contract between Brooks, Bacon & Co. and Thomson & Co. had not been performed according to its terms. If that were true, it constituted a good claim for remuneration against Brooks, Bacon & Co., but not against the plaintiffs. . *

It was to pay the plaintiffs what had become due to them for constructing the engine, that the order in suit was drawn and accepted. And by that the defendant agreed to pay them the first installment of $500, when the engine, as it then was made, should be delivered on board at the city of New York. He did not qualify his obligation by requiring, as a condition on which the right to payment should depend, that the engine should be found to be manufactured as the contract between Thomson & Co. and Brooks, Bacon & Co. required it to be. But his undertaking was'absolute to pay on its delivery on board a steamer for Thomson & Co. As the indefinite and incomplete terms of the order were rendered intelligible and effectual by the other evidence in the case, and as that was substantially performed by the plaintiffs, they became entitled to the payment the defendant had agreed in that event to make to them. The case presented a simple question of fact, and. that was fairly submitted to the jury. There was no error in any of the rulings made by the court, and the judgment should, therefore, be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.

       Grierson v. Mason, 3 N. Y. Sup. Ct. R., 185.

      2 Parsons on Contracts (5th ed.), 656; 1 Story on Contracts (4th ed.), 36, 37, § 32; Sinclair v. Tallmadge, 35 Barb., 602.


text:
    GEORGE W. MILLER, Appellant, v. JOHN P. WHITE and others, Respondents.

      Complaint — defective as not stating cause of action — how cured, by answer.

    Where a complaint simply alleges an indebtedness to exist without stating the facts necessary to show such indebtedness, but an answer is put in, stating the. matter so omitted in the complaint, and the case has been tried, and, on appeal, a new trial ordered, the court will not, on such new trial, dismiss the complaint on the ground that it does not state a cause of action.
    In such case, when the answer alleges that the indebtedness referred to in the complaint accrued for work an^d labor performed, and proceeds to disclose facts rendering the contract void as against public policy,- the complaint and answer sufficiently present the plaintiff’s case, and if the contract is not void as against public policy, or for some other valid reason, all that is required to justify a-recovery appears" by the pleadings.
    Appeal from an order dismissing plaintiff’s complaint on the ground that the facts set forth in it did not constitute a cause of action.
    The action was brought to charge the defendants as trustees of the Gutta Percha Manufacturing Company, a corporation created under the general law of this State, for an indebtedness of that company, to the plaintiff, upon which a judgment was recovered against the company, in 1865, on the ground that the defendants had failed to file and publish in January, 1865, the report required by the statute.
    The complaint set forth the recovery of a judgment against the company, that execution was returned unsatisfied, and that the said judgment was unpaid and .in full force.

      Robert Sewell, for the appellant.

      H. Sheldon, for the respondents.

       Chap. 40, Laws of 1847.

   Daniels, J.:

The action was brought against the defendants, as trustees of the G-utta Percha Manufacturing Company, a corporation created under the laws of this State for the formation of corporations for manufacturing, mining, mechanical and chemical purposes. They were prosecuted under the provision of the statute rendering the trustees of those corporations liable personally for debts owing, for failing to make, publish and file their report.

The complaint seems to have been sufficient in all respects, except that relating to the nature of the plaintiff’s demand. As to that, it was framed on the mistaken theory that the recovery of a judgment against the corporation was necessary, before an action could be maintained against the trustees. And for that reason the usual allegations describing the demand sued for, were probably omitted. Both parties appear to have been involved in the same mistake, as to the necessity of a preceding recovery against the corporation. And the defendant therefore fully answered the defective complaint, and in doing so described what the plaintiff had omitted to state : the consideration out of'which the demand was supposed to have arisen. Upon the issue so framed the action was tried and determined in favor of the plaintiff, and a new trial ordered on the reversal of the judgment by the Court of Appeals. After so much litigation in the case, there can be no reason for believing that the defendants can be misled as to the nature or description of the claim made against them. Their protection, therefore, does not require a dismissal of the complaint at the present stage of the proceeding.

The plaintiff averred that the company was indebted unto him, on the 1st of June, 1865; and then stated that he recovered a judgment against the company on the debt, on the 27th of June, 1866, for the sum of $24,734.62, which remained wholly unpaid. This, though not a direct, was an argumentative allegation that the plaintiff had such a demand against the company on the 1st of June, 1865. Standing by itself, the cause of action was not probably sufficiently stated to be good against a demurrer. But the defendants, by their answer, alleged that the judgment was founded upon a claim for work, labor and services, done and performed by the plaintiff in procuring contracts for supplies from the government of the United States, and then proceeded to disclose facts rendering the contracts void as against public policy. The averment that the pretended debt accrued for work and labor performed by the plaintiff, supplied the substantial defect existing in the complaint; and, together with the defenses presented against its recovery, created a substantial issue of fact for trial in the action.' The answer and the complaint together, sufficiently presented the plaintiff’s case to show what his cause of action was. And if the contract shall not be shown by the defendants to be void as against public policy, or for some other valid reason, all that will be required to justify a. recovery, appears by the pleadings. The defect in the complaint was cured by the answer. Both, taken together, showed that the plaintiff claimed to have a debt against the company for the amount mentioned, and the answer stated it to be for labor and services performed by him. These facts, with those showing the defendants to have been at the time trustees who failed to make the report required from them by the statute, constituted a cause of action against them. The order dismissing the complaint was wrong, and it should be reversed, with ten dollars costs besides disbursements.

Davis, P. J., and Brady, J., concurred for reversal for the reasons stated by Daniels, J., and also on' the ground that the practice adopted in moving to dismiss the complaint was altogether irregular.

Ordered accordingly.

       3 N. Y. Stats. at Large, 735, § 12.


author: Brady, J.

text:
    In the Matter of the Application of EDWARD SCHELL, Trustee, etc.

      Reasonable compensation, to trustee — construction of words — statutory commissions not proper measure.

    When the creator of a^trust expressly provides that the trustee shall have a reasonable compensation for his services, the compensation must be determined with reference to the special circumstances of the estate and the services performed.

    The statute regulating the commissions of executors, etc., does, not apply to such a case.
    Appeal from an order made at Special Term, making an allowance to the trustee above named for his services, and confirming the report of .the referee on the accounting before him. The cestui que trust objected to the allowance of $1,500 to the trustee, in addition to an allowance of five per cent for collecting the rents of real estate, and the question presented on this appeal was, whether the allowance was unreasonable.

      Wm. C. Traphagen and Enoch L. Fancher, for the trustee.

      B. F. Dunning, for the appellant.

       In the Matter of E. Schell, etc., 53 N. Y., 263.

   Opinion by

Brady, J.

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

Order affirmed, with ten dollars costs besides disbursements.


author: Davis, P. J.

text:
    CHARLES P. HUNTINGTON and another, Appellants, v. WILLIAM B. DINSMORE, President, etc., of the Adams Express Company, Respondent.
    Receipt of express company — effect of.
    In the absence of fraud or imposition, the receipt delivered by the agent of an express company to the person shipping a package must be held to be the contract between the parties.

    It is immaterial whether or not the amount paid by the agent of the shipper was more or less than the usual charge for carriage.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.

      E. Terry, for the appellants.

      M. Da Costa, for the respondent.

       Belger v. Dinsmore, 51 N. Y., 166 ; Collender v. Dinsmore, 55 id., 200; Wetzell v. Dinsmore, 54 id., 496; Magin v. Dinsmore, Court of Appeals; Long v. N. Y. C. R. R. Co., 50 N. Y., 76; Root v. Great W. R. R. Co., 45 id., 524; Reed v. U. S. Ex. Co., 48 id., 462; Babcock v. The L. S. & M. S. R. R., 49 id., 491; Breese v. The U. S. Telegraph Co., 48 id., 132.

   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    GEORGE, the Count Joannes, Respondent, v. LOUIS J. JENNINGS and GEORGE JONES, Editor and Publisher of the “ New York Times ” Newspaper.

      Libel&emdash;truth of allegations — ba/r to suit in civil actions — Motive inmaterial — otherwise in criminal prosecutions — State Gons., art. 1, sec. 8 — Motion for a new trial—ground of, should be stated.

    It is not error to deny a motion for a new trial when no grounds for it are stated; nor will the appellate court entertain questions raised there for the first time.

      The constitutional provision (§ 8, art. 1) that, in cases of libel, “if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted,” applies only to criminal prosecutions.
    In civil actions, where the truth of the alleged libel is pleaded in justification, it may be proved as a complete bar to the suit. In such cases the motive with which the publication was made is not material.

    The rule is the same in slander cases,

    Appeal .from a judgment entered on a verdict, and from an order denying a motion for a new trial. This action was brought to recover damages of the defendants for the publication of an alleged libelous article concerning the plaintiff in the New York Times, of January 27, 1871.

      Hamilton Cole, for the appellants.

      George, the Count Joannes, respondent in person.

      Root v. King, 7 Cow., 619 ; S. C., 4 Wend., 113.

       Baum v. Clause, 5 Hill, 196.

   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

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


author: Daniels, J.

text:
    JAMES V. SCHENCK, Appellant, v. DANIEL P. INGRAHAM, Jr., and others, Respondents.

      Receiver—payment iy, of unfounded claims — confirmed iy order of the court — remedy of m'editor.

    When the evidence establishes the fact that claims, allowed and paid out of funds in the hands of a receiver by an order of the court, are fictitious and unfounded, the proper proceeding by a creditor of the fund is to apply to be made a parly to the suit in which the order was made, and to have such order vacated; for in ■ such proceeding the court has a wider discretion and greater power for relief than in an independent action depending for its success upon satisfactory proof of fraud.

      Appeal from an order denying a motion to have certain orders, directing the distribution of funds in the hands of a receiver, and discharging such receiver, set aside and vacated.
    The defendant Ingraham was appointed receiver in an action to ■ settle up certain partnership affairs, and paid, as was claimed on this application, and as the General Term, was of opinion, exorbitant fees to his counsel, and retained an improper sum for his own services, which acts were done, as the plaintiff claimed, in pursuance of a fraudulent agreement between the receiver and his counsel.

      Adam C. Ellis, for the appellant.

      John E. Burrill, for the respondent Ingraham.
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Judgment affirmed, with costs.


text:
    ANNA K. GILMAN, Appellant, v. THEOPHILUS GILMAN, Respondent.

      Discretionary power in executors — must be exercised by magority.

    Where a discretionary power is given to executors to withhold payments to certain children of the testator, it must be exercised by a majority of the executqrs.
    Appeal from an order of the surrogate of the county of New York, directing the payment of $25,000 to the respondent, as part of his residuary interest in the estate of the testator. The payment was opposed by one of the then executors: 1st. Because she thought it desirable that the payment should be deferred, the testator having given a discretionary power to his executors to withhold payment from his children, for a suitable period beyond the age of twenty-five years; 2d. That the amount would, with what the respondent had already received, exceed what- had been paid to the other legatees, which was denied by the respondent. The court modified the order by reducing the amount to $17,000.

      E. C. Benedict, for the appellant.

      Charles H. Glover, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order modified by reducing amount to $17,000, and as thus . modified affirmed, without costs to either party.


text:
    THOMAS D. PENFIELD, Guardian, etc., Respondent, v. SARAH JAMES and others, Appellants.

      Relaxation of cods—laches.

    The plaintiff’s bill of costs was adjusted by the clerk on default, after due'notice, in January, 1872. In November, 1872, the appellants noticed a motion for readjustment, which was heard at Special Term on the 12th of December, 1872, and denied. Held, that the delay in making the motion, for which no excuse was shown, was so great, that the motion was properly denied on the ground of laches.
    Appeal from an order denying a motion for a readjustment of costs.

      Edward D. James, for the appellants.

      Cyrus Lawton, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs besides disbursements.


author: Daniels, J. .

text:
    ANNA K. GILMAN, Executrix, etc., Appellant, v. WINTHROP W. GILMAN and others, Respondents.
    Appeal from an order of the Surrogate’s Court of the county of New York, directing payment of the sum of $4,000 to Charles H. Glover, $6,000 on account of a balance agreed to be due Winthrop W. Gilman, and the further sum of $20,000 on account of his distributive share in the estate of the testator.
    The testator was a man of large wealth, and by his will directed. the final residue of his estate to be divided equally among his children—surviving children — and the heirs of his three deceased daughters. The appellant and the respondent Winthrop W. Gil-man are two of the testator’s children. Since the testator’s decease, a partial distribution of the residue of the estate has been made,, under the sanction of the surrogate, to several of the residuary legatees. Among them the appellant has been a participant to a greater extent than the amount directed to be paid by the executors to Winthrop W. Gilman on account of his residuary share.
    The amount of the residue appeared to this court to have been entirely ample for the payment of the sums directed to be paid out of it, without, in any respect, endangering the payment of any other lawful claims which might be made against it. For that reason, and the further one that the amount directed to be paid "would give Winthrop W. Gilman no more than most of the other residuary legatees had received, the General Term considered that the order in that respect was entirely equitable.
    The objection made by the appellant to the order directing the payment, chiefly depended upon a clause contained in the testator’s will, declaring that Winthrop W. Gilman should have no portion of his share of the estate until he fairly accounted for and settled the amount charged on the testator’s books against him for money advanced and interest upon it. This was met by the fact, that it appeared that- a majority of the executors had settled the account with him, with the approval of the surrogate, and had allowed a balance of $6,000, mentioned in the order, in his favor, which this court considered binding on the estate.

      E. C. Benedict, for the appellant.

      Charles E. Whitehead and Charles H. Glover, for the respondents.

       Murray v. Blatchford, 1 Wend., 583, 616; Chouteau v. Suydam, 21 N. Y., 179, 184.

   Opinion by

Daniels, J. .

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

Order affirmed, with ten dollars costs and disbursements to the respondents.


text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, Respondent, v. GEORGE S. MILLER, Appellant.

      Substitution of name of new pa/rty plaintiff in proceedings already had in an action— when not authorised.

    Appeal from an order amending the summons, complaint, pleadings and proceedings, by substituting as plaintiff the mayor, aider-men and commonalty of the city of N"ew York, in place of the board of supervisors of the county of NTew York.
    The General Term was of opinion that, by providing for a change in the name of the plaintiff, in the summons, pleadings and proceedings, more was done than either the provisions of the Code under which the thotion was made, or chapter 304 of the Laws of 1874, creating the newly consolidated corporate body, permitted. That the order should have been limited to a substitution of the consolidated city and county for the board of supervisors, and the future prosecution and continuance of the action in the name of the mayor, aldermen and commonalty of the city of New York. And for the reasons given in the action against Tweed, it should be so far modified as to produce those results; and as thus modified, affirmed.

      David Dudley Field and Elihu Root, for the appellant.

      Wheeler S. Peckham, for the respondent.

       See 3 Hun, 682.

   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed as modified.


text:
    JACOB F. OAKLEY, as Assignee, etc., Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.
    Appeal from a judgment entered upon an order of the court at Circuit, dismissing the complaint. The action was brought by plaintiff to recover for services rendered to the defendant, which the court was of opinion were included in his duties as clerk to the board of aldermen, in which position he received a fixed salary. The case was decided upon the authority of the cases of Collins v. The Mayor, etc. (3 Hun, 680), and Cowan v. The Mayor, etc. (id., 632). The court also citing Dillon on Municipal Corporations (§§ 172, 173, vol. 1, p. 290 [2d ed.] ) ; Heslep v. Sacramento (2 Cal., 280); Hatch v. Mann (15 Wend., 44); Palmer v. The Mayor (2 Sandf., 318); People ex rel. Phœnix v. The Supervisors of New York (1 Hill, 362); Mallory v. Supervisors of Cortland Co. (2 Cow., 531); Laws of 1857 (ch. 446, § 46).

      J. H. Dukes, for the appellant.

      D. J. Dean, for the respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


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

text:
    ELIAS KAHN, Appellant, v. ADAM NORRIE, Impleaded, etc., Respondent.

      Disbursements — Stenographer/''s minutes.

    Appeal from an order made at Special Term, directing the clerk to tax the fees of the stenographer for a copy of his minutes, as a necessary disbursement in favor of respondent.
    The court, after an examination of the affidavits, concluded that the respondent, not having ordered the minutes from day to day, and not having appealed,, and there not appearing in the facts anything making the copy of the minutes necessary in his proceedings in the action, reversed the order, with ten dollars costs, besides disbursements, and directed that the motion below be denied, with ten dollars costs, such disbursements to be adjusted by the clerk, and, with the costs allowed, to be set off against those of defendant, Nome, already adjusted. The court did not consider the question whether, in any event, it would be a proper disbursement, under section 256 of the Code.

      Elias J. Beach, for the appellant.

      Knox & Mason, for the respondent.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

Brady, J.,

concurred, “ inasmuch as the minutes do not appear to have been ordered from day to day during the trial, and because the defendant, Norrie, having succeeded, the notes were not then necessary, the plaintiff not having appealed.”


text:
    JOSEPH B. MANTON, Appellant, v. JOHN F. CABOT AND OTHERS, RESPONDENTS.
    Appeal from a judgment in favor of the defendants, entered on a nonsuit directed at the Circuit.
    The action was brought to recover moneys agreed to be paid to the plaintiff for negotiating a contract for the defendants. The only question in the case was, whether the plaintiff was entitled to the money as soon as the contract was made, or only upon payment to the defendant of the money due thereunder. The court held the latter to be the correct construction of the contract; and, as the money had not been received by the defendants, held that the plaintiff was properly nonsuited.

      John S. Washburn, for the appellant.

      Wm. W. MacFarland, for the respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    THE BOARD OF COMMISSIONERS OF PILOTS, Appellant, v. PAUL N. SPOFFORD and others, Executors, etc., Respondents.

      Bxt/ra allowance—Laches.

    Reargument of an appeal from an order of Special Term, granting an additional allowance.

    Although there are questions in a cause making it a difficult and extraordinary one within the meaning of the Code, yet if all these questions are decided in favor of the plaintiff, if the defendant succeeds in the case an additional allowance should not he granted to him for having contested questions upon which the plaintiff has succeeded. When defendants had adjusted their costs on appeal, the General Term disallowed certain costs, and on further appeal the Court of Appeals held. that they had been properly allowed ; no extra allowance having'been asked for or granted, it was held, that the defendants could not abandon the bill of costs thus adjusted and served, and commence de novo for the purpose of seeking an allowance.

      Wm. Allen Butler, for the appellant.

      William G. Cooke, for the respondents.

       Reported before, 3 Hun, 52,57.

   Opinion by

Davis, P. J.

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

Motion denied, with ten dollars costs.


text:
    ELIZABETH M. MOFFETT, Respondent, v. IRA B. TUTHILL, Impleaded, etc., Appellant.
    Appeal from an order at Special Term, continuing an injunction restraining the defendant Tuthill from proceeding with an action to foreclose a mortgage on plaintiff’s land. It was alleged in the complaint, in the present action, that after the mortgage was given, for the foreclosure of which the action was brought by the defendant Tuthill, an agreement had been entered into by which certain property was to be sold by the defendant Tuthill, and one Dean (not a party to the foreclosure suit), and the proceeds applied on the mortgage held by Tuthill. It further alleged that sufficient-property had been sold to pay said mortgage, and asked for an accounting as to the proceeds of the personal property, and on application at Special Term, an injunction order was granted staying further proceedings in the foreclosure suit. The court at General Term was of opinion that the right of the suitor to the injunction in such a case was no longer an open question, and whether it should be granted or not rested in the discretion of the court at Special Term.  That the defendant Dean, not being a party to the foreclosure suit, could not be held responsible in that suit for any abuse of his trust; and that an accounting being evidently necessary in this case to settle the rights of the parties, it should be had in an action in which Dean was a party.

      Miller & Tuthill, for the appellant.

      Skinner & Wood, for the respondent.

      Erie Railway Company v. Ramsey, 45 N. Y., 637.

   Opinion by

Brady, J.

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

Order affirmed with ten dollars costs and disbursements.


text:
    WILLIAM REDMOND and another, Respondents, v. WILLIAM HOGE and others, Appellants.
    Motion for a reargument.
    The decision of the General Term in this case is reported in 10 Supreme Court Reports (3 Hun), 171.
    The motion was denied on the ground that the points urged upon the court were covered on the former argument, and that, under the peculiar circumstances of the case, a modification of the order might operate prejudicially to the relief sought by the complaint.

      John E. Burrill, for the motion.

      Henry Nicoll, opposed.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

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

Motion denied, with ten dollars costs.


text:
    JACOB VOORHIS, Jr., Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    Appeal from a judgment in favor of the plaintiff against the defendant,- entered on the report of a referee, for services in regulating and grading First avenue.
    The court was of opinion that that portion of the work done, for which this recovery was had, was not included in the work which, under the terms of the contract entered into between the parties, the plaintiff, was to perform, the excavation not being within the lines of the street; and that if it was incidental to such work pro-Tided for in the contract, that instrument expressly provided that it was to be done without additional compensation.

      Richard O’Gorman, for the appellant.

      John E. Develin, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

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


text:
    JOHN A. GRAY, Respondent, v. SAMUEL W. GREEN and others, Appellants.

      Injunction.

    Appeal from an order appointing a receiver of a note of $19,500, and prohibiting and restraining the defendants, their agents, etc., from assigning, transferring, incumbering or disposing of certain "personal property, on which plaintiff claimed to have a lien, to secure the payment of moneys claimed to be owing to him.
    The court, after considering the evidence, was of opinion that it did not justify the granting of the injunction, and reversed the order appealed from, with ten dollars costs, besides disbursements, and denied the motion, with ten dollars costs.

      Dickerson & Beaman, for the appellants.

      John E. Burrill, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs besides disbursements, and motion denied with ten dollars costs.


text:
    EDWARD MATTHEWS, Respondent, v. BENEDICT MEYBERG and others, Appellants.
    Appeal from a judgment in favor of plaintiff, entered on a verdict.
    The action was brought to recover rent alleged to be due the plaintiff from the defendants. The defendants set up in their answer an eviction from the premises, and damage to their goods by water and exposure, from acts of plaintiff in making certain changes in the premises. The court was of opinion, as it was expressly provided in the lease that such changes and alterations in the premises might be made, and there was no negligence shown in making the same, that the defense had failed, and that judgment was properly entered for the plaintiff. '■

      Lewis Sanders, for the appellants.

      E. Delafield Smith, for the respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


text:
    ELIJAH H. PURDY and others, Respondents, v. LOUIS SCHLESINGER and others, Appellants.
    Appeal from an order appointing a receiver of the proceeds of a sale, had under a chattel mortgage, of property fraudulently obtained from the plaintiffs in this action by the mortgagor, and alleged in this action to have been mortgaged for the purpose of cheating and defrauding these plaintiffs out of their claim for the purchase-price thereof. After a review of the facts in the case, the court was of the opinion that there was sufficient evidence of fraud in the .giving of the mortgage to justify the appointment of the receiver, and affirmed the order.

      T. M. Tyng, for the appellants.

      Eugene F. Daly, for the respondents.
   Opinion by

Daniels, J.

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

Order affirmed, with ten dollars costs besides disbursements.


text:
    STEPHEN KROM, Respondent, v. JOHN J. LEVY, Appellant.
    Motion for a reargument, and for leave to appeal to the Court of Appeals. The court was of opinion that the case was properly decided on the former argument, and that no principle was involved which the public interests required should be examined by the Court of Appeals.
    N. B. Hoxsie, for the appellant.

      Coles Morris, for the respondent.

       See 1 Hun, 171.

   Opinion by

Daniels, J.

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

Both applications denied, with ten dollars costs.


author: Barnard, P. J.:

text:
    CORNELIUS DU BOIS, Jr., as Trustee, etc., Appellant, v. WILLIAM C. BARKER and others, Respondents.

      Trust estate — when vests in trustee — acts of te'ustee—when cestui que trust bound by.

    In 1851, W. 0. Barker and Beulah his wife conveyed certain real estate in Brooklyn to one Townsend, who, in 1859, reconveyed the same to the said Beulah. In 1861 Beulah died, leaving a will, by which she devised the property to the said W. 0. Barker in trust for her two children, authorizing him to sell and dispose of the same. The deed from Townsend to her was not recorded, nor was the will proved. In 1867 Barker erased from the deed the name of his wife, inserted that of Schwerin, his brother-in-law, and then recorded the deed as thus altered. Portions of the property were subsequently sold and mortgaged to various persons, the conveyances being executed by Schwerin, although Barker received and used all the money received therefor.
    In 1873 the will was proved, and the plaintiff appointed trustee thereunder. In this action brought by him against the various purchasers and mortgagees to recover the property, held (1), that the estate vested in the trustee by force of the will without probate thereof; (3), that the acts of Barker in taking possession of, renting and improving the estate, constituted an acceptance of the trust; (3), that though his acts were irregular or even criminal, yet they were an execution of the power of sale contained in the will, and by virtue of them a good title vested in the purchasers and mortgagees.
    Appeal from a judgment .in favor of the respondents, entered upon the trial of this action at Special Term.

      The defendant William 0. Barker was appointed trustee under the provisions of a last will and testament left by his wife, which will contained among others the following provisions: “I give, devise and bequeath all my estate, both real and personal, whatsoever and wheresoever situate, of which I may be seized and possessed of at the time of my decease, unto my husband, the said William 0. Barker, his heirs, executors, administrators and assigns forever; in trust, nevertheless, to hold, sell, or invest the same as he, my said husband, may think proper, and apply the income thereof, and as much of the principal as may be necessary for the maintenance and education of my two children, Rebecca and Myra, until they shall respectively arrive at the age of twenty-one years, and when they shall respectively arrive at the age of twenty-one years, then to divide the same equally between them share and share alike.
    “I name and appoint my said husband executor of this my last will and testament, and guardian of the persons and estates of my two children aforesaid, as well as trustee to support all the trusts herein created.
    “ I also authorize and empower him to sell and dispose of my real estate, or any part of it, at such time as he may elect, by public or private sale, and by any deed or deeds of conveyance or assignment, to grant, convey and assign the same in fee simple, freed and discharged of and from all and every the trusts hereinbefore expressed, limited, and declared of and concerning the same, and without liability on the part of any purchaser or purchasers in respect to the application of the purchase-money and the proceeds of any such sale or sales, again to invest or apply the same in trust for the same uses and purposes, with the same powers, and subject to the same limitations as are hereinbefore expressed, limited, and set forth.”
    The other facts in the case are stated in the opinion of the court.

      C. & N. D. Lawton, for the appellant.
    The title to said property being in Beulah T. Barker, at her death, she leaving minor children her heirs at law, such property could not be disposed of, incumbered, or in any wise or way affected; nor could any part thereof, except by an order of a court in a proceeding to which they were parties. (3 R. S. [5th ed.], part 3, chap. 1, art. 7; Tyler on Infancy and Coverture, 296; Rogers v. Dill, 6 Hill, 415; Onderdonk, v. Mott, 34 Barb., 106 ; Baker v. Lorillard, 4 N. Y., 266 ; Perry on Trusts, 610.) Or by the official acts of a duly qualified trustee under her will, acting as such trustee. (Fisher v. Hubbell, 65 Barb., 75, 90; N. Y. Assn. v. Beekman, 21 id., 565.) On the death of Beulah T. Barker, leaving a will of her real estate, appointing trusts in regard to the same, the equitable title thereto vested in the eestui que trust, while the limited legal title, restricted to an extent which only admitted of the carrying out the purposes of the trust under such will, vested in the- trustee, dependent upon - the proof of the will and the acceptance of the trusteeship under it, and until both of which took place such trustee took no estate in such lands which could be assigned, conveyed or mortgaged, so as to pass any interest therein under a power of sale in such will. (De Peyster v. Glendinning, 8 Paige, 310 ; King v. Donnelly, 5 id., 46; Trask v. Donohue, 1 Aiken [Vt.], 370; Roseboom v. Mosher, 2 Denio, 70, 69; Hill on Trustees [Am. ed., 1854], 239 [* paging]; Sawyer’s Appeal, 16 N. H., 459 ; Williams v. Cushing, 34 Me., 372.) Upon the death of Beulah T. Barker, William 0. Barker took possession of the estate as father and guardian in socage of the children, but this gave him no right or title to the property or power to deal with it by sale or incumbrance, but only to collect the rents and profits for the benefit of .such children; and the fact of such possession could in no manner draw after it or clothe him with any right as trustee, or give him any power to deal with the «property, except as above stated as guardian, and such possession gave no notice to the world of any further title or right to deal with such property. (Sylvester v. Ralston, 31 Barb., 286; Jackson v. De Walts, 7 Johns., 157; Byrne v. Van Hoesen, 5 id., 66 ; Genet v. Talmadge, 1 Johns. Ch., 561; White v. Parker, 8 Barb., 48; Torrey v. Black, 65 id., 414.) The non-production and the failure to apply for the probate of the will was a virtual refusal, on the part of William O. Barker, to act as trustee. (In re Robinson, 37 N. Y., 261; Roseboom v. Mosher, 2 Denio, 70; Burritt v. Silliman, 13 N. Y., 96.) The mere taking possession of the property in question cannot create or fix upon him the presumption that he accepted the trust, for even „if he had immediately on the death of his wife executed a written renunciation of his office as trustee, he would, nevertheless, have been entitled to the possession of the property as guardian in socage of his children, until the court, upon whom the trust devolved by his non-acceptance, could appoint another trustee of the estate. (Sylvester v. Ralston, 31 Barb., 286; Jackson v. De Walts, 7 Johns., 157; Byrne v. Van Hoesen, 5 id., 66.) Such acts in any event would be void as in contravention of the trust. (3 R. S. [5th ed.], chap. 1, part 2, title 2, § 84, p. 22; Cruger v. Jones, 18 Barb., 467; Lahens v. Dupasseur, 56 id., 266; Powers v. Bergen, 6 N. Y., 360; Briggs v. Davis, 20 id., 15; Perry on Trusts, 309.) The doctrine of estoppel cannot be invoked in this case against infants, the cestuis gue trust, although there were acts done by William C. Barker which would estop him individually in regard to the property in question. (Brown v. McCune, 5 Sandf., 224; Ackley v. Dygert, 33 Barb., 177, 193.)

      Sidney V. Lowell, for the respondent Ramsey.
    The will vested the legal title and estate in Barker, as trustee, he taking the same subject only to account for proceeds to the cestuis gue trust. (1 R. S., 729, §§ 55, 60; King v. Donnelly, 5 Paige, 46 ; Urch v. Walker, 3 M. & C., 710.) The facts show an indisputable practical acceptance of the title or trust by Barker. (Hill on Trustees [Wharton’s], vol. 1, p. 215, and cases cited; Conyningham v. Con., 1 Ves., 522; Montfort v. Cardagan, 17 id., 487; James v. Frearson, 1 N. C. C., 375-377; Re Uniatke, 1 Jones & La., 1; Re Needham, id., 32; Lewin on Trusts, 230-232; Chaplin v. Givens, 1 Rice Eq., 132, 154; 2 Hill on Trustees, 214; Thompson v. Leech, 2 Ventr., 198; Witt v. Franklin, 1 Bin., 502; Eyrick v. Hetrick, 13 Penn., 494.) Barker’s title as trustee would vest directly upon testator’s death. (Williams on Executors, vol. 1, p. 255; Jarmin on Wills [Perkins], vol. 1, p. 219 and note.) He derived his estate through the will; the same was not deferred until probate or otherwise. (Williams on Executors, p. 256 ; Dayton on Surrogates, 253; Dwyer, p. 367 a ; Rex v. Stone, 6 T. R., 298; Fenton v. Clegg, 9 Ex., 680.) Plaintiff is estopped by proceedings of his predecessor. (Coke Litt., 352 a; Erroy v. Nicholas, 2 Eq. Cases Abr., 488; Zouch v. Abbot, 3 Burr., 1802; 3 Sug. V. & P. [10th ed.], 428 ; Watts v.
      Cresswell, 9 Vin. Abr., 415; 1 R. S., 730, § 66; Heroy v. Kerr, 2 Abb. Ct. Ap. Dec., 359.)

      R. Ingraham, Geo. Ingraham and John H. Knaebel, for the respondents Morton, Whitson and Valentine.

      Wm. S. Cogswell, for the respondent Merrill.

      D. P. Barnard, for other respondents.
   Barnard, P. J.:

William 0. Barker, prior to the 7th March, 1857, was the owner of certain lots of land situate in Brooklyn, particularly described in the pleadings. On that day he, by a full covenant warranty deed, transferred the same to Samuel Townsend, of the city of Philadelphia. This Mr. .Townsend was the father of Barker’s then wife. She joined in the deed. The premises were subject to two mortgages, one of $1,200 and one of $4,000. The payment of these mortgages was assumed by Townsend in the deed. On the 18th January, 1859, Samuel Townsend conveyed the same premises to Beulah T. Barker (Barker’s wife), subject to a mortgage of $1,200. Barker had, between the date of the Townsend deed and the date of the 'deed by Townsend to Mrs. Barker, paid the $4,000 mortgage. The deed by Barker to Townsend was given immediately prior to the entry of a judgment of over $3,000, against Barker, in favor of a Mr. Wolson. On the 11th March, 1861, Beulah T. Barker made her will, by which she devised the property to William C. Barker, in trust for her two children. The will gave full dominion over the property, including power of sale, and providing that the purchase should be “ without liability with respect to the application of the purchase-money.”

On the 28th of March, 1861, she died. The deed to her from her father, and the will by her, went upon her death into the possession of her husband, and both were kept a profound secret' for many years — until the month of May, 1873. On the 9th January, 1867, William O. Barker put upon record the deed from Townsend to his (Barker’s) wife, having erased, about that time, the name of Beulah T. Barker, the grantee, and in its place inserted the name of Edward Schwerin, a person who had married his (Barker’s) sister. Barker noted at the end of the deed, and before the witnesses’ names, the fact that this erasure was made before the execution of the deed. Barker, a few days thereafter, agrees to sell two of the lots to Messrs. Harsey & Parkinson, and gives a deed therefor, executed by Schwerin on the 1st of April, 1867. On the 19th March, 1868, Schwerin conveys all the remaining property to Ellen Barker, the second wife of William C. Barker, and a sister of the plaintiff. William 0. Barker and Ellen, his wife, subsequently executed Various mortgages upon the property for the full face thereof, and conveyed two of the lots to Rachel W. Townsend, who was the wife of -the Samuel Townsend who gave the deed to his daughter Beulah, and the mother of William C. Barker.

On the 12th of May, 1873, Beulah T. Barker’s will was proven, and the plaintiff was appointed administrator with the will annexed by the surrogate of Kings county, and thereafter trustee, by this court, at Special Term.

The children of Beulah T. Barker are still minors. Schwerin received nothing for his conveyance. Barker received the consideration, as well from the direct sale by Schwerin as before the mortgages given by his wife upon the title she acquired from Schwerin. There is no evidence to warrant the finding that the deed given by Barker to Townsend was a mortgage. It was a plain case of a conveyance given to hinder, delay and defraud creditors. The title passed to Townsend as between the parties. By virtue of Townsend’s deed to his daughter, she died having the fee of the property; and by her will it passed to William C. Barker in trust for her two children. Thus far the case seems plain.

If the trustee had received his wife’s deed, and proven the will, and executed the trust openly under it, he would have done his duty; but this he failed to do. He suppressed the will and altered the deed, and recorded it as altered, so that the record was apparently right. He perfected titles in this way, and thus the question presented'arises, where the loss is to fall — upon the children, the eestuis que trust, or upon the innocent purchaser and mortgagees who have acted upon the appearances of title which William 0. Barker the trustee made. The trust created by the will was a valid express trust under our statute. The trustee took the whole estate subject only to the execution of the trust, The estate devolved, by force of the will, without probate.

The evidence warrants the finding that Barker accepted the trust and executed it for many years. He took possession of the deed and will; took possession of, and rented and improved the property, and applied proceeds to the support and maintenance of the infants. . Being the legal owner, and intending to make a good title, and for a good consideration, which he received, he may have proceeded irregularly, or éven criminally. He executed the power of. sale in the will. He made an apparently legal title, and received pay for it. I discover no evidence to warrant the finding that Edward Dubois was not a bona fide mortgagee, nor that Rachel W. Townsend was not a bona fide mortgagee and purchaser. They are proven to be related; Edward is a brother to Barker’s wife, and Rachel W. Townsend is Barker’s mother. This is not sufficient to destroy their claims without-other proof. The judgment should be modified so that all transfers and mortgages given under Schwerin deed should be declared legal, the title to property untransferred by deed by Barker’s first wife, be declared vested in plaintiff as trustee,' subject to mortgages thereon; Barker to account as trustee before--, referee, and be declared to pay any balance he may owe on such accounting.

Present — Barnard, P. J., and Tappen, J.

Judgment modified in accordance with opinion, and as modified affirmed, with costs.

      Chap. 2, part 2, title 2, R. S., § 55, sub. 3.

       Sec. 60.


author: Barnard, P. J.: Tappen, J.

text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF KINGS, Respondent, v. ANTHONY WALTER, Appellant.
    Sheriff— statute of limitations— section 2, cha/pter 733 of 1871.
    The statute of limitations (one year) for acts done hy a sheriff in his official capacity, and in virtue of his office, or by the omission of an official duty, is not applicable to a cause of action against the sheriff for procuring payment, by means of a sworn bill and false vouchers, for board of fictitious persons who were never confined in the county jail.
    Appeal from an order sustaining a demurrer to the defendant’s answer, which alleged that the cause of action did not accrue within one year before the commencement of the action.
    The action was brought to recover $24,122.25, alleged to have been obtained from the county by the sheriff thereof, by means of fraudulent accounts and vouchers for the board and confinement of fictitious persons in the county jail.

      N. H. Clement, for the appellant.
    Section 2, chapter 733, Laws of 1871, applies when recourse can be had to the official bond. (Cumming v. Brown, 43 N. Y., 514.) Its object was to relieve the sheriff’s sureties. (Morris v. Van Voast, 19 Wend., 283; see particularly the revisers’ notes referred to in the above case; Dennison v. Plumb, 18 Barb., 99.) The question then arises on this demurrer: In case the plaintiff recovers judgment against Walter, could recourse be had to the official bond % The form of the bond given by sheriffs is set forth in 2 Revised Statutes, 476, section 1. The bond is given against fraud, deceit or oppression, in those words. A sheriff’s bond has been held liable for moneys collected for militia fines, and not paid over; for. embezzlement of county moneys. (People v. Brush, 6 Wend., 454.) The moneys claimed are the excess of bills alleged to be fraudulent. The portion of bills paid which are admitted to be correct were paid to the sheriff virtute officii. They are paid to the sheriff as such by virtue of the statute, and not to him individually. “Acts done virtute officii are where they are within the authority of the officer, but in doing which he exercises that authority improperly or abuses the confidence which the law reposes in him ; while acts done colore ,officii are where they are of such a nature that his office gives him no authority to do them.” (The People v. Schuyler, 4 Comst., 187; Seely v. Birdsall, 15 Johns., 267.) The case of Elliott v. Cronk’s Administrators (13 Wend., 35), has no application to this suit. That decision was on the express ground that the sheriff had done no affirmative act. Another test: Will the defendant, if successful in this case, be entitled to double costs ? (2 R. S., 617, § 24.) If these acts charged are acts virtute officii, he would be. (Burhans’ Executors v. Blanchard, 1 Denio, 626.) A justice, sued for malicious prosecution: held, that he was sued for an act done by virtue of his office. (Row v. Sherwood, 6 Johns., 107.) If a malicious act is committed vvrtwte officiÁ, is not a fraudulent one also committed by virtue of office %

      Winchester Britton, for the respondent.
    This statute was passed with a view of fixing a limit of time to the liability of sheriffs’ official bail, and has been construed to include acts of the sheriff for which such bail are liable, and such acts only. (Dennison v. Plumb, 18 Barb., 89-98; Cumming v. Brown, 43 N. Y., 514; Parton v. Williams, 3 B. & A., 330; Morris v. Van Voast, 19 Wend., 283.) The bail are liable for acts virtute officii, not colore officii. (18 Barb., 89, ante ; Alcock v. Andrews, 2 Espinasse, 542, note; Golden v. Elphinck, 4 Exch., 445; 3 Fisher’s Digest, 5494.) Where levy is made without process, it is colore officii, not virtute officii, which former is defined to be when his office gives him no authority to do an act. (People v. Schuyler, 4 Comst., 180 ; Seeley v. Birdsall, 15 Johns., 267.) Vvrtwte officii is defined to be when the officer is acting under color of his office, intending in good faith to perform a proper official act. (Straight v. Gee, 2 Starkie, 445.) The words of the bond cannot be extended beyond nonfeasance or misfeasance in respect to acts which by law he is required to perform as sheriff. (Ex parte Reed, 4 Hill, 573 ; approved, 4 Comst., 179.) Where the duty exists, and it is neglected or performed in an improper manner, the sureties are liable, otherwise not. (4 Comst., 180; 1 R. S., 876, § 162; 1 Crocker on Sheriffs, § 884; Governor v. Hancock, 2 Ala., 728, cited 4 Comst, 177.) In short, the statute under discussion applies to such acts of the sheriff as are performed in the discharge of his duty as a public officer, or to the omission of some act required of him by his duty as such officer.
   Barnard, P. J.:

I do not think that the liability sought to be enforced in this action, is the result of an act done by the defendant as sheriff in his official capacity, and by virtue of his office. The defendant was sheriff, and, as such, had the official duty to board the prisoners in the jail; but the allegation is,- that the defendant, by means of a sworn bill and false vouchers, procured payment for boarding fictitious prisoners, “ persons who were never committed to, received, or confined in, boarded at, or discharged from said jail.” It is a fraud of the gravest description, and one which procured a large sum of money, $24,122.25, from the public treasury. The short statute of limitation (one year) for acts honestly done by sheriffs by virtue of their office, could not have been intended to cover up such a case. Order affirmed, with costs.

Tappen, J.

(dissenting):

The defendant, while sheriff of Kings county, having the custody and being the keeper of the common jail, presented from time to time his accounts for the board of persons confined therein, including his fees for receiving and discharging such persons, to the supervisors, who audited such accounts; and the defendant was paid the amounts thereof. It is now claimed by the plaintiffs, that such accounts were fraudulently overstated by the defendant, and that a large sum was charged for persons who were never so committed, boarded or discharged, and this action is brought to recover back the amount of such overcharges, on the ground that the defendant’s accounts were fraudulent.

The defendant’s answer admits the auditing of his accounts, and that he was paid the amounts thereof, and denies the other allegations. He further alleged that the catise of action did not accrue within one year before the commencement of the action. To this latter defense the plaintiffs demurred and had judgment in their favor at the Special Term, and the defendant brings this appeal therefrom.

By chapter 733 of the Laws of 1871, section 2, it is provided that “ no action shall be brought against any sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office * * * unless the same be commenced within one year from the time when the cause of action shall have accrued.” It will be observed that this was an official account of the defendant, as sheriff, against the county. The duties of sheriff are largely performed by deputy, and by the assistance of others, and this is particularly the case in a large and populous county. His liability for any fraudulent charges against the county, would be good ground of action against him during any period of time not barred by statute. But the intent and purpose of the statute limiting the time for bringing suit for one year, were to enable both the sheriff and the sureties on his official bond to determine their liabilities within that time.

This action was brought after the time so limited. It being the sheriff’s duty to receive and discharge from, and to maintain at the jail all persons committed thereto, the accounts which are now questioned were for services arising out of his official duty.

I am of opinion that the defendant, in presenting his accounts and vouchers to the plaintiffs, and in having them audited, did so as sheriff, and not as a private individual or under color of office, and hence that the statutory limitation applies to this action. In Mow v. Sherwood, a justice of the peace being sued for malicious prosecution, it was held that he was sued for an act done by virtue of his office.

To prevent the statutory bar from being held applicable, it will be necessary also to hold that the defendant’s accounts, so far as they are correct, were presented by virtue of his office, and so far as they were excessive, that they were not by virtue of his office, but under color of office. I do not think the distinction can be maintained. The statute of limitations is a statute of repose, and in" the case of public officers, effect is to be given to it for such purpose.

The judgment of the Special Term sustaining plaintiff’s demurrer, should be reversed.

Present — Barnard, P. J., Tapper and Gilbert, JJ.

Order affirmed, with costs.

       Cumming v. Brown, 48 N. Y., 514; Morris v. Van Voast, 19 Wend., 283.

       6 Johns., 109.


text:
    GEORGE C. GLACIUS and another, Respondents, v. BESSIE BLACK, Appellant.

      Mechanic^ lien law—pei'sonal judgment under.

    When, during the pendency of an action, brought for the foreclosure of a mechanics’ lien, the lien expires by lapse of time, a personal judgment may be recovered by the claimant.
    Appeal from a judgment in favor of the claimants (plaintiffs), and against the defendant (owner), and from an order denying a motion made on the judge’s minutes for a new trial, and from an order denying a motion to set aside such judgment, in an action brought for the foreclosure of a mechanics’ lien, under chapter 402, of the Laws of 1854. This cause has been once tried before a referee who reported in favor of the claimants. The judgment entered upon such report was affirmed by the General Term, and reversed in the Court of Appeals (50 N. Y., 145), and a new trial ordered. During the pendency of the suit, the lien expired, and a personal judgment was entered against the defendant on the last trial.

      George A. Black, for the appellant.
    _Ernest Sail, for the respondents.
   Barnard, P. J.:

This action was originally brought to enforce a lien. It "has been once tried before a referee, and the plaintiffs recovered a judgment. This judgment was reversed by the Court of Appeals. The second trial was before a jury. Eo lien is now demanded.

The jury rendered a verdict for the plaintiffs, on which a personal judgment has been entered against the defendant. The defendant appeals. If the validity of the lien law could be raised on this appeal, it would be useless to argue the question, in view of the many adjudications of the Court of Appeals, upholding and enforcing the provisions of that law.

The present judgment is personal; and that such a judgment is permitted in this action, is decided in this case by the Court of Appeals. I discover no error committed on the trial. The question whether the contract had been substantially performed, was one of fact for the jury. The evidence was very conflicting. The judge could neither nonsuit nor direct a verdict. He instructed the jury according to the law of this case, as decided by the Court of Appeals. The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.

Judgment and order denying new trial affirmed, with costs.

       Glacius v. Black, 50 N. Y., 145


text:
    In the Matter of the REPORT OF THE COMMISSIONERS OF ASSESSMENT for Grading, Paving, etc., SACKETT STREET, in the City of Brooklyn.
    The power of the legislature to apportion the assessment of taxes, is as broad as the power of taxation itself.
    Appeal from an order confirming a report of commissioners appointed to make an assessment for certain local improvements. The improvement for which said assessment was laid, consisted of the grading and paving of Degraw and Douglass streets, from New York avenue easterly to the city line, a distance of about eight thousand feet; and of grading, paving, ornamenting, and otherwise improving Sackett street, from Washington avenue to the city line, a distance of about twelve thousand feet. The portion of the above mentioned streets improved as above stated, are situated in an unimproved portion of the city, which is unoccupied for the ordinary purposes of a city. On some lots included in the district of assessment fixed for said improvement, no assessment is laid, and the assessment laid on some of the lots of the appellants, situated in said district, is more than the sum at which said lots arc valued or assesséd for the purpose of annual taxation. The improvement referred to above was commenced under the authority of an act of the legislature, entitled “An act to widen portions of Sackett, Douglass and President streets, and otherwise to alter the commissioners’ map of the city of Brooklyn” (chapter 631 of the Laws of 1868), passed May 6, 1868, and continued under the acts amendatory thereof and supplementary thereto, to wit: chapter 710 of Laws of 1872, chapter 592 of Laws of 1873, and chapter 588 of Laws of 1874. And the said improvement was completed after the passage of the last above mentioned act.

      Winchester Britton and Benjamin F. Tracy, for the appellants.

      Wm. C. De Witt, for the respondent.
   Barnard, P. J.:

The objections taken, upon this appeal, to the title of the acts under which the improvements in question were made, have been passed upon by this court in The People ex rel. McCann v. Schroeder.

The power conferred by the act upon the park commissioners to make the district of assessment, is unobjectionable. There being no constitutional prohibition, the legislature may create a district for that special purpose, or they may tax a class of lands or persons benefited, to be designated by the public agents appointed for that purpose, without reference to town, county or district lines.” It is no new exercise of the power. In some cases, the common council, by law’, fix the district of assessment; in others, the assessors levy the assessment upon property they deem benefited. The power of apportionment of taxation is as unlimited as the power of taxation itself.

It appears by the papers that, in some instances, the benefit received by the lands assessed, by reason of the improvement, is greater than the assessed value for purposes of annual taxation. This is urged as an objection to the report. It may well happen that lands of small value may be much increased by an improve•ment as expensive and attractive as this appears to be. In the absence of evidence, we cannot intend fraud or partiality from the fact alone.

Order affirmed, with costs.

Present — Barnard, P. J., and Tappen, J.

Order affirmed, with costs.

       The People v. Mayor of Brooklyn, 4 N. Y., 419.


author: Tappen, J.:

text:
    THE PEOPLE ex rel. OBADIAH WELLS, Appellant, v. THE BOARD OF AUDIT OF THE TOWN OF HEMPSTEAD, Respondent.

      Town auditors—mandamus to—when allowed.

    Where, after the adjournment of a board of town auditors, an order is granted ' requiring them to show cause why a mandamus should not be allowed to compel them to allow a claim of the relator, the adjournment will prevent the enforcement of the peremptory writ against the members thereof ; but where such, writ will lie, it may issue to be enforced at the next lawful meeting of the board.
    Appeal from an order made at the Sjiecial Term denying an application for a mandamus to compel the defendant to audit a bill of the relator for money paid out as counsel fees in an action brought for the benefit of the town of Hempstead.

      A. N. Weller, for the appellant.

      John J. Armstrong, for the respondent.
   Tappen, J.:

A special town meeting was held in the town of Hempstead, on the 3d of July, 1814, after due notice, at which a resolution was adopted, by ballot, directing suits to be commenced against certain persons, to recover certain common lands of the town. The sum of $400 was appropriated for the expense of the suits, and the relator, Obadiah Wells, was, by the same meeting, appointed attorney to institute the same. The suits were commenced, and a bill rendered by him against the town for $255, for the money claimed to have been expended by the relator for counsel fees and other expenses in such suits. The board of town auditors, at a regular meeting, on the 28th November, 1814, had this bill' before them, and passed a resolution rejecting it. The relator seeks, by mandamus, to compel the allowance of the claim. The Special Term denied his motion for the writ, and he now appeals to the General Term. The respondents say that the board of auditors had closed their hearings of accounts against the town, and had delivered their certificate thereof to the supervisor, to be laid before the board of supervisors, and that this was done before the relator’s claim was presented. Also, that the order of the Special Term requiring the respondents to show cause, was not granted until after the board of auditors had adjourned sine die.

We think the call for the town meeting sufficiently specific, and the proceedings at such meeting regular, and in accordance with the statute. Instead of intrusting the prosecution of the action to the supervisor, the town devolved that dirty upon the relator. In .making an appropriation it expressly agreed to pay to the relator his reasonable expenses in 'the performance of that duty. That a mandamus in cases of this kind is the appropriate remedy is held in Bell v. Town of Esopus, and in Brady v. Supervisors, The proceedings at the meeting were within the rule in Cornell v. Town of Guilford; and that the hours of meeting were not irregular, see 5 New York, page 22.

That the board of audit had adjourned formally and without naming a day for reassembling, is a reason why the peremptory writ cannot now be enforced against the members thereof; but where the writ will lie it may issue, to be enforced at the next lawful meeting of the board.

The order of the Special Term should be reversed, with ten dollars costs, and the peremptory writ allowed, with ten dollars costs.

Present — Barnard, P. J., Tappen and Gilbert, JJ.

Ordered accordingly.

      49 Barb., 506.

       2 Sandf.; affirmed 6 Seld., 260.

         1 Denio, 510.

       The People v. Board of Auditors of Town of Westford, 53 Barb., 555; affd. 38 How., 23.


text:
    THEODORE B. GATES, Appellant, v. AMOS F. ENO, Respondent.

      Bill of exchange—refusal of drawee to pay in full or redeliver bill to payee — liability of drawee.

    When the dealings between the holder and the person on whom a hill of exchange is drawn, show that the understanding between them is that the latter is to pay thereon the amount in which he is indebted to the drawer, and that the bill of exchange, with an indorsement thereon of the payment of such amount, is to be held by the drawee as a voucher for such payment: held, that by refusing to deliver the bill of exchange to the payee, the drawee does not make himself liable as an acceptor thereof under the provisions of 3 Revised Statutes (5th ed.), page 68.
    Whether a builder’s order be a bill of exchange or not, quosi'e.

    Appeal from a.judgment in favor of defendant, entered at the Kings county Circuit, on the dismissal of plaintiff’s complaint.

      Theodore B. Gates, appellant, in person.

      George De Forest Lord, for the respondent.
   Tappen, J.:

This is an appeal from a judgment entered in Kings county on the dismissal of the plaintiff’s complaint at Circuit.

The plaintiff sought to charge the defendant with liability upon an instrument which the plaintiff claims to be a bill of exchange, and which reads as follows:

“ Brooklyn, December 3, 1872. Amos F. Eno, 75 William street, New York.—Please pay T. B. Gates five hundred dollars, and deduct same from fourth payment on five houses on Ninth street, Brooklyn, between Third and Fourth avenue.

“Yours, etc., C. B. SKIFF.”

The defendant did not accept the order by any indorsement in writing. He made a small payment to the plaintiff, who indorsed the following receipt on the back of the instrument:

“ Received, December 19,1872, on within order, ninety-five dollars and seventy-eight cents, same having been indorsed'on note of O. B. Skiff, December 4, 1872.

“T. B. GATES.”

The defendant retained this instrument, with this receipt indorsed on it, as a voucher against Skiff, who had contracted to build houses for the defendant; and plaintiff was furnishing Skiff certain building materials. There being no written acceptance by the defendant, he is sought to be charged with liability under the following provision of the statute: “ Every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, and who shall destroy such bill, or refuse, within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill, accepted' or non-accepted, to the holder, shall be deemed to have accepted the same.”

At the time plaintiff obtained the instrument from Skiff, the latter was indebted to him on a promissory note for $500 ; and the money which plaintiff might realize from Eno, was to be applied on this note, which the plaintiff retained and had in his possession at the time of the trial of this action. It therefore appears that he parted with no value for the instrument on which he seeks to charge the defendant.

It appears from the testimony of the plaintiff and his witness Mr. Haviland, that they called on the defendant with this order; the defendant said that parties had filed liens against .the buildings for nearly the amount he owed Skiff, but that he would pay ninety-five dollars, being the difference between the liens and what he owed Skiff. “ We talked it over and thought it was better to accept that, indorse it on the order, an.d have that money then ; if there was anything left, Mr. Eno was to pay it on the order.”

The defendant returned to Skiff this voucher, and Skiff afterward placed it in the defendant’s possession ; and it was produced by the defendant at the trial.

The plaintiff himself testifies that the understanding when he received the ninety-five dollars was, that when the liens were adjusted, whatever the balance was, the defendant would pay him on account of the draft. These dealings between the parties show that the payment of the order was dependent upon contingencies; that the plaintiff dealt with the order and with the defendant upon that basis and understanding, and that the instrument was in no sense, as between the parties, a bill of exchange. And, not being a bill of exchange, the statutory liability created by the non-acceptance or non-return of such an instrument, does not apply and does not reach the defendant.

The plaintiff did not leave this order with the defendant for acceptance ; that was not his demand. He left it with the defendant as a voucher and authority to the latter against Skiff; -and it was treated as in fact it was, a mere builder’s order, whereby the owner might pay the person therein named any money accruing to his builder, to the extent named in such order. The plaintiff, having indorsed a payment of ninety-five dollars upon it, when he received that sum from the defendant, thereby authorized and justified the defendant’s subsequent retention of the order so indorsed. And the plaintiff’s subsequent demand for the order, so indorsed, does not, under the circumstances, bring the case within the statute above quoted, where a refusal to return the bill is to be deemed an acceptance.

It may be doubted whether the instrument, in all its features, constitutes a simple bill of exchange within the rules laid down and cases cited in Edwards on Bills, 139.-141; but the construction given to it, and the dealings of the plaintiff and defendant in respect thereto, as disclosed by the' testimony, clearly deprive it of the character which the plaintiff now seeks to ascribe to it. •

The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Tappen, J.

Judgment for defendant upon the exceptions, with costs.

       3 R. S. (5th ed.), p. 68.


text:
    GEORGE LEARY, Plaintiff, v. ALBERT C. WOODRUFF, Defendant.

      Lessee of warehouse and bulk-head—duty of, to persons unloading at.

    A lessee of a warehouse and the wharf in front thereof, who, for his own benefit, induces other persons to come there, is bound to keep his premises and the approaches thereto in suitable order for the business carried on there, and is liable to any person who is injured in consequence of any defect or obstacle, the existence of which could be discovered by a reasonable examination, commensurate with the use made of the premises.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term.
    This action was brought by the plaintiff, as assignee of the owners and insurers of a barge, to recover the damages occasioned to her by being overturned in a slip at the foot of Harrison street, Brooklyn. The defendant, Woodruff, was the lessee of the warehouse, in which the cargo of the barge was to be stored, and of the bulk-head in front of it. By the terms of the lease the landlord was bound to repair and dredge the slip. As the tide went out, the barge settled upon a bar of sand, formed by the discharge from a sewer in Harrison street, and sunk. Neither the defendant nor the plaintiff knew of the existence of the bar.

      E. D. McCarthy, for the plaintiff.

      William W. Goodrich, for the defendant.
   Tappen, J.:

The plaintiff on a trial at the Kings Circuit was nonsuited, and brings this appeal. The action was for negligence. The defendant occupied a wharf and warehouses at Brooklyn on the East river; the plaintiff had his vessel there unloading a cargo, and she careened and sunk. It seems that a bank or mound had accumulated under the water in front of and adjacent to defendant’s premises, and, as the tide went out, the vessel met with the accident stated. The plaintiff says that, having been invited to the defendant’s premises for the business in question, a duty devolved on the defendant to keep his premises and the approaches thereto which were under his control in suitable order for such business. This proposition is supported directly by the case of Carleton v. Franconia Iron and Steel Co. In that case a vessel sustained injuries from a rock in the bed of the dock under watez-, and the defendants were held liable. And the court says, even if defendants had no title to the dock, yet, if they occupied 'it and the adjoining wharf, and for their own benefit induced vessels to come to the wharf, their liability is not diminished. The like principle is held in Sweeny v. Old Colony R. R. A liability will not attach to the owner or occupant of the premises, if the defect or obstacle be so hidden that its existence could not be discovered by a reasonable examination commensurate with the use to be made of the premises, The defendant, among other matters, claimed that the unskillful manner of unloading and discharging cargo by the plaintiff, was the cause of, or contributed to, the accident. After testimony had been put in on-both sides, the court granted the defendant’s motion to dismiss the complaint, directing the exceptions to be heard in the first instance at the General Term. We are of opinion that this was error, and that upon the facts proven the plaintiff was entitled to go to the jury.

A new trial is therefore ordered, costs to abide event.

Present—Barnard, P. J., Tapper and Gilbert, JJ.

Exceptions allowed and new trial gz-anted, costs to abide event.

       99 Mass., 216.

       10 Allen (Mass.), 372.

       Shearman on Negligence, 658.