text:
    Florence A. Merrill, Resp’t, v. Peter Brunner, Survivor, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Evidence—What competent under Code Civ. Pro., § 839.
    The plaintiff offered to return certain furniture purchased of the firm of which defendant was the surviving partner, and demanded the return of the price thereof on the ground that the furniture was not as represented. In a suit to recover the price of said furniture the plaintiff was allowed under objection by defendant, to testify that she relied upon representations made by the deceased partner to her in purchasing the said furniture. Held, error; that the plaintiff was not a competent witness under Code Civ. Pro., § 839.
    Appeal from a judgment recovered on the verdict of a jury.

      Herman Frank, for app’lt; Horatio W. P. Hodson, for resp’t.
   Daniels, J.

The plaintiff purchased from the firm of Brunner & Moore a parlor suite of furniture for the price of $450, one cocobola cabinet for thirty-eight dollars and a table for twenty-eight. This purchase was made on the 8th of July, 1884, and she retained the property so purchased until October, 1885, when she discovered that the parlor suite was not rosewood, for which it was claimed on her part she had purchased it. She thereupon tendered it back to the defendant, who was the surviving member of the firm, and demanded from him the purchase price for which the verdict of the jury was rendered upon the trial. The defendant refused to receive the furniture, and it was returned to the plaintiff’s house, where it has since remained in store for him. It was stated by the plaintiff in her evidence that she bought the furniture from Mr. Moore, who had since died. She was then asked, “ In purchasing this furniture did you, or did you not, rely upon representations that were made ?” This was objected to under section 829 of the Code, and also that the question was leading. The objection was overruled and the defendant excepted, and the witness answered, “I certainly did; I considered it one of the oldest and best houses, and believed the representations to be true.”

Q. “ And you made the purchase of the furniture because you relied upon these representations ? ”

The same objection was repeated which was overruled and an exception taken, and the witness answered, “Yes, sir.”

This section of the Code rendered this witness incompetent to give evidence concerning a personal transaction between herself and this deceased member of the firm, against the defendant. Each of the questions which were asked of her, and the court permitted to be answered, related to a transaction of this description. The sale of the furniture, as this witness stated it to have been made, was between herself and the deceased partner, and whatever representations may have been made concerning the furniture were necessarily made by him. They must have been, if any were made, a part of the transaction which took place at the time between the plaintiff and Mr. Moore. This evidence tended to prove them, for if Moore did not make'them she could not rely upon them, and did relate to and include a personal transaction between the witness and the deceased partner, which she was not competent to give in her own behalf. It was directly within the prohibition of this section which has, in a similar manner, been applied to the disposition of like objections in other cases. Viall v. Leavens, 39 Hun, 291; Matter of Smith, 95 N. Y., 516.

Before the plaintiff could rescind the sale, and recover back the purchase price of these articles of furniture, the law required her to establish the fact that the representations were not only false but were made by the vendor with intent to deceive and induce a sale which would not otherwise have been made. That they were in fact made is supported by the testimony of the witness Charlotte Humphrey She testified that the furniture was represented to be rosewood And such was its appearance, for Thomas De G-reef whose evidence was introduced to prove that the furniture was not rosewood, stated that it was made of beach or birch, common white wood stained to represent rosewood, and he added, “It is a first class representation. No one who is not well acquainted with woods could detect that it is imitation. It is very hard to detect it. ”

If Mr. Moore represented the furniture to be rosewood, he may, according to the evidence of this witness, have been deceived himself, and in making the representation may not have intended to mislead the plaintiff, or represent the furniture otherwise than he believed it to be. If that were the fact, then there was no fraud established in the case, which would permit the plaintiff to rescind the purchase and recover back the purchase price.

There was some evidence given by the witness Humphrey, from which it might be argued that Mr. Moore understood the nature of the material out' of which the furniture had been manufactured. She stated that he said that the carving cost him $7 a day for the man to carve that furniture, which if it was done under his supervision, that fact would to some extent at least tend to prove that he must have known the wood was not rosewood. Even trivial circumstances may be relied upon in proof to support an inference of fraud Beardsley v. Duntley (69 N. Y., 577, 581.) But at the same time the evidence must go farther than to consist of only proof of vague surmises. Arthur v. Griswold, 55 N. Y., 400.

The testimony upon this subject was extremely slight, but possibly may have been sufficient to warrant the submission of this part of the case to the jury.

Two witnesses were sworn who were in the employment of the firm, who testified that they informed the plaintiff that the furniture was cocobolo finish. This, however, was denied, by her, and the issue created by the denial could be no otherwise legally settled than by the jury.

Without, however, determining, as the evidence may appear different upon another trial, that there waSj or was not sufficient to submit the question of fraudulent intent to the jury, it is enough for the present purposes of the case, that the evidence already referred to was illegally admitted, and for that reason the judgment should be reversed and a. new trial ordered with costs to the appellant, to abide th& event.

Van Brunt, P J., and Brady, J., concur.


source: Caselaw Access Project

author: Brady, J

license: Public Domain

text:
    Charles E. Lydecker, Receiver, etc., App’lt, v. Eliza Smith et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Fraudulent conveyances—Action to set aside—Who can maintain THE SAME.
    A receiver appointed to collect the'expenses and deficiency occasioned by the purchaser at a foreclosure sale, omitting to complete the purchase, may maintain an action to set aside a conveyance as fraudulent against the delinquent purchaser.
    Appeal from judgment of the special term dismissing; complaint.

      A. A. Redfield, for app’lt; Abner G. Thomas and E. Terry, for resp’ts.
   Brady, J

The plaintiff was appointed the receiver of the property of Emma Birney, an alleged judgment-debtor and this action was brought by him to set aside a conveyance which it was alleged was fraudulently made by her.

The proceedings supplementary against her were founded upon an order directing her to pay the expenses and deficiency occasioned by her omission to complete her purchase at a sale in a foreclosure suit and which might be shown by a resale of the mortgaged premises.

The direction to resell was duly made, although the order confirming the referee’s report of the second sale appears to have been made ex parte. In that it was directed that execution might issue for the collection of the sum pronounced to be payable by Mrs. Birney on account of her failure to complete her purchase.

The record does not show that any appeal was taken by Mrs. Birney from the order appointing the receiver or that any objection was urged against proceedings supplementary founded upon the absence of any judgment warranting them.

The objection urged successfully upon the trial herein was that there was no judgment existing against Mrs. Birney inasmuch as she was not a party to the foreclosure' action and the order made requiring her to pay the defi ciency mentioned was a mandate only, to be enforced as such and not a judgment eo nomine. It was not, it was said, rendered in an action against her commenced by summons and was not based upon pleadings. It was a continuation of the foreclosure suit only and as to her as a purchaser, although by becoming which she submitted herself to the jurisdiction of the court. Requa v. Rea, 2 Paige, 339; Miller v. Colyer, 36 Barb., 250.

The power of the court to order a resale and to direct the payment of any deficiency is conceded. It is not questioned either that an execution may issue to enforce the payment commanded but there, if the theory of the defendants counsel be accepted the remedy ceases. Where an execution may issue no attachment to punish for contempt in not paying money can be used Code section 14. Myers v. Becker, 95 N. Y., 493.

And it must follow that if in contemplation of the execution a conveyance be made with a fraudulent intent, no action can be maintained to invalidate it inasmuch as there is no judgment existing based upon pleadings and the usual ceremonials to that end. This is supposed to be an erroneous view of the subject. The order of the court made in the foreclosure case arose out of a transaction with the court and not with the plaintiff therein. Muller v. Colyer, (supra), and the only issue that could arise would be as to the difference in amount between what was to be paid on the first and what was to be paid on the second sale with the additional expenses.

This was a matter of figures easily ascertained on the coming in of the referee’s report and was herein determined within objection, and indeed so far as the record is concerned, without dispute. There was no necessity for pleadings in form or for a summons, because Mrs. Birney was already under the jurisdiction of the court in the action, and substantially consented to the order of re-sale by making no opposition. The plaintiff herein is still the quasi officer of the court in that case, having been appointed to collect its judgment which could not be enforced by execution alone, and invested with all the power possessed by receivers kindred to himself, at least as long as the order appointing him remains undisturbed. The order directing Mrs. Birney to pay the sum named should be regarded for the purposes of its collection as a judgment in all respects. It lacks nothing of the essential requisites of such formula. She subjected herself to the jurisdiction of the court, purchased under its decree—violated her contract thereby made—was cited to answer, submitted to the citation and was duly ordered to pay a sum in order to keep her faith with the court or its decree.

For these reasons there should be a new trial. It is not deemed necessary to consider in detail the objections to forms and not substance urged on the appeal inasmuch as they were of no controlling influence in the court below, in any respect the conclusion arrived at being predicate of the finding that no judgment had been entered and, inasmuch also as independently of that they are of no sufficient value considered either singly or grouped together to interfere with the views herein expressed or to sustain the judgment.

Daniels, J concurs.


author: Bartlett, J.

text:
    Henry C. Andrews, as Receiver of the Rockaway Jockey Club, Limited, Resp’t, v. George H. Moller et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.

    Evidence—Action for money had and received.
    In an action for money had and received, where the defense, admitting the receipt of the money, consists of the repayment of the sum in satisfaction of claims held against the plaintiff, it is error to exclude any of the testimony going to prove all the circumstances of the repayment and the existence of the claim.
    Appeal from judgment entered on the verdict of a jury at circuit, and from order denying motion for a new trial.

      Abram Kling & Leopold Wallach, for app’lts; John BrooTcs Leavitt, for resp’t.
   Bartlett, J.

We are obliged to grant a new trial in this case, on account of what seems to us erroneous rulin in the exclusion of evidence.

This is an action brought by a receiver to recover moneys alleged to have come into the hands of the defendants as commissioners to receive subscriptions to the stock of the Rockaway Jockey Club, limited.

The principal question litigated upon the trial was whether a check for $15,000, given to the defendants by one E. G. Hines, was subsequently turned over to Hines by the defendants, in satisfaction of a claim which he had against the club.

George Binns, one of-the defendants, was called as a witness in behalf of the defense, to show that the cheque bad been thus applied. After he had testified that the cheque was returned to Hines, the following questions were put and rulings made, as the appeal book shows :

Q. Will you give us the circumstances under which it was returned ?

A. The circumstances under which it was returned was, Hines claims, against the company.

Objected to. Objection sustained. Exception taken by the defendants.

(Witness continues.) Hr. Hines was supposed to be responsible.

Q. Do you know what the amount of the claim was that Mr Hines had against the corporation at the time the cheque was returned ?

Objected to. Objection sustained. Exception taken by defendants.

Q. Did he take that cheque in satisfaction of any indebtedness he had against the corporation % If so, state the circumstances under which it was given.

Objected to. Objection sustained. Exception taken by defendants.

The objection to the first question appears to have been made after the witness had begun to answer, but was in time to prevent him from making any really intelligible response. The effect of the several rulings was to exclude any detailed statement of the transactions attending the redelivery of the cheque.

We think the witness should have been permitted to state fully all the circumstances under which this' $15,000 cheque was transferred back to Hines. His testimony on this point would have related to the main issue in the case, as stated by the learned judge at the conclusion of the charge, when he told the jury that it was for them to say, * On the evidence of Binns, whether the $15,000 cheque which Hines originally gave to the commissioners, was turned over to him by the company in good faith, in settlement or part settlement of his claim against the company.” The counsel for the respondent argues that after the exceptions were taken to which we have referred, the witness was allowed to testify as to the circumstances called for by the foregoing questions; but it nowhere appears that similar interrogatories were again put, which he was permitted to answer, or that he was at any time afforded an opportunity to narrate the circumstances of the transaction in full. , If the testimony sought to be elicited by these questions after-wards got into the case the record before us on the present appeal fails to show it.

That the exclusion of this evidence was detrimental to the defense can hardly be doubted, when we consider the fact that the trial judge in charging the jury commented upon the omission of this very witness to state particulars as to the return of the cheque, saying: “Binns simply says it was done. Who did it, when it was done, how it was done, we are not informed.” It would seem that this information might have been furnished if the plaintiff had not kept it from the jury by the objections which have been considered.

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

Van Brunt P J . and Macomber, J , concur


author: Lawrence, J.

text:
    Eliza Ennis, Resp’t v. Lawrence Ennis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887)

    Referee—Duty of under order to receive evidence.
    Where the order appointing the referee to take proof of facts provides that either party shall he precluded from giving such evidence as may he competent as to any claims on account of any mortgages, and specifies a particular one, the referee will err in excluding competent evidence as to the particular one referred to in the order.
    This is an appeal by the defendant from judgment rendered at special term on the 6th of May, 1886, in favor of the plaintiff, and notice is given by the appellant in his notice of appeal that he intends to bring up for review upon such appeal the interlocutory judgment herein entered January 21, 1885. By that interlocutory judgment it was determined that a certain conveyance made by the plaintiff to one Deacon of her undivided half interest in certain premises situated in the city of New York, dated September 30, 1816, which said premises were subsequently conveyed by said Deacon to the defendant, was declared to be fraudulent, null and void, and that the same be set aside as against the plaintiff. It was further adjudged that the defendant reconvey to the plaintiff the premises mentioned .in the conveyance aforesaid, and, further, that it be referred to a referee to take and state the account of the defendant of the rent and income of the premises above mentioned received by him since the 30th of September, 1816, and for any taxes or other liens or incumbrances upon said premises since that date, made or suffered thereupon by him, or by him paid or discharged, and that said referee ascertain and report the amount of taxes or other liens and incumbrances which are outstanding or existing upon or against said premises, and that said referee ascertain and report the amount of the rent and income of said premises, and that he be at liberty to report any special facts that may be proper to enable this court to make its final judgment.
    It was further adjudged that the defendant pay to the plaintiff such part of the rents and income of the said premises so found to have been received by the defendant as the court shall in its final judgment direct, and that the defendant pay and discharge at or before the date of the delivery of the conveyance by him to the plaintiff in said decree mentioned, all taxes, hens and other incumbrances upon the estate and premises received by him from the plaintiff except such as were existing hens thereon when said conveyances were made. There were other provisions in the decree to which it is not necessary to refer in dispos ing of this appeal. After the entry of the interlocutory decree the plaintiff moved at the general term of this court upon exceptions for a new trial herein, and on the 7th of May, 1885, the general term made an order denying the motion, but amending the decree to the effect that the findings of the learned justice before whom the case was tried upon the trial thereof, shall not preclude either party from giving such evidence as may be competent under the pleadings as to any claims on account of any mortgages and the interest thereon less time paid, or due now or heretofore existing upon the premises described in the complaint together with interest paid by the defendant therein, and for taxes, water-rates and permanent improvements. Upon the case coming before the referee, a bond and mortgage of the plaintiff for $5,000 to Thomas Cummins were offered in •evidence. Objection was taken to their competency and the objection sustained. The defendant then applied to the general term, which amended the order theretofore made by providing that the decree aforesaid: “Shall not preclude, either party from giving such evidence as may be competent under the pleadings as to any claims on account of any mortgages and including the mortgage dated April 10, 1874, from the plaintiff to Thomas Cummins, and the interest thereon,” etc. Upon the further hearing before the referee the bond and mortgagage by the plaintiff to Thomas Cummins having been offered in evidence, this question was nut to the defendant: “Has that bond ever been paid?” This was objected to on the ground that it already appeared in evidence that the mortgage had been satisfied, and that it also appeared by the findings and by the answer that the only consideration for the bond and mortgage was the plaintiffs’ promise to pay the defendant $5,000 for dower right, provided by law, and that the question was incompetent generally under the pleadings. This objection was sustained. Several other questions were asked of the defendant in regard to that bond and mortgage which objections were all sustained upon the same ground as the first objection. The case now comes up on the appeal heretofore referred to in which the appellant insists he is entitled not only to review upon such appeal the final judgment, but also the interlocutory judgment.

      L. B. Bunnell and Bobert Johnston, for app’lt; Michael Furst and A. W. Gleason, for respt.
   Lawrence, J.

We are of ©pinion that under the second order made by the general term of this court it was the duty of the learned referee to have received any evidence which might be offered by the defendant in regard to the mortgage executed by the plaintiff to Thomas Cummins and the interest thereon, and that the' referee' therefore erred in sustaining the objections to the testimony offered by the defendant at folios 320-323 of the case

We regret that this case is not in such a position as to be disposed of upon its merits, but are compelled to send the case back to the referee for further proofs Ordered accordingly.

Van Brunt, P. J., and Bartlett, J., concur


author: Brady, J. Per Curiam.

text:
    Susan E. Corser, Resp’t, v. Horace Russell, et al Receivers, etc., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Receivers—Liability of—When it ceases.
    Receivers are officers of the court, and the property in their hands is in custodia legis. There are various methods by which they can be divested oí their position, and when any one of these is adopted the trust ceases, and all rights and powers depart. There is no principle upon which they can be held liable for any losses occurring after the possession has been changed or surrendered. Brady, J.
    3. Same—Evidence of deposition when admissible.
    When an action is brought against the alleged receivers of a company for damages caused by the destruction of plaintiffs property, though the depositions of the defendants as receivers are not pleaded, yet it is error to exclude the evidence showing that the defendants had ceased to be, and had no rights as receiver. The production of the deed to the newly appointed receivers, is sufficient prima facie to show the commencement of proceedings ending in its execution. Brady, J.
    3. Same—Chance of possession when presumed.
    The oiler to prove the appointment of a referee by the court, who conveyed all the property and rights connected with it and the deed of conveyance of the new receivers is improperly excluded, when it would appear that the defendents as receivers at the time of the loss had been entirely'divested of the proprietary right. The title would take with it the right of possession, and the cnange of possession might properly be presumed from the lapse of a reasonable length of time. Per Curiam.

    4. Same—Contracts made with receivers, how understood.
    All contracts made with receivers in that capacity, are so made subject necessarily to the contingency, that their powers and office may be terminated by the court without notice to the contracting parties. Per Curiam.

    Appeal from the judgment on verdict.

      Ashbel Green, for app’lt; M. L. Marks, for resp’t.
   Brady, J.

This action was brought to recover damages; sustained by the destruction of the plaintiff’s trunk and contents by fire while in the custody, as alleged, of the defendants as receivers. It was not set up as a defense that, prior to the fire they had been deposed, or ceased to be receivers, but on the trial they offered to prove that Abram 5. Cassidy, as referee appointed by this court, by deed executed December 5th, 1885, conveyed to J. Pierpont Morgan and others, all the right of the defendants as receivers, and all property, real, personal and mixed, held for or in connection with the construction, operation and maintenance of the New York, West Shore and Buffalo railway, and all rights connected with or relating to the same, or the uses, or purposes thereof, but it was objected to as incompetent, and the objection having been sustained the defendants duly excepted. This ruling the plaintiff seeks to sustain by contending that there was no evidence that the defendants, ceased to be officers of the court.

The object of the offer was to show that they had virtutually ceased to be and that they had no rights as receivers from the date mentioned, such rights and the body of the-trust out of which they sprung having been transferred by a legal process. - The testimony was clearly competent inasmuch as the fire did not occur until January, 1886, and the defendants could not, it would seem, by any possibility not being in charge, be liable for the loss assessed. It is. not for the plaintiff now to say that the defense which this proof was designed to establish was not set up in the an swer. If that objection had been taken, an application to-amend might have removed the obstacle. The objection was to the competency of the proof generally and not otherwise. The production of the deed was sufficient prima facie to show the commencement of proceedings, ending in its execution, and it could have been followed up by proof of the necessary proceedings, if requested, to show the appointment of the referee and the proper performance of his duties as such. This must be the presumption.

Receivers are officers of the court and entitled to protection. The property in their hands is in custodia legis, and their possession is the possesssion of the court. 3 Wood’s Railway Law, 1658; High on Receivers, S., 134. There are various methods by which they can be divested of their position by the action of the court, of which they are an arm, and when any one of these methods is adopted the trust ceases and all rights and powers depart. There is, therefore, no principle on which they can be held liable for any losses occurring after the possession has thus been changed or surrendered. It may be that receivers who continue after the order deposing them and until their successors are sworn in, can be held responsible for acts done ad interim, but this case presents no such element. There is, indeed, evidence to warrant the suggestion that when the fire took place, the plaintiff’s property was in the custody of the New York Central and Hudson River Railroad Company, and it is a contention on behalf of the defend ants that from the 5th of December, 1885, to the time of the fire, the plaintiff’s trunk had been in the keeping of that company as warehouseman.

The judgment for these reasons is erroneous and must be reversed and a new trial ordered, with costs to abide the event.

Per Curiam.

It seems necessary to add to the opinion of Mr. Justice Brady for the decision of this appeal, that the contract of the defendants with the plaintiff for the storage of her baggage, was made by them in their capacity of receivers, and subject necessarily to the contingency alway present, that their powers and office as such might at any time be terminated by the court, whose officers they were, and without notice to her. And such termination of their offices would of course end their obligations to her as the bailees of her property. After that the succeeding bailees, and not these receivers would be accountable to her, if any person would be, for the safe custody, or loss of her property. This result follows from the fact that the contract ivas with them as receivers, and not as inviduals.

In their offer of proof they proposed to show that on the 5th of December, 1885, a referee appointed by the court had conveyed to J. Pierpont Morgan and others, all property, real, personal and mixed, held for, or in connection with the construction, operation and maintainance of the railway company, and all rights connected with it, or the uses and purposes thereof. And offered such deed in evidence. This offer was very broad, and if it had been allowed to be proven, the fact would have appeared that the receivers had at that date been completely divested of all their proprietary rights, and services of operation and maintainance of the railway property and the uses thereof. And from such proof it might be well argued that as the right had passed so completely with the conveyance, the fact of possession had also accompanied it. The title itself would take with it the right of possession and it would not be an unreasonable inference, to presume from that fact as the jury might very well have done, that the grantees in the conveyance entered upon the possession of the property and interests conveyed. And this inference of possession is very decidedly advanced by the circumstance that the destruction of the baggage by fire did not occur until the twenty-fourth of the next month. Before that date there was very ample time for the grantees to assume and take the possession of the railway, and all of the company’s property. It was a most natural event to follow the conveyance. And as it was made under the authority of the court, a delivery and assumption of possession, in the ordinary course of probabilities, also became a duty. If the proof had been received it might very well have changed the result of the trial. And the exception to the decision rejecting it, is well founded.

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


text:
    Percival Roberts et al., Resp’ts, v. Francis H. Tobias et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    General Assignment—Section 29 of the general assignment act as AMENDED BY CHAPTER 328 OF THE LAWS OF 1884—EFFECT OF FAILURE TO PREFER SALARIES OF EMPOYEES IN THE ASSIGNMENT.
    The failure of the assignor to prefer the wages or salaries of their employees in express terms does not invalidate the assignment. Such wages or salaries are preferred hy the force of the statute itself. Following Richard-sons. Thurber, 6N. Y. State R., 489.
    Appeal by defendants from special term judgment declaring a general assignment void.

      Charles H. Griffin, for app’lts; A. H. Armidown, for resp’ts.
   Bartlett, J.

The assignment which was attacked in this case contained no clause preferring the wages or salaries actually owing to the employees of the assignors at the time of the execution of the assignment. This omission was held to be fatal under section 29 of the general assignment act, as amended by chapter 328 of the Laws of 1884. It was decided that the statute was mandatory, and required the preference to be expressed in the assignment itself and that a failure to comply with this requirement rendered the instrument void.

Since this cause was argued before us a decision has been rendered by the court of appeals which settles the questioii involved in the present appeal adversely to the view adopted herein by the special term. Richardson v. Thurber, 6 N. Y. State Rep., 489. In that case Judge Finch, delivering the opinion of the court, says the question is in some respects so close and evenly balanced as to have produced conflicting opinions in the supreme court, and drifted very able judges into disagreement, and he declares the principle merit of the judgment of the tribunal of last resort to be that it is final and settles the rule to be observed. The court of appeals holds, “though not without some hesitation,” that a general assignment is not invalidated by an omission to insert in the instrument an express preference of the wages or salaries of the assignor’s employees, but that such wages or salaries are preferred by the force of the statute itself.

This determination is decisive of the present appeal, and requires a reversal of the judgment, which is plainly based solely upon the failure of the assignors to prefer the wages or salaries of their employees in express terms. „

The respondents contend that the record practically presents no exceptions, but even in the absence of exceptions the general term on an appeal of this kind may still correct a substantial error on the part of the trial court. Mandeville v. Marvin, 30 Hun, 282, 288. If the appeal papers herein are true copies, the so-called findings, in support of the judgment, are no less defective than the so-called exceptions, for they do not appear ever to have been signed.

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

Lawrence, J., concurs.


author: Daniels, J.

text:
    Mary F. Williams et al. v. Joseph Walker et al.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Estoppel—Apparent ownership—Advances.
    Where shares of stock were placed in the hands of one for safe keeping with blank power of sale endorsed thereon: Held, that if the defendants who received them had advanced money on them relying on the apparent ownership of the party by whom they were delivered and without advice of the interest in them belonging to the plaintiffs they could have held them, as security for such advances.
    2. Title—Change oe—Presumption oe legality.
    The testimony on the plaintiff’s side of an action for the recovery of stock showed that the stock was at first held by them as a pledge, and further testimony was adduced showing that they held it subsequently as the absolute owners. How the title was changed and vested absolutely in them was not made to appear on the trial. Held, that as no question was made as to the manner in which the change of title took place it must be assumed to have been done legally.
    3. Practice—Request to go to jury, after submission of case on questions of law—Should be specific.
    There was no controversy in the case concerning the demand and refusal to deliver the shares nor as to their value, and when the evidence was closed the defendants moved to dismiss the complaint because they were bona fide holders of the stock without notice of the plaintiff’s interest. Upon the denial of this request an exception was taken and the plaintiffs thereupon requested the cour^to direct a verdict in their favor for the return of the stock which the court did and to which the defendants likewise excepted. When it was decided to direct a verdict for the plaintiffs the counsel for the defendants asked to go to the jury upon the facts of the case and that being refused excepted, and upon an appeal from the judgment insisted that the credibility of a certain witness should have been submitted to the jury. Held, that in case this had been desired, after both parties had concurred in requesting the court to dispose of the case upon what they deemed to be their legal rights, it should have been specially requested.
    Motion by defendants for a new trial on exception ordered at the circuit to be first heard at the general term.

      Thomas Jackson, for pl’ffs; B. F. Dos Passos, for def’ts.
   Daniels, J.

At the close of the evidence a verdict , was directed in the plaintiffs’ favor for 6,000 shares of the capital stock of the Little Pittsburgh Consolidated Mining Company. Four thousand of these shares were delivered by Fielding L. Wilhams to the defendants on the 9th of January, 1882, and the additional 2,000 on the 2d of February, 1882. A receipt was taken for the 4,000, stating no more than the fact that these shares had been received from Wilhams. The receipt for the 2,000 did express the additional 'fact that the shares were received for safe keeping. While they were held by the. defendants they had blank powers of sale endorsed upon them either by Wilhams himself or the persons in whose names the shares stood upon the books of the corporation under his authority. And if, in reliance upon his apparent ownership, the defendants had made advances upon the shares without notice that the plaintiffs were interested in them, they could have been held as security for such advances. McNeil v. Tenth National Bank, 46 N. Y., 325; Merchants Bank v. Livingston, 74 id., 223, 226.

But while it appeared that Wilhams was indebted to the defendants after these shares were received by them, it was not proven as a fact that they had been hypothecated for the indebtedness, or that any advances had been made upon them. The defendants, Joseph Walker and his son, Joseph Walker, Junior, were examined as witnesses upon the trial, and while their evidence proved their dealings with Williams it failed to establish the fact that any agreement or understanding had ever been entered into that advances made by them, or indebtedness arising out of their transactions, should be charged upon these shares as security. The defendant Joseph Walker did testify that they asked Wilhams for security when he gave them this stock, but he failed to prove that it was agreed or understood that these shares should be held as such security. On the contrary his statement is that what was said at the time he deposited the shares was that he wanted me to take care of this stock for him. Nothing was said about its being margin upon his account by him, or by -me, at that time. Nothing was said to the effect that he did so as margin, but at that time he had a credit balance in his favor of nearly $12,000. And this was "sustained also by the evidence of his son. The defendants accordingly were not in a position to withhold the shares from the plaintiffs if they were in fact the owners of them.

And that they were such owners was positively stated by Williams in his evidence. According to that evidence, he acted for the plaintiffs who were his sisters, and deposited the shares with the defendants only for safe keeping, until orders might be given for their sale. These shares, he testified, were delivered to his sisters as security for a noté of thirty-two thousand dollars, and they held them for some time in their box. How the title was changed and vested absolutely in the sisters was not made to appear upon the trial, but it was stated as a fact that they were the owners of the stock. And as no explanation was asked as to the manner in which they became the owners from being mere pledgees, it is to be assumed that it was legally done through their dealings with their Brother. This evidence of their title was in no manner contradicted upon the trial, neither was the statement of the fact that the shares were delivered to the defendants for safe keeping, but that is distinctly stated to have been the fact in the last receipt. And it may be inferred to have been so from the first, in as much as it expressed no different intent or design.

There was no controversy in the case concerning.the demand and refusal to deliver the shares ; neither as there as to the value of the shares themselves, and when the evidence was closed the defendants moved to dismiss the complaint, because they were bona fide holders of the stock without notice of the plaintiffs’ interest. That was denied and their counsel excepted to the denial. The plaintiffs thereupon requested the court to direct a verdict in their favor for the return of the stock, which the court accord - ingly did, and to that the defendants likewise excepted. Both parties in this manner presented the case to the court as wholly dependent upon legal propositions which it was asked to decide for its disposition, and the court so considered it. But when it was decided to direct a verdict for the plaintiffs, then the defendants counsel asked to go to the jury on the facts in the case, which was refused, and to that refusal they excepted. And in support of that exception it is now insisted that the credibility of the witness Williams should have been submitted to the jury, under the rule stated in Koehler v. Adler (78 N. Y., 287.)

But if that had been desired, after both parties had concurred in requesting the court to dispose of the case upon what they deemed to be their legal rights, it should have been specially requested. There was nothing whatever in the request which was made, intimating to the court that there was the least desire to submit this point to the jury.

If that had been applied for, probably such a direction would have been given, but it would not be fair either to the court or the plaintiffs, to direct a new trial, after the practical concurrence of both parties, that the case depended solely upon the application of the law, when no request was afterwards made to submit this particular point to the consideration of the jury. The case was disposed of at the circuit in conformity to the evidence, and the motion for a new trial should "be denied, and the plaintiffs have judgment upon the verdict.

Van Brunt, Oh. J., and Brady, J., concur.


text:
    Mary L. Reitmeyer, Resp’t, v. John C. R. Ehlers, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1 Rent—Liability of the general assignee of lessee.
    In an action for rent for premises owned by the plaintiff and leased to the parties who subsequently made a general assignment to the defendant. Meld That in the absence of an express agreement to pay rent the defendant became liable therefor by reason of his occupancy and use of the property as the general assignee of the lessee.
    2 Question of fact—Decision of jury can not be reviewed on ap PEAL
    Certain matters were set up as counter-claims by the defendant which the plaintiff insisted should not be allowed as such but should be deducted from the amount which she was preferred as a creditor. Held, That the question being properly one of fact, could not on their decision adversely to the defendant be the subject of review on appeal,
    Appeal from a judgment rendered on the verdict of a jury, and an order denying a motion for a new trial.

      John S. Durand, for resp’t; C. Brainbridge Smith, for appl’t.
   Daniels, J.

The action was for the rent of premises owned by the plaintiff and leased to the assignors, who made a general assignment to the defendant. The assignment was made on the 20th of November, 1885, and the assignee thereupon took possession of the demised premises and occupied them until the last of March, 1886. The assignors held the premises under an agreement to pay rent at the rate of $100 a month, and the assignee seems to have assumed a like obligation. But if he did not expressly, he became liable to pay rent to the plaintiff by reason of his occupancy and use of the property as the general assignee of the lessees. Matter of Otis, 34 Hun, 542.

The controversy as to liability for rent was not, however, the important subject of dispute upon the trial. That arose upon counterclaims presented by the answer of the defendant. Previous to the assignment outstanding accounts of the assignors were assigned to the plaintiff upon which it was alleged that she had collected the sum of $336.04, which should be applied in payment of the rent. She did collect $314.78.

The dispute arising upon the assignment and collection of so much of these accounts was not directed specially to the amount received, but it was concerning the application which the plaintiff was obligated to make of it. She was a preferred creditor in the assignment and contended that what she received was to be applied upon and deducted from her preference. This was denied by the defendant in whose behalf it was insisted that the amount should be applied upon the rent. That point on the disputed evidence was submitted to the jury, and they determined this part •of the case as they did the defendant’s liability for rent by their verdict against him.

The objection has been taken that this part of the case should not have been submitted to the jury. But if the ruling should have been otherwise and the decision of the point has been made by the court, the defendant probably would have been in no better condition. For by the memorandum of the 20th of January, 1886, it was agreed by the plaintiff that the moneys collected by her since the bill of .sale were to be deducted from her account. This contained no reference, whatever, to the liability of the assignee for rent. That was in no proper sense any matter of account, and under the circumstances attending the making and delivery; of this instrument, the construction is warranted, that it was intended that the moneys collected should be deducted from the preference and not from the rent, and the other evidence of the plaintiff is entirely consistent with this view, and supports the jury in the conclusion they adopted. A further counterclaim was presented for moneys collected by William Reitmeyer as the agent of the plaintiff, and whether this was a proper subject of counterclaim or was to come out of the preference, or was money due to Reitmeyer himself, were inquiries submitted to the jury, under the evidence adduced during the trial. The evidence touching this claim as well as the other, was such as to render its application dependent upon a question of fact. There was no preponderance of evidence in' either direction which would render the jury incapable of finally disposing of it as they saw proper, and as they did so adversely to the defendant the case is not one which is hable to interfered with on an appeal, either from the order or the judgment. And as it was rightly disposed of so far as the directions of the court affected it, or if not, such directions in no manner operated to the prejudice of the defendant, the judgment and order should be affirmed.

Brady, J., concurs.


author: Brady, J.

text:
    Mary L. McKenna Adm’rx, etc., Resp’t, v. Thomas Bolger, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.,

    Evidence—As to tbansactions had with a pee son since deceased— Code Crv. Peo,, § 829.
    It is not the intention of Code Civ. Pro., § 829, to prevent a party to a suit from testifying to any extrinsic fact tending to contradict a witness who swears to transactions or communications had between such party and a deceased person, even where he cannot directly testify that no such conversation or transaction was ever had.
    Appeal from a judgment on verdict.

      John T. Fenlon, for app’lt; E. More, for resp’t.
   Brady, J.

This action was commenced for the purpose of compelling the payment of $1,666, with interest from the 13th of October, 1877, which the defendant promised to pay John P. O’Neill, deceased, for his interest in what was called the Mount Kisco farm. The case is here for the third time. Reports of the appeals may be found in 17 Weekly Digest, 431, and 37 Hun, 526; S. C., 8 N. Y. Civ. Pro., 127.

Some of the questions presented upon this appeal were considered and disposed of in the other adjudications to which reference has been made; and if a review of the whole case were necessary, some reference to these questions might become important.

Upon the trial now under consideration, a witness named Tobias was called on behalf of the plaintiff for the purpose of establishing the contract out of which the alleged indebtedness grew, and who testified that he was present at an interview between the deceased and the defendant, which resulted in the deceased’s offering to take for his interest in the Mount Kisco farm the sum already named, the acceptance of the offer, and a direction by the defendant to prepare a deed, which was accordingly done, and left with the witness by the deceased in escrow, to be delivered to the defendant upon the payment of the consideration named. By an agreement, winch was also stated by the same witness to have been subsequently made, a proceeding in foreclosure was commenced and completed in order to give to the defendant a more perfect title than it was supposed could have been granted by the deed from O’Neill, and it was understood in reference to this proceeding that no attempt should be made by O’Neill to bid in the property or exalt the price, and thus carry out the project that the defendant was have the property substantially at his own bid. The agreements were made at different times, but the second was to some extent predicated of the first, and was entered into, it may be said, substantially to make the first one effectual.

The defendant was called as a. witness, and, evidently for the purpose of contradicting Mr. Tobias, was asked this question: '

Q. Did you promise Mr. O’Neill in the presence of Mr. Tobias, at that time, that you would give him (O’Neil) $1,666 for his one-third interest ?

Objected to on the ground that the question involves a. transaction with a deceased person. Objection sustained. Defendant excepts.

In the second appeal in this case it was distinctly held, that such a line of examination was proper, and one of which the defendant could not be deprived. The court-there said: “It was not the intention of the Code to prevent a party to a suit from testifying to any extrinsic fact-that tends to contradict a witness who swears to transactions or communications had between such party and a deceased person, even where he cannot directly testify that no such conversation or transaction was ever had. It was not the intention to prevent the contradiction of a living witness, but to prevent the living party to a transaction or communication from testifying to it himself, when death has closed the mouth of the other party.

It is true that immediately after the exclusion of this question another was asked, as follows :

Q. You have heard Mr. Tobias say that you had a conversation with Mr. O’Neill in Mr. Tobias’ presence about-agreeing to have this property foreclosed, and that you would give him (O’Neill) $1,666 ? Did you ever have a conversation with Mr. O’Neill as to that matter in the presence, of Mr. Tobias, and as to the payment of $1,666 in the presence of Mr. Tobias ?

Objected to as involving a transaction with a deceased, person. Objection overruled, and the defendant answered, “ I did not.”

But this was as to the second arrangement, it will have been perceived, by which the foreclosure was contemplated. It left in the case, however, uncontradicted, the statement-in reference to the original transaction which was a part of the second agreement, and in which a deed was prepared and delivered in escrow to Mr. Tobias, to be handed to the defendant when the consideration was paid.

It is impossible to say with any certainty of justice being done, that the answer to the second question deprived the statement of Mr. Tobias as to the original agreement of all its force, and therefore that it could not have prejudiced the defendant. It left a striking and impressive circumstance untouched, namely, that in consequence of that original understanding a deed had been drawn and left for delivery when the consideration, was paid. If, in other words, there was no agreement prior to that which related to the foreclosure, the preparation of the deed was an entirely voluntary performance on the part of O’Neill, and could have no vitality or strength as an independent fact in the case. This error is to be regretted, inasmuch as it necessitates another trial—an event, however, which is deprived of its unfortunate results by the presence of other elements, which upon close consideration might be held to be objectionable.

Under well settled rules, however, the exclusion of the' evidence seems tobe an insuperable objection to the validity of the judgment appealed from.

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

Van Brunt, Ch. J., and Daniels, J. concur


text:
    The Corn Exchange Bank of Chicago, Appl’t, v. Alphonso W. Blye, as Receiver, Etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Execution—Imprppee. issuance of—Costs on motion to set aside.
    An execution issued in this action was given to a messenger to be delivered to the sheriff who received it on the following day. Before the execution had yet reached the sheriff, an order staying the plaintiff’s proceedings had been granted and served by being placed in the office of the plaintiff’s attorney in a conspicuous place during the hours allowed for that purpose, the office being open and no person therein to receive it, a motion having been made to set aside the execution. Meld, That the stay having been properly granted and served, the only question to be considered was whether under the circumstances costs of the motion should be imposed, and that this was properly determined in favor of the defendant,inasmuch as the regularity of the execution was sought to be maintained and seizure made under it.
    2. Same—Service of papers—When effectual.

      Meld, The fact that the attorney for the plaintiff did not find the papers thus served furnished no answer to the positive proof of their service.
    Appeal from an order setting aside an execution.

      L. A. Gould, for appl’t; Elihu Bool, for resp’t.
   Brady, J.

The execution issued herein was given to a messenger on the first of June last, to be taken to the sheriff of Orange county, who received it on the following day. When the execution was on its way to the sheriff an order staying the plaintiff’s proceedings had been granted and it was served prior to his receipt of the execution. It was served upon the plaintiff’s attorney by putting it in a conspicuous place in.his office during the hours allowed for that purpose, the office being open and no person therein to receive it. The learned justice in the court below regarded these as established facts and we see no reason to doubt the correctness of this conclusion. The attorney for the plaintiff did not find the papers at his office when he arrived there on the second of June as he asserts, but this is no answer to the positive proof that they were left therein. The stay having been granted and properly served, the only question to be consulted was whether under the circumstances costs of the motion should be imposed, and this was properly determined in favor of the defendant inasmuch as the regularity of the execution was sought to be maintained and the seizure made under it as well. The order appealed from cannot be disturbed for any reason apparent on the record. It must therefore be affirmed, with ten dollars costs and the disbursements of this appeal. Ordered accordingly.

Van Brunt, Oh. J., and Daniels, J., concur.


author: Per Curiam.

text:
    Aries P. Brooke et al., Resp’ts, v. B. F. Taylor, App’lt. R. D. Taylor, Res’pt, v. The Same, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Summons—Sebvice of, by publication—Oedeb fob.
    Where in an order for the service of summons according to Code of Civil Procedure, § 430, it was directed that the summons and complaint should be served by publication and that a deposit should be made of those papers and of the order in a securely closed post-paid wrapper, and addressed to a place named and it was clearly indicated that it was to be addressed to the defendant, upon whom and upon whom only it was necessary to serve a copy of the papers, and who in an earlier part of the order were stated to reside or do business in or about the said place. Held, that a substantial compliance with the requirements of the Code was all that was necessary to give validity to a proceeding under the section named.
    Appeal from order denying motion to vacate attachment.

      A. W. Otis, for app’lt; C. S. Clark, for resp’ts.
   Per Curiam.

We think the order of publication objected to in this case was in form and substance a substantial compliance with section 440 of the Code. Although the names of the defendants were omitted, yet the direction-was to serve the summons and complaint by publication, and that a deposit be made of those papers and of the order in a securely-closed post-paid wrapper and addressed at Royersford, Pa., thus clearly indicating that it was to be addressed to the defendants upon whom and upon whom only it was necessary to serve a copy of the papers, and who in an earlier portion of the order are stated to reside or to do business in or about the place named. A substantial compliance with the requirements of the Code is all that is necessary to give validity to a proceeding under the section mentioned. See Green v. Squires, 20 Hun, 15; Weil v. Martin, 24 id., 645. The case of Ritten v. Griffith (16 Hun, 454), though it may seem to be in conflict with the view expressed, is not, for the reason that in that case the order simply directed that the summons with a copy of the complaint and order should be served upon the defendant personally without the state, and it was for that reason held to be void. There was an entire omission of compliance with all the provisions of the Code with regard to publication; and the service by publication as required by section 440. The option of service by publication or by personal delivery was not preserved by tnat order and not alluded to in any way, and it was defective in a very important element therefore. But as we have already seen in the case at bar constructively, the service by publication was so directed that there can be no mistake, whatever, in the construction or interpretation of the order to it.

But, although we deem it our duty to affirm the order, we think the respondent should not have costs because of the negligence of the attorney.

Ordered accordingly.


text:
    Samuel P. Hyman et al., Resp’ts, v. Jacob Kapp et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Assignment—What evidence is insufficient in an action to set ASIDE AS FRAUDULENT AND VOID
    On the trial of an action to vacate an assignment as fraudulent and void it was so adjudged on the disposition made of appeals from orders denying motions to vacate attachments issued in favor of the plaintiffs. This decision was made upon affidavits which were deemed to establish the fact that the debtor had disposed of property with intent to defraud his creditors. ' Held, that it did not necessarily follow from that decision that a judgment should be rendered setting aside the assignment as fraudulent, for upon the trial the evidence adduced in support of the complaint must be that of witnesses which might materially differ from that contained in ex parrte affidavits.
    2. Same—When proof of misrepresentations is immaterial.

      Held, that the fact that goods included in the assignment were obtained from the plaintiffs by the defendants by means of false representations, furnished no ground for setting aside the assignment as fraudulent and void, there being no connection whatever between those misrepresentations and the assignment.
    Appeal from a judgment recovered on trial before the special term.

      B. F. Einstein, for app’lts; Blimenstiel & Hirsch, for resp’ts.
   Daniels, J.

The judgment adjudges a general assignment made by the defendant Jacob Kapp to the defendant Dyett, to be fraudulent and void against the plaintiffs as judgment creditors of Kapp. Their judgments were recovered after the execution and delivery of the assignment, and executions issued against property were returned unsatisfied.

The court, at the trial, determined the assignment to be fraudulent on the disposition which was made of appeals from orders denying motions to vacate attachments issued in favor of the plaintiffs. This decision was made upon affidavits which were deemed to establish the fact that the debtor had disposed of property with intent to defraud his creditors. But it does not necessarily follow from that decision that a judgment should be rendered setting aside the assignment as fraudulent, for upon the trial the -facts are to be obtained from the evidence of the witnesses which may, and often does, vary in important respects from the force and effect attributable to ex parte affidavits.

And that there was a substantial difference between the .affidavits and the effect of the evidence taken upon this trial, is disclosed by an examination of this evidence. Upon the affidavits it did not appear that the debtor had become as a matter of fact indebted to his wife for moneys advanced to him on her account by her mother in the year 1874. And as the transaction between himself and his wife had remained unchanged for a period of ten years, it was considered that the $2,000 drawn by the debtor from his business and paid over to her, the day before the assignment was made, was a fraudulent disposition of his property. And as transactions between the insolvent husband and his wife must be closely watched and scrutinized to protect and preserve the rights of creditors, the conclusion which was then drawn, was sustained by the affidavits.

But upon the trial both the husband and the wife were examined as witnesses, and by their testimony which was not contradicted, it was made to appear that the money was in fact advanced to the husband as a loan on account of his wife, and that an actual indebtedness was created which, he was from time to time requested to pay, but did not do so on account of his financial circumstances not permitting that to do be done. This evidence was sufficient to repel the presumption supported by the affidavits, and to sustain the act of the husband in paying this sum of $2,000 to his wife, as that was done on a legally existing indebtedness. And that the money had been in fact so paid quite satisfactorily appeared by the evidence on the trial. A residue of the indebtedness still remained unpaid and that was preferred by the assignment as it lawfully might be under these circumstances.

It was, however, found by the court that a preference amounting to the sum of $589.80 in favor of the debtor’s son Oscar was made, notwithstanding the statement of the debtor that his children worked for him without pay. This finding is not expressed very clearly, but it seems to have been intended by it to find the fact that this preference was unlawful for the reason that the debtor’s children worked for him without compensation. The preference itself proceeds upon the statement that the debtor was owing his son $313.15 for money loaned, and $276.65 for services. And this might be sufficient to sustain the judgment, if in fact no such indebtedness existed in favor of Oscar against his father But the trial proceeded upon the concession of the plaintiff’s counsel that there was no dispute in the case except as to the $2,000 paid to the debtor’s wife and the auction sales, and the representations made when the debts for goods were contracted. This concession dispensed with the production of evidence to prove the existence of the indebtedness of the debtor to his son.

It could very well have the effect, as it probably did, of creating the conviction that such proof would not be required to sustain the correctness of this preference. And no such evidence was given on the trial of the action beyond the general statement of the debtor that he was in debt to his son for the amount in which he was preferred in the assignment.- Beyond that the justness of this preference was not made the subject of trial, and the failure to make it so was warranted by this concession of the plaintiff’s counsel. After that the court was not at liberty to find the fact to be that this was an unlawful preference. It may be that such was its character, but if it was, it cannot be so determined upon the evidence contained in this case. And as this finding in reality is the important one upon which the judgment depends, as the indebtedness to the debtor’s wife was established, the judgment under the circumstances was not authorized by it.

Heither was it by the auction sales, which the debtor made prior to the time of the execution of the assignment, for after deducting the losses incident to those sales it appeared from the books that the proceeds had been all accounted for.

The case of Clark v. Taylor (37 Hun, 312), has been relied upon as sustaining the theory that the assignment could very well be avoided as fraudulent because of the misrepresentation made by the debtor to his creditors in purchasing goods from them. But there was no connection whatever between these misrepresentations and the making of the assignment, as the fact appeared to be, in that case._ There the promise relied upon, by which the debtor obtained an extension of time before judgment could be entered against him, was in effect that the creditors should not in the meantime be prejudiced by án assignment of the debtor’s property. That promise was violated by him in the assignment afterwards made, and it was held by the court that the assignment should on that account be vacated and set aside. In this case no such assurance in any form was given to the creditors. The debtor probably did misrepresent his financial condition, and in that manner may have designed to defraud his creditors out of the price of the goods which they sold him. And if he did they were entitled to redress by a proper action against him founded upon his misrepresentations. But the statements which were made by him, assuming them to have been as they were related by the witnesses, contained no assurance that he would not afterwards assign his property for the benefit of' his creditors. No such assignment was alluded to, and it was not a breach of faith between himself and his creditors that he should afterwards make it as he did. The transactions were disconnected throughout, and the representations consequently formed no legal ground for interfering with the assignment.

As the case appeared at the trial it depended upon the legality of the preference in favor of the debtor’s son Oscar, and that preference the plaintiffs were not at liberty to assail after the concession made by them in the course of the examination of one of the defendants’ witnesses. It may be that upon another trial this preference will be proven to be without foundation, and if that shall be the fact it may invalidate the assignment. But until such proof shall be given in the case, or some other, establishing other fraud on the part of the judgment debtor, the action cannot be sustained.

The judgment'should be reversed and a new trial ordered, with costs to appellants to abide the event.

Van Brunt, Oh. J., and Brady, J., concur


text:
    Annie Cornell, Resp’t, v. Emigrant Industrial Savings Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Sayings bank—By-laws on—What will not pbotect bank nbom consequences ON UNAUTHOBIZED PAYMENT.
    The by-laws of a savings bank provided among other things that the pass-book should be the voucher of the depositor, and that possession of the pass-book should be sufficient authority to the bank to warrant any payment made and entered in it. That although the bank would endeavor to prevent fraud on its depositors, yet all payments made to persons producing the pass-book issued by the bank should be valid payments to discharge the bank. Held, that notwithstandingtheprotective character of the by-laws as to payments", the bank was not relieved from the exercise of that investigation necessary to carry out the undertaking expressed by the words, that it: “ would endeavor to prevent frajid on its depositors,” and that failing the use of such care as thereby provided an unauthorized payment made to a party, other than the owner, who presented the pass-book would not discharge it.
    2. Receipt—Open to explanation.

      Held, that a receipt was always open to explanation.
    3. Same—On all claims—When, will not bab action nob sums due at TIME ON SIGNING.

      Held, that a party who upon the payment of a sum of money by the' bank, signed, without reading, a receipt in, full for all claims against the bank, was not thereby precluded from bringing action for other moneys at that time due her at the bank.

      Appeal from judgment entered on verdict and from order denying motion for new trial.

      John E. Develin, for app’lt; Peter Mitchell, for resp’t.
   Brady, J.

This action was brought to recover the sum of $225, the balance of moneys deposited with the defendant’s bank, and remaining to her credit on the 18th of November, 1885. The defense interposed was payment and it was asserted on behalf of the defendant that on the 28th of June, 1886, a woman appeared at their bank with the plaintiffs pass-book and requested the paying teller, to whom she presented the book, to make out a draft for her to sign for the amount named. The teller made out the draft, and after it was signed, the amount of it was paid. The plaintiff upon the same day called at the bank (having having discovered that her pass-book had been taken from her possession' without her authority), and in order to prevent the use of her book to her prejudice, she advised the bank of the circumstance just mentioned, and that she had not signed draft or order.

The by-laws of the bank provide that the pass-book shall be the voucher of the depositor, and the possession of the pass-book shall be sufficient authority to the bank to warrant any payment made and entered in it; and the bank shall not be liable or called on to make any payment without the presenting of the pass-book at its counter, that the proper entry may be made in it; and further that

Although the bank will endeavor to prevent fraud on its depositors, yet all payments to persons producing the passbooks issued by the bank, shall be valid payments to discharge the bank.

It was also set upon as a defense that sometime after the occurences mentioned, the plaintiff called at the bank, claiming the balance of her deposit, $53.94, and made an affidavit in which she stated that she was the owner of $53.94 due on the pass-book, and asked the bank to pay her that sum, and that thereupon the payment was made to her ; and defendants set this up as a good accord and satisfaction.

The defense therefore rested on two propositions.

First. That the payment of the $225 was properly made to the person who presented this book and signed the contract ; and

Secondly. That even if that were not so, the demand and payment of the $53.94 was, under the circumstances, an accord and satisfaction, and discharged any obligation then existing in favor of the plaintiff.

Although the defense interposed was that the pass-book was presented by a woman, nevertheless the evidence on the part of the defendant failed to establish that fact; the officers of the bank who were examined being enabled to state positively in consequence of the numerous transactions occurring on that day whether it was a man or a woman. The evidence on the part of the plaintiff was to the effect that her nephew who was boarding with her took the bank book, and it was assumed that it was he who presented it, and to whom the payment was made. Of course all this evidence was submitted to the jury, and the questions arising from the contentions of the parties, were presented to them for determination.

It was held in Israel v. Bowery Bank (9 Daly, 507), that before a savings bank can successfully resist an action by a a depositor for his deposit which it had paid out to a person who has wrongfullly obtained possession of the book, it must be shown to have exercised reaonable care and prudence in disbursing the money, and

In the case of Allen v. Williamsburgh Savings Bank (69 N. Y., 314), it was held that a by-law of a savings bank Tequiring its best efforts to avoid mispayments, calls for more than ordinary care and diligence. When a savings bank has made rules as to payments to depositors by which it and its customers are to be governed, they being in the nature of an agreement, it is not to be excused for a payment on a forged order until it has shown that it used its best efforts called for under the circumstances of the case to prevent fraud. See also Smith v. Brooklyn Savings Bank (101 N. Y., 608).

In the case of Appleby v. Erie County Savings Bank (67 N. Y , 12), in which it appeared that the defendants had a bylaw similar to that of the defendants herein, it was held that notwithstanding this by-law and the rules which related to it, the bank was not absolved from the exercise of ordinary care.

There is no doubt that the rule deducible from those cases and others which might be cited, is that notwithstanding the protective character of the by-law as to payments, the bank is not relieved from the exercise of that investigation which is necessary to carry out the undertaking expressed by the words : “Will endeavor to prevent frauds on its depositors.”

In this case there is no evidence whatever of any effort on the part of the bank to ascertain whether the person presenting the book was entitled to its custody. No question seems to have been asked, notwithstanding that the teller was requested to prepare the draft, which he did. It may be said that there were no circumstances attending the application calculated to excite the suspicion of the teller, and that this relieved the bank officers from any imputation of negligence. But this does not seem to be a proper response to the accusation. The bank assumed the obligation of ordinary care, and must employ it in all cases where a demand is made. The test could not be made by an examination of the signature if the depositor is able to write, or on interrogation as to the number of the book, or as to the residence and antecedents of the person presenting the draft, which would perhaps be a sufficient compliance with the obligation they have assumed, if nothing suspicious appeared as the result of such examination.

It was said by the applicant’s counsel that if the bank were required to make investigations when payments were made, it would be impossible for it to conduct its business. It is a sufficient answer to that proposition that there is no evidence to show that such a result would follow. But if so, it was one against which the bank would, perhaps, have protected itself by making the payment absolute on the pass-book without any assumption of another duty to the depositor. As an appellate tribunals, however, we are not called upon to legislate upon the subject or to make a contract.

The payment of $53.94, which the appellants insist was an accord and satisfaction, cannot be so regarded. It was a payment of money absolutely due to the depositor, and there was no release executed so far as the record shows; although when the $53.94 was paid to the plaintiff, she signed a receipt in which it was stated that the sum paid was the total amount due. As to that, however, she testified that she was required to sign the receipt which was prepared for her at the bank; but she denies emphatically that the receipt was read to her, or that she had any intention of settling with the bank at all; she only received fifty dollars with the interest due on it, and no more; and that she considered the receipt to be such as she had signed on former occasions. The issues thus created were submitted to the jury; and they found in her favor.

It seems to be settled that one who upon the receipt of a sum of money signs, without reading, a receipt in full of all claims, is not precluded thereby from recovering any other sum due him; and it is a well-established rule that a receipt is always open to explanation.

The charge is not presented by the record and it must be assumed that that the questions of fact, springing from the evidence, to wit: Whether or not the bank exercised proper care in making the payment, and whether there was a good accord and satisfaction (assuming it to have been sufficiently set up in the manner to create an issue), were properly submitted to the jury, as to both of which the findings of the jury were adverse to the defendant.

From an examination of the record, we discover no reason why the judgment should be interfered with.

It must, therefore, be affirmed, with costs.

Daniels, j., concurs.


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    In the Matter of the Estate of Mary Ann Hanley, otherwise called Mary Ann O’Reilly, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Marriage—Presumption that intercourse is innocent and not IMMORAL.
    A motion was made to revoke and vacate letters of administration issued to one as the husband of the deceased, on the ground that the marriage relation did not exist between them. It was conceded that there was no ceremonial marriage between the parties, but it was proved that the intestate and the party to whom letters had been granted had lived together for a considerable time before her decease. Held, that such intercourse should be presumed to be rendered innocent by a marriage contract and not to bet immoral.
    2. Same—Presumption—Evidence supporting.
    What evidence will sustain the presumption of a marriage in the absence of any formal ceremony,
    3. Same—Testimony—Reference—Surrogate—Power of.

      Held, that the testimony on the matter, having been taken before a referee, subject to the decision and disposition of the surrogate, he was empowered to adopt a conclusion that the parties sustained toward each other the relation of man and wife.
    4. Same—Reversal of order for improper exclusion of testimony.

      Held, That competent testimony, on the part of the moving parties, having been excluded on the hearing before the referee, an order denying the motion of the applicants must be reversed and an order made sending the case back to the referee with directions to take that testimony and any other offered by either party on the question of the marriage.
    5. Same—Evidence—Exclusion under Code Crv. Pro., § 829—Interest MUST BE PRESENT AND FIXED.

      Held, that the exclusion of the testimony of a witness under Code Civ. Pro., § 829, is warranted by a present fixed interest and not one remote and contingent.
    Appeal by James Toole and others, next of kin, from an order denying a motion to revoke' and vacate letters of administration issued to James O’Reilly.

      Johnston & Tilton, for app’lts; A. Latham Smith, for resp’t.
   Daniels, J.

The intestate died at 510 East Thirteenth street, the place of her preceding residence, on the 28th of April, 1880, and letters of administration were issued upon her estate to James O’Reilly, as her husband. She left no children and her first cousins were her next of kin. They applied to the surrogate to vacate and set aside the letters of administration, upon the allegation that, the intestate was not at any time the wife of O’Reilly. This was denied by him, he asserting that he was her husband at and before the time of her decease. It was thereupon referred by the surrogate to a referee to take the proof upon this controverted allegation, and to return it, with his opinion upon it. to the surrogate. The referee took a large amount of testimony and stated his opinion, or conclusion, to be that the intestate and administrator never sustained the relation of husband and wife to each other. It was conceded, in the course of the proceeding before him, that there was no ceremonial marriage between the parties, and whether they had been married in fact by their own-agreement and conduct was the controverted subject before the referee. The surrogate took a different view of the evidence from that which had impressed itself on the mind of the referee, and held that it did establish a marriage between these parties, and because of that fact the application to vacate or set aside the letters of administration was denied.

It was proved beyond controversy that the intestate and O’Reilly lived together for a considerable period of time before her own decease. And from that circumstance a presumption did arise that they sustained the relation of husband and wife to each other, without the formal solemnization of their marriage, as they very well might under the authorities in this state, considering and determining the effect of the conduct and declarations of such parties. Starr v. Peck (1 Hill, 270), where it was said in the course of the opinion of Cowen, J., that it is “the presumption that the parties would not indulge in a connection which was immoral, not to say criminal, especially when they might themselves alone have rendered it innocent by a marriage contract per verba de prcesenti, we are to presume against a notorious act of immoralty almost as strongly as we would against the commission of a legal crime.” Id., 272. And this seems to be conceded to be the law in Badger v. Badger (88 N. Y., 546). And it certainly was not doubted in Harbeck v. Harbeck (102 N. Y., 714; 2 N. Y. State Rep., 457) But after all it is at most only a presumption which must yield to other facts when they are proved by evidence in direct conflict with its existence. And it was to make such proof that the witnesses on behalf of the petitioners were examined before, the referee.

Their testimony consisted, so far as it was material, of statements made both by the intestate and O’Reilly to the effect that they were not married, and of the fact that before her burial her name of Hanley was placed upon her coffin, and that in the certificate made by the physician her name was given as Mary Ann Hanley, and she was described as being a fvidow. This certificate was made on information obtained by the physician from O’Reilly himself. And it was further stated by some of the witnesses examined on. behalf of the petitioners that she had been known only by the name of Hanley down to the time of her decease, it was added by one of the witnesses that O’Reilly stated to-him that he was a boarder there and paid his board regularly to Mrs. Hanley. And after her decease it is stated by the witness Mary Devin that she asked O’Reilly if he was married to Mrs. Hanley, and he said that he was not. And the witness James Toole testified that in a conversation taking place three or four days aftr Mrs. Hanley’s death he asked O’Reilly for the keys of the room, when the latter replied that he would give them up the next day, when he would get an expressman to move an old trunk and a valise, and an old blanket he had when he was on board a ship, which was the extent of the claim made by him.

This evidence was met by denials ón the part of O’Reilly himself and by testimony obtained from a still larger number of witnesses, that O’Reilly and the intestate were in the habit óf addressing each other as husband and wife; that she spoke of him on a number of different occasions as her husband, and at one time stated that she had been married to him for a period of over four years, and that she did not desire to divulge the fact until after her father should be dead a year, and for that reason she went by the name of Mrs. Hanley. And her father had not been dead for the period of a year at the time of her own decease. It was also stated by one of his witnesses that O’Reilly and the intestate attended her father’s funeral together; that they sat together in the church, and went to and from the burial in the same manner. It was also added by one of his witnesses that she was intoxicated at the time referred to by him when she stated that she was married to O’Reilly and that after she became sober she denied that fact. Near the time of her last illness her attendant physician testified that he was requested to attend her by O’Reilly who asked him to go and see his wife. He accordingly went to her residence but found no Mrs. O’Reilly there, and finally she opened the door and stated that she was the person for whom he was in search. After her decease he obtained the information for making his certificate from O’Reilly, who directed him to insert the name of the intestate as Mary Ann Hanley. The witness then observed that it was a very extraordinary thing that he should be treating a lady called Mrs. O’Reilly and that her name should then be given to him as Mary Ann Hanley, but that no reply was made to this remark. This is the general character of the evidence taken before the referee, with further testimony in behalf of O’Reilly that they were reputed to be husband and wife by the witnesses who were interrogated upon that subject, and who were acquainted with these persons. But in answer to this testimony other evidence was produced on behalf of the petitioners stating the repute to be the other way, that they were not husband and wife.

The preponderence of evidence seems to have been, slightly to say the least, in favor of O’Reilly. And as the testimony was taken subject to the decision and disposition of the surrogate, he was empowered under this view of it to adopt the conclusion that O’Reilly was the husband of the intestate.

But while that decision may have had the support of the evidence it did not justify a denial of the application, for exceptions have been taken on the hearing to the exclusion of evidence by the referee, which should have been received by him. And until that evidence is in the case, and the ruling corrected in this manner, it will not be in a. condition for final decision.

It was proposed to be shown by Mary Devin, who was a second cousin of the intestate, that she had a conversation with her during her last illness regarding her relations with O’Reilly. This was objected to on the ground that the witness was incompetent to relate the conversation under section 829 of the Code of Civil Procedure, and her evidence was excluded under the construction that she was interested in its result. But she had no other interest than that of being entitled to participate in the estate as one of the next of kin of the intestate after the decease of all the first cousins of the latter, and that, on account of their number, was so remote as scarcely to arise to the dignity of a possibility. What this section of the Code has done in the way of directing the exclusion of witnesses is restricted to those who are interested in the action or proceeding. That exclusion depends upon a present fixed interest, not one remote and contingent, as was the mere possible interest of this witness. That was also the rule under the preceding system of practice excluding interested witnesses as incompetent. It never was applied to the exclusion of the testimony of a witness having but a bare possibility of becoming interested at some future period of time. And the referee therefore erred in the ruling excluding the testimony proposed to be given by this witness. And as it related to a conversation with the intestate during her last illness, it may have been entirely controlling over this controversy. A like ruling was made excluding a conversation with the same witness proposed to be shown to have taken place on the 7th of April, 1880. The referee also struck out as incompetent an answer given by the witness Mary Ann Fagan, testifying that she did not believe the intestate was married, although she had previously received information that the fact was otherwise from the intestate. But this ruling was corrected by an answer afterwards received and retained to the same effect. A very large number of other exceptions were taken in the progress of the hearing before the referee, but these seem to be the only ones deserving of any special attention. The evidence proposed to be taken from the witness Mary Devin should have been received, and the order denying "the application to vacate or set aside the letters testamentary should be reversed, and an order made sending the case back to the referee, with directions to receive this testimony, and any other additional evidence bearing upon this controverted marriage which may be offered by either party, and the costs of the appeal should abide the final result of the proceeding.

I concur in the result, without expressing any opinion as to whether or not the proof was sufficient to justify a finding that at any time a contract of marriage had been entered into.

Van Brunt, Oh. J., concurs; Brajdy, J., concurs in the result


text:
    Charles Hingston, Resp’t, v. Jose R. Miranda, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Practice—Attachment—Sufficiency of affidavit.
    The affidavit on which the attachment was granted stated that deponent was a member of a firm in New York city, and was the correspondent of the plaintiff in the action, who resided in England; that the defendant resided in Spain, and then states, on information and belief, the cause of action, and that the sum due to plaintiff was over and above all counterclaims, and that deponent’s knowledge and the grounds of his belief were correspondence with the plaintiff and cables received from the plaintiff by deponent’s firm. Neither the letters nor copies of them were produced. Held, that the affidavit was insufficient. That it contained no sworn evidence .that a debt had been created or that the amount claimed was due to plaintiff over and above all counter-claims.
    Appeal from order denying motion to vacate attachment.
    The following is the affidavit referred to in the opinion: “Horace W. Day, being duly sworn says, that he is a member of the firm of Sgobel & Day, and carries on business in the city of New York, and is the correspondent of Charles Hingston, the plaintiff in this action, who resides in the city of London, England. That the defendant above named resides at Padules, Almería, Spain, and is a nonresident of the state of New York, and deponent is informed and believes that a cause of action arising upon contract for damages for the breach of a contract, other than a contract to marry, exists in favor of said plaintiff against the said defendant for moneys loaned, advances made and services rendered by the said plaintiff to the said defendant, at his request, amounting to £450 sterling, which sum is of the value of $2,189.92, and that said sum is due to the said plaintiff from the said defendant over and above aH counter-claims known to plaintiff, and that deponent’s knowledge and the grounds of his belief are correspondence with the said plaintiff and cables received from the plaintiff by deponent’s firm informing them of the matters aforesaid.
    That the plaintiff is about to commence an action against the defendant for the cause above stated by issuing the summons hereto annexed, and that no previous apphcation for an attachment has been made herein. ”

      Jose G. Morales, for app’lt; Geo. A. Black, for resp’t.
   Per Curiam.

The affidavit on which this attachment was issued was whoUy insufficient as proof of the facts upon which alone the law aEows so harsh a proceeding to be taken by a creditor against his debtor. It contains no sworn evidence that a debt has been created or that the amount claimed is due to the plaintiff over and above all counter-claims, and is no more than a repetition of unsworn statements made by the plaintiff or in his behalf to the person making the affidavit. In fact it does not amount to as much as that, for the statements themselves have not been set forth in the affidavit showing that they had been followed by the person who made it. The case is clearly within those of DeWeerth v. Feldner (16 Abb., 295); Marine National Bank v. Ward (35 Hun, 395); Gribbon v. Bach (35 Hun, 541); and Buhl v. Ball (41 Hun, 61; 2 N. Y. State Rep., 270).

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements.