text:
    Ella J. T. Roche, Resp’t, v. Brooklyn City and N. R. Company, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Evidence—Statement by party that he suffers pain.
    The bald statement, made iong after an injury by the party injured to a third person, that he suffers from pain, ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain.
    2. Same.

      Held, also error to permit such a witness to prove declarations of plaintiff that her arm pained her very much, even though at the time she showed her arm, and it was swollen and red The appearance of the arm he could describe, but her declaration that it pained her very badly is mere hearsay, and should not have been permitted.

      Samuel D. Morris, for app’lt; George W. Roderick, for resp’t.

       Reversing 34 Hun, 631, mem.

   Peckham, J.

—The only question in this case arises upon the admission of the testimony of a third party that the plaintiff, some days after the happening of the accident which caused her injury, complained that she was suffering pain in her injured arm. The witness did not testify that on these occasions the plaintiff screamed or groaned, or gave other manifestations of a seemingly involuntary nature indicative of bodily suffering, but he proved simple statements or declarations made by plaintiff, that she was at the time of making them suffering pain in her arm. The plaintiff was herself sworn, and proved the injury and the pain. The condition of the arm the night of the accident was also proved; that it was very much swollen and black all around it, and subsequently red and inflamed, and continued swollen and inflamed more or less for a long time. Tne defendant challenges the evidence of complaints of pain thus made, on the ground that it was incompetent, and the argument made was that the evidence as to the injury and its extent could not be thus corroborated by mere hearsay.

Prior to the time when parties were allowed to be witnesses, the rule in this class of cases permitted evidence of' this nature. Caldwell v. Murphy, 11 N. Y., 416; Werely v. Persons, 28 id., 345. These cases show that the evidence was not confined to the time of the injury, or to mere exclamations of pain. The admissibility of the evidence was put, in the opinion of Judge Denio, in 11 N. Y., supra, upon the necessity of the case, as being the only means by which the condition of the sufferer as to enduring pain could, in many instances, be proved. Substantially the same class of evidence was admitted in England, and for the same reason. See cases cited in 11 N. Y. In Massachusetts, too, the same rule was applied.' Bacon v. Charlton, 7 Cush., 581; cited and approved in Roosa v. Boston Loan Co., 132 Mass., 439.

After the adoption of the amendment to the Code, permitting parties to be witnesses, the question under discussion was somewhat mooted in Reed v. Railroad, 45 N. Y., 574, by Allen., J., in the course of his opinion, although the precise point was not before the court. The question there under discussion was as to the correctness of permitting the plaintiff to prove his declarations made at the time he was doing some work, to a third person, as to the state of his health. That is not exactly like the case of complaints, made, not as to a state of health, but as to a then present existing pain at the very spot alleged to have sustained injury, and proved so by other evidence; still the remarks of Judge Allen, on this kind of evidence in general, bear strictly upon the matter herein discussed. He reviewed in his opinion some of the above cases and others, and claimed that the courts had admitted the evidence from the necessity of the case, as being the only method 'by which the condition of the party could be shown fully and completely, not only as to appearances, but also as to suffering. But there was no agreement by the court upon that branch of the case, the judgment going upon another ground.

The case of Hagenlocker v. Brooklyn R. R. (99 N. Y., 136) decides that, even since the Code, evidence of exclamations indicative of pain made by the party injured is admissible. The case does not confine proof of these exclamations to the time of the injury. The question was asked of the plaintiff’s mother: “How long after injury was your daughter confined in the bed?” “ Sire was for about four weeks.” “What expressions did she make, or what manifestations, showing that she suffered pain ?” This shows there was no confinement of the evidence to the time of the injury. The evidence given, however, was of screams when the plaintiff’s foot was touched, and of her exclamations of pain when even the sheet was permitted to touch the foot. The evidence was permitted on the ground that it was of a nature which substantially corroborated the plaintiff as to her condition. Having thus admitted evidence of this kind since the adoption of the Code amendment permitting parties to be witnesses, the question is whether there is such a clear distinction between it and evidence of simple declarations of a party that he was then suffering pain, but giving no other indications thereof, as to call for the adoption of a different rule. It seems to us that there is. . Evidence of exclamations, groans and screams is now permitted, more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the party by an eye-witness than could be given in in any other way. It characterizes and explains such condition. Thus, in the very last case cited, it was shown that the foot was very; much swollen, and so sore that the sheet could not touch it. How was the condition of soreness to be shown better than by the statement that, when so light an article as a sheet touched the foot, the patient screamed with pain ? It was an involuntary and natural exhibition and proof of the existence of intense soreness and pain therefrom. True, it might be simulated, but this possibility is not strong enough to outweigh the propriety of permitting such evidence as fair, natural and original corroborative evidence of the plaintiff as to his then physical condition. Its weight and propriety are not, therefore, now sustained upon the old idea of the necessity of the case.

But evidence of simple declarations of a party, made some time after the injury, and not to a physician for the purpose of being attended to professionally, and simply making the statement that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration, and of a most dangerous tendency, while the former necessity for its admission has wholly ceased. As is said by Judge Allen in Reed v. Railroad (supra), the necessity for giving such declarations in evidence, where the party is living and can be sworn, no longer existing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should also cease. With the rule as herein announced there can be no fear of a dearth of evidence as to the extent of the injury, and the suffering caused thereby. The party can himself be a witness, if living, and, if dead, the suffering is of no moment, as it cannot be compensated for in an action by the personal representative under the statute, and the exclamations of pain, the groans, the sighs, the screams, can still be admitted. But we are quite clear that the bald statement, made long after the injury, by the party, that he suffers from pain, ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain. For these reasons, the evidence of Mr. McElroy, as to the plaintiff’s declarations of existing pain, when they were walking in the street together, long after the accident, should not have been received. It was error, also, to per • mit the same witness to prove declarations of the plaintiff that her arm pained her very much, even though at the same time» she showed her arm, and it was swollen and red. The appearance of the arm he could describe, but her declaration that it pained her very badly is mere hearsay, and should not have been permitted.

The judgments of the general term and circuit should be reversed, and new trial granted; costs to abide event.

AH concur, except Danforth, J., dissenting.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Thomas Rutherford, Resp’t, v. Village of Holly, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Municipal corporations — Liability for increased flow of water THROUGH IMPROVEMENT OF STREET.
    Where the natural drainage from a street was upon plaintiff’s land, the defendant is not liable for injury caused by increased flow thereof through the construction of a gutter and sluice for the protection and improvement of the roadway, even though such improvement diminished to some extent the waste by soakage and evaporation, and thereby increases somewhat the quantity which collects at the sluice, and discharges ultimately on plaintiff’s lot.
    Appeal from order and judgment of supreme .court, general term, fifth department, reversing judgment of referee dismissing the complaint, and ordering a new trial before another referee.

      John H. While, for app’lt; John Cuneen, for resp’t.

       Reversing 36 Hun, 638, mem.

   Andrews, J.

The fact is uncontroverted that the natural drainage of the surface water, from the northeasterly side of the hill over which Batavia street was constructed, was through a depression at the foot of the hill, on Batavia street, which extended over the Cary lots and the lot of the plaintiff, from whose lot, prior to 1862, the water was discharged into a gully or water-course at the northwesterly corner of the plaintiff’s tannery. It is also evident that the injury which the plaintiff has sustained to his tannery building, since that date, from the flow of the surface water over his premises, has resulted from the closing up of the outlet by the wall erected by the state, whereby the water was turned from its natural course and thrown against the side of the tannery. But this is not decisive against the right of the plaintiff to maintain the action. It is claimed that the village, by the grading of Batavia street in 1863, and the construction of gutters therein, and of the sluice across Batavia street, has increased and facilitated the collection and discharge of surface water at the lowest point in the street, and that, as a consequence, a greater amount of water than naturally would have collected there has been cast upon the Cary lot, and from there upon the premises of the plaintiff.

The finding of the referee, which is not without evidence to support it, negatives this contention. The referee, in his twentieth finding, in substance finds that the water discharged from the sewer-plate or grate over the sluice on the east side of Batavia street passes onto the plaintiff’s premises from the Cary lot, at about the same place that the water has at all times since 1824, when said street was laid out, passed upon the same; that it is the drainage from substantially the same territory, and that, with the same amount of rain-fall, “no greater amount or volume of-water passes or is discharged onto plaintiff’s premises from the sluice (since said Cary’s sewer was closed) than did pass or was discharged onto the same at all times since said streets (Batavia and State streets) were laid out.

It is not claimed that the course or amount of surface water which found its way to the foot of the hill before Batavia street was laid out in 1824 was increased by the original construction of the street. The finding, therefore, is equivalent to a finding that the present discharge from the sluice does hot exceed the natural drainage, at this point, of the surface water of the adjacent territory. It is insisted, however, that by the construction of the gutter on the north side of Batavia street, and the sluice across the street, the water is made to flow in an artificial channel, and is collected in a body and cast upon the plaintiff’s lot. ■ The gutter and sluice were constructed for the protection and improvement of the roadway. It is not improbable that the turnpiking of the street, and the construction of the gutters, diminish to some extent the waste, by soakage and evaporation, and thereby increase somewhat the quantity of water which collects at the sluice, and which is discharged onto the Cary lot, and ultimately on the plaintiff’s lot. But it would be quite unreasonable to hold that every change in the natural surface or condition of land, made in the improvement of a street or highway, which to any extent increases the flow of surface water on adjacent premises, constitutes an actionable injury.

The case of Noonan v. City of Albany (79 N. Y., 470), and cases of kindred character, establish no such unreasonable and inconvenient doctrine. But it is said that the water, by the acts of the defendant, is thrown upon the plaintiff’s lot in a body, whereas before it was dispersed over the ’ surface, and was absorbed, doing comparatively little injury. '• But there is no finding that the manner of discharge has been materially changed by the acts of the defendant, and such a finding would have been in conflict with some of the evidence, although it might have been warranted by other evidence. It is true that it is found that the water passes onto the plaintiff’s lot from the Cary lot substantially in a body. But this finding is made in connection with another finding, that the water now passes over the surface of the Cary lot at the lowest point, before reaching the plaintiff’s lot. The defendant is not responsible for the manner in which the water flows over the plaintiff’s lot, unless it is attributable to some act of the defendant. This question was controverted on the trial.

The Cary sewer, which connected with the sluice, was closed in 1879. It is found that since that time no water has passed through it, and the water which now reaches the plaintiff’s lot first passes through the sluice across the road to the east side thereof, where it is interrupted by the wall or face of the closed Cary sewer, and escapes by “welling up ” through the sewer plate or grate, and thence passes over the surface of the Cary lot, and onto the lot of the plaintiff. The construction of the sluice probably facilitates the passage of the water from the roadway, but it was not shown, or at least it was not shown by uncontradicted evidence, that the construction of the sluice, or the manner in which the water was discharged from it, affected materially the flow across the plaintiff’s lot, from what it originally was before the sluice was constructed. It is claimed that the excavations in the street and adjacent lots, made by the state in 1862, for canal purposes, changed to some extent the direction of the drainage, and that the village had no right afterwards, by turnpiking the street, to alter, to the prejudice of the plaintiff’s lot, the.surface of this “new earth” created by the canal authorities, and that, in determining the rights of the parties, this new condition must be regarded in the same way as though it was the original and natural condition of the land. It is a sufficient answer to this claim that there is no satisfactory evidence that the act of the defendant, in restoring the highway, made any substantial change in the direction or volume of the surface water, unfavorable to the plaintiff. But at all events we are of opinion that if the defendant, in improving the highway, did not increase the flow of surface water on the plaintiff’s lot beyond what it was prior. to the excavation, they committed no wrong to the plaintiff.

Our conclusion, after a careful examination of the case, is adverse to the general term. The general term reversed the judgment of the referee, on the ground that the facts found by him showéd an actionable injury, within the case of Noonan v. City of Albany, supra. We differ with the general term, on the merits, simply as to the construction of the findings of fact by the referee, which are numerous and complicated.

We think there are no valid exceptions to evidence. The order of the general term should therefore be reversed, and the judgment on the report of the referee affirmed.

All concur.


author: Rapallo, J.

text:
    Henry Clews et al., App’lts, v. Bank of New York National Banking Association, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Banking—Certified draft—When altered.
    On the trial of an action upon an altered draft, certified by defendant, but the payment of which had been ordered stopped by the maker, after such certification, plaintiff’s counsel stated in opening that he expected to prove that before taking the draft, plaintiff asked defendant’s teller if the certification was good, and was answered “ yes,” after careful examination by him; that he expected to prove that it was the usage of banks in the city of New York for the teller to compare the draft with the entry in the certification book and with the book of stopped payments, and that lie did not do this, and that according to the usage the question related not merely to the marks of certification, but to the draft as certified. Whereupon the judge dismissed the complaint, on motion of defendant. Held, error.
    2. Same.

      Held, that without regard to the admissibility of evidence of usage, the plaintiffs had a right, under the circumstances offered to be proved, to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification at the time it was exhibited to the teller, or only to the genuineness of the marks of certification, and also on the question whether it was culpably negligent, under the circumstances, to answer the question without referring to the certification book and the book of stopped payments, which referred to the draft in question by its number, and would have disclosed the fraud.
    3. Same—Appeal—Divided court.
    When the court is divided, as it was on the first appeal, and the majority concur simply for reversal, it is not safe to treat anything as having been adjudicated, except the precise point in respect to which error in the judgment of the court below was made to appear.
    4. Same—Complaint dismissed on opening of counsel.
    Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made, on the specific ground that it is not admissible under the pleadings.
    The Commercial National Bank of Chicago, on the 6th day of January, 1879, sold and delivered to one Wirt Dexter a draft on the defendant for $254.50, and numbered 73,436. The draft was presented to the paying teller of the defendant at its banking house in New York city on the 15th day of January, and by him stamped, “Certified, Bank of New York, N. B. A.,” to which he added his signature, “Meany.”
    On February 10, 1879, the said Commercial National Bank of Chicago, having previously written to defendant, requesting it to stop payment on said draft, wrote to the cashier of defendant, stating that the draft had been indorsed and sent to the indorsee, but had not been received, and again requested the defendant to stop payment of the draft which you say you have certified. The defendant thereupon instructed its paying teller not to pay the draft. On the twenty-fifth day of February, a draft, drawn by the Commercial National Bank of Chicago upon the defendant, bearing the number 73,436, but payable to the order of plaintiffs, for the sum of $2,540, was offered at the office of the plaintiffs in payment for certain bonds, which the person presenting the said draft proposed to purchase. The draft bore the marks of certification before mentioned. Thereupon plaintiffs sent a messenger to the defendant’s banking-house with the draft, and presented it to the paying teller, in behalf of the plaintiffs, and asked him if the certification of the said draft was good. At the time this question was asked of the teller, the bank had a book, kept within ten feet of his desk, in which was kept a list of certifications, and opposite the entry which related to draft No. 73,436 was a memorandum: “Stop payment, see letter February 10, 1879.” The paying teller also had a book in which he made, or caused to be made, the entry that payment of draft No. 73,436 had been stopped. The paying teller carefully examined the said draft, both face and back, and, without comparing the same with his books, answered “Yes.” Thereupon, the plaintiffs took the draft in good faith, and delivered bonds and money to the amount of the face of said draft. On the fourth day of March, 1879, the draft was presented to the defendant, which refused payment thereof, and so wrote on the face of it. The plaintiffs again demanded payment on March fifth, and, on a second refusal, brought this action.
    On the trial the plaintiffs had judgment, which was affirmed by the general term. On appeal to this court, a new trial was granted, and, on the new trial, the complaint was dismissed after plaintiffs had opened. The judgment was affirmed by the general term, and the plaintiffs again appeal to this court.

      Esek Cowen and Abbot Bros., for app’lts; Wheeler H. Peckham, for resp’t.
   Rapallo, J.

When this case was first-before us (89 N. Y., 420), it came up on an appeal by the defendant from a judgment rendered, in favor of the plaintiffs, on a verdict in their favor. That judgment was reversed, and necessarily, there having been manifest error in the charge of the judge, who instructed the jury, in substance, that, if the draft was presented to the teller of the defendant, and he answered the question of the messenger who presented it in the manner testified to by the messenger, the plaintiffs were entitled to recover. That instruction was, in effect, a charge that, if the messenger asked the teller whether the certification was good, and the teller answered in the affirmative, that answer of itself, as matter of law, rendered the defendant liable. Under that charge the jury were relieved from considering the circumstances proved upon the trial, and from construing the import of the question and answer, and were constrained to render a verdict for the plaintiffs, provided they believed the testimony of the messenger as to the answer which he received. They were not called to pass upon any of the questions arising upon the evidence, as to the notice which the bank had received in relation to the draft, and the entries relating to it contained on its own certification-book and book of stopped checks, nor upon any question of negligence on the part of the teller in failing to refer to the books mentioned. The charge held that the statement of the teller that the certification was good constituted in itself, as matter of law, an absolute estoppel upon the defendant, which precluded it from disputing its liability upon the certification, for the full amount or the draft as raised subsequent to the certification, without reference to ' any other question. This a majority of the court held to be error. It by no means follows, however, that that decision established that the defendant was absolutely exempt from liability, and could not be held responsible, even if the defendant, at the time the teller said that the certification was good, had notice that it had ceased to be good by reason of the subsequent alteration of the draft, or had in its possession the means of ascertaining that fact, and the jury should find that it was guilty of culpable negligence, under the circumstances, in omitting to resort to those means of information, and thus misled the plaintiffs to their injury. That is an entirely different question from the one which was adjudicated on the former appeal.

On the trial now under review the plaintiffs did not rest upon the teller’s answer alone, which on the first trial was erroneously held to be, of itself, sufficient to make the defendant liable. They sought to go further, and to show that, before answering the question, the teller examined the whole of the "draft, both face and back, and everything upon it. It bore plainly on its face the number 73,436. The complaint stated the facts relating to the history of the draft, and the notice to the defendant that a, draft bearing that number had miscarried, and requesting the defendant to stop payment of it, and the other facts set forth in the report of this case on the first appeal (89 N. Y., 420); and on the last trial the counsel for the plaintiffs opened the case, stating fully these facts, and,_ after a motion to dismiss on the complaint and opening, the counsel made a further opening, stating that he expected to prove that, in the ordinary usage of banks in the city of New York, it was the duty of the teller, under the circumstances of this case, before answering the question asked of him, to compare the draft with the entry in the certification book, and with the book of stopped payments, and the entries made therein, which identified the draft by its number, 73,436, and that the teller was guilty of gross negligence in answering the question without first making the comparison; also that, according to the usage, the question asked the teller in this case related, not merely to the marks of certification, but to the draft as certified; and he also asked to go to the jury on the question whether the teller examined the whole draft, and whether his answer referred to the draft as certified, or to the marks of certification only. After this further opening, the defendant’s motion to dismiss the complaint was granted, and the plaintiffs’ request to go to the jury denied; and the plaintiffs’ counsel excepted.

We think that the court erred in thus dismissing the complaint. Without regard to the admissibility of evidence of usage, the plaintiff had a right, under the circumstances offered to be proved, to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification, at the time it was exhibited to the teller, or only to the genuineness of the marks of certification, and also on the question whether it was culpably negligent, under the circumstances, to answer the question without referring to the certification book and the book of stopped payments, which referred to the draft in question by its number, and would have disclosed the fraud. It was promptly discovered on the following day, when the draft was presented for payment. Neither of these questions was necessarily involved in the case as presented to us on the first appeal. The judgment then under review could not have been sustained on the ground that the jury might have found for the plaintiffs on the two questions now referred to, and the reversal of the judgment cannot therefore be regarded as an authoritative decision that they, were not proper for the consideration of the jury. When the court is divided, as it was on the first appeal, and the majority concur simply for reversal, it is not safe to treat anything as having been adjudicated, except the precise point in respect to which error in the judgment of the court below was made to appear, which in this case was that the judge charged the jury, as matter of law, that, if they found that the question whether the certification was good was asked of defendant’s teller, and answered as testified to by the messenger, the plaintiffs were entitled to recover. That this charge was erroneous is all that was necessarily decided on the first appeal,

The counsel for the respondent now makes the point that, in reviewing the decision dismissing the complaint, we must consider only the facts stated in the complaint itself, and that the further facts referred to in the opening of the counsel, and in his offers of proof, cannot be considered. We do not think this .point tenable. Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings. No such specific objection appears to have been made. If it had, it might have been met by an amendment of the complaint if necessary.

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

Rtjger, Ch. J., Andrews, Danforth and Finch, JJ„, concur; Earl, J., not voting; Peckham, J., not sitting.


author: Peckham, J.

text:
    Loftus Wood, App’lt, v. Peter B. Armory, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Mistake in judgment—Not fraud to conceal from other party.
    Plaintiff was defendant in an action in which a referee gave judgment against him, October, 1860, for nearly $30,000, which was affirmed in this court, January 3, 1873. Previous to the entry of judgment defendant became the owner of the claim on which it was founded, and was substituted as plaintiff prior to the affirmation in this court Plaintiff, in May, 1872, was advised that the referee had made a mistake of $10,600, and now asks that that sum be repaid to him, on the ground that the original plaintiff and Armory colluded and conspired, in that knowing of the mistake, they did not inform this plaintiff. On demurrer, the complaint was stricken out. Held, no error.
    2. Same—Conspiracy.
    An agreement between two persons to be silent, where each has the right so to be, is not made illegal by alleging that it was done pursuant to conspiracy and collusion between the parties, without going further, and showing that the concealment was but one step in carrying out a conspiracy which was unlawful.
    Appeal from general term of the supreme court, first department.

      Sami. J. Crooks, for app’lt; George E. Horne, for resp’t.
   Peckham, J.

The questions herein arise upon a demurrer to the plaintiff’s complaint. The plaintiff in his complaint alleged that prior to October 1, 1860, one Austin Packard commenced an action against him, which was duly referred, and on that date the referee reported in favor of Packard, and judgment was entered in favor of the latter for nearly $30,000. On appeal by the defendant therein, the judgment was modified by the general term, and so affirmed, and the defendant then, and about December 8, 1864, appealed to the court of appeals, and the judgment was affirmed in the commission of appeals in January, 1873; that Amory, this defendant, previous to the entry of the first judgment, became the owner of the claim which Packard had been prosecuting against this plaintiff up to that time, and succeeded to the interest of Packard, and prior to the judgment of the commission of appeals he had been made the party plaintiff" in such action; that such judgment was entered on or about January 3, 1873; that the judgments have all been paid, through executions duly issued to enforce the same; that in or about the month of May, 1872, this plaintiff first was advised of the existence of the mistake hereinafter spoken of, and of the means of verifying the same, and that such mistake did not appear from any of the records in that action, and could only be shown by evidence aliunde; that the action was brought to compel an accounting by this plaintiff with Packard, and on the trial, and in making up his report, the referee made two mistakes of fact, which increased the judgment against this plaintiff by the amount of more than $10,600 at the date of the report, in August, 1860, and these errors of fact became a part of and entered into the judgment above spoken of, and remained forever uncorrected, and the amount thereof was fully paid to the defendant herein, with interest from date of the report, that these errors of fact were wholly attributable to the inadvertence of the referee, that, at the time of the filing of the report, Packard knew of these mistakes of fact made by the referee, and concealed his knowledge from the referee, and from the plaintiff herein, with intent to deceive and defraud the plaintiff; that this error was so concealed by Packard until May, 1872, when Packard, having quarreled with his assignee, Amory, made an affidavit in proceedings in that action, and therein disclosed the mistakes spoken of; that at the time of the transfer of the claim by Packard to Amory, and at the time when the latter was substituted as a party plaintiff, he well knew these mistakes of fact had been made by the referee, and, for the purpose of defraud - ing this plaintiff, he has at ail times concealed the same from this plaintiff, and that Packard and Amory colluded and conspired together so to do for the purpose of defrauding the said plaintiff, to the extent of these errors, to the end that they might profit thereby. The plaintiff then demanded, as relief, that the judgment, as affirmed by the commission of appeals, should be modified so that the sum of ten thousand and some odd dollars, with interest from August 16, 1860, etc., might be adjudged to have been in-eluded in said judgment by a mistake of fact, and such judgment should be declared to be erroneous to that extent; also that this plaintiff might recover from the defendant the sum above named, etc., besides costs; and for such other or further relief as might be just.

The defendant demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer has been sustained at the special and general terms, and from the judgment of affirmance the plaintiff has appealed to this court.

The allegations of fraud made against Packard and defendant simply assert a failure on the part of either to inform the plaintiff of the existence of the mistake. There is no allegation that either resorted to any misrepresentations, or had recourse to any artifice, to prevent the disclosure to the plaintiff, or that either did anything whatever towards concealment, beyond the bald and naked failure to give this information to him. If this failure were not in and of itself a fraud, it is not made so by alleging that it was induced by a desire to deceive and defraud the plaintiff. Van Weel v. Winston, 115 U. S. 228, 6 Sup. Ct. Rep., 22. It was not a fraud, unless there was some legal duty resting upon the defendant to make the disclosure. It may be that in foro conscientice, the disclosure should have been made, but, unless a party has the right to this information, not only in that forum, but juris et de jure, the withholding of it cannot be classed as a legal fraud. 1 Story Eq. sec. 207 et seg. I can see no such right here. There must be some relation of trust and confidence existing between the parties upon which to build the duty to disclose, before the right to a disclosure can be enforced by the courts. As has been said, it is not always easy to define when this relation of trust and confidence exists, but there is no difficulty in denying its existence here. If there ever were a case where no such trust could be supposed, it is that of adverse parties to a contested lawsuit.

No additional strength is given to the allegation of fraud by stating that Packard and defendant colluded and conspired together to conceal the fact, for the purpose of defrauding the plaintiff. If there were no duty resting on either to disclose the fact, each had the right to agree to be silent. The agreement to be silent, where each has the - right so to be, is not made illegal by alleging that it was done pursuant to conspiracy and collusion between the parties, without going further, and showing that the concealment was but one step in carrying out a conspiracy which was unlawful; and it must be shown that it was unlawful, and how, and what the steps were which were illegal or fraudulent. Mere general allegations of fraud or conspiracy are of no value, as stating a case of action. Van Weel v. Winston, supra; Cohn v. Goldman, 76 N. Y., 284; Knapp v City of Brooklyn, 97 id., 520. The idea of a mutual mistake existing between the parties, it seems to us, is equally idle upon the allegations in this complaint. The mistake was wholly that of the referee, unaided and uninfluenced by either party. That there may not be relief given in some form when such a mistake exists, we are far from saying, but not upon the principles applicable to transactions between persons who in the course of the business make a mutual mistake of facts upon which their transaction is based, and it is clear that a mere mistake of a referee or court in its decision could not be remedied in such an action as this. Assuming, however, that a case of fraud or mistake or both were made on this complaint, yet it is shown therein that the plaintiff had full knowledge of all the facts about the time the case was argued in the commission of appeals, and months before the decision of the case by that court; and yet, from the time when he acquired such knowledge up to the time of the commencement of this action, in 1876, so far as appears from the complaint, he took no step, made no protest, or claimed in any way the existence of a mistake or fraud, and in the most perfect silence he paid the executions (some time in 1873) issued upon the judgments, and he gives no excuse for such silence, or for the payment of the judgments with this knowledge, and without the least effort made to correct the mistake, or to expose the fraud, and escape from the payment of the money based upon its successful accomplishment. Under these circumstances, we cannot see but that this payment was substantially a voluntary payment, after knowledge of all the facts, and no cause of action could survive such a payment.

The judgment should be affirmed, with costs.

All concur.


author: Macomber, J.

text:
    Henry Wallach and Isaac Wallach, Resp’ts, v. Aaron Bader, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Bills and notes—When transferred before maturity.
    The payee of a certain note, for whose accommodation it was made, induced the plaintiffs to take up said note. The plaintiffs intrusted him with the mere clerical work of going to the bank, paying the money, receiving the note and returning it to them. This was done before protest and before the usual time for protesting commercial paper on the last day. Held, that the transfer was made before maturity. Lancey v. Clark, 64 N. Y., 209, distinguished.
    2. Same—When one is holder for value.
    Where a promissory note was made for the accommodation of the payee, but without restriction as to its use, an endorsee taking it as collateral security l'or an antecedent debt of the indorser, without other consideration, but in good faith and before dishonor, occupies the position of a holder for value, and is protected as such.
    Appeal from judgment entered upon the decision of a judge at circuit without a jury.

      Leopold Wallach, for resp’ts; W. B. Putney, for app’lt.
   Macomber, J.

The promissory note in suit was made by the defendant on the 24th day of September, 1884, payable to the order of A. Bader & Co., which firm was composed of no persons but Aaron Bader, and was thereupon transferred to J. ,R. Wallach & Bro., who subsequently and before the maturity thereof procured the same to be discounted at the Importers and Traders’ National Bank of the city of New York. There was paid upon this note by J. R. Wallach & Bro. the sum of $500. That firm, at about the time of the maturity of the defendant’s note, delivered to the plaintiffs three notes of George Lee & Co., each for $500, bearing date December 27, 1884, payable respectively one, two and three months after date, which were also payable to the order of J. R. Wallach & Bro., and were duly endorsed in that name. When these George Lee & Co. notes became due respectively they were severally dishonored, both by George Lee & Co. and by J. R. Wallach & Bro., and were in fact paid by the plaintiffs, who had guaranteed the payment of each of them to the Importers and Traders’ National Bank.

The trial judge has found very properly that the George Lee & Co. notes were in fact transferred as collateral security to the plaintiffs, and that the plaintiffs had not at any time extended the time of payment of the note in suit. It appears indeed that this action was not begun until after the dishonor of the George Lee & Co. notes.

The only question of law, therefore, which the case presents, is whether or not the note in suit was transferred to the plaintiffs before maturity, for a preponderance of the evidence shows that the maker of the note executed it solely for the accommodation of J. R. Wallach & Bro. It is contended by the counsel for the plaintiffs that as this note was given to take up another of the defendant given to J. R. Wallach & Bro., there was a good consideration for the making and delivery of the note in action; but the prior note, it is shown, was also accommodation paper, in which the defendant had no interest whatever beyond the desire to accommodate J. R. Wallach & Bro.

On the day that the note in controversy fell due, at the great importunity of J. R. Wallach, the plaintiffs furnished the means to take up the note which, at the time, lay in the Importers and Traders’ Bank. The case shows that J. R Wallach, in his interview with the plaintiffs on that day, stated that the note was due, and that neither the defendant nor himself was able to meet it, and desired the plaintiffs to find some means by which J. R. Wallach would be enabled to take the note out for H. Wallach’s sons. The plaintiffs were not inclined to do this, but at last, upon the production of and the transfer of the George Lee & Co. notes to them as collateral security for the amount remaining unpaid upon the indebtedness of J. R. Wallach & Bro., to them they furnished the requisite funds to accomplish that purpose, and J. R. Wallach was entrusted with the mere clerical work of going to the bank, paying the money, receiving the note and returning it to the plaintiffs. This was before the usual time for protesting commercial paper, for the hour was somewhere between eleven o’clock in the morning and one o’clock in the afternoon. J. R. Wallach proceeded to the bank and received the note from the bank, having upon it this endorsement: “Pay Edward Townsend, cashier or order.” There is no significance, however, to be attached to this endorsement, because, as the evidence discloses, it was a mere formality to prevent loss, and was placed upon the note at the time of its reception in the bank, and not on the day in which it was given over to the plaintiffs.

It has been attempted by the defendant to turn this transaction into a payment of the note, rather than an advance of money by the plaintiffs to take it up for the purpose of holding it as an outstanding and valid obligation. The extraordinary testimony of J. R. Wallach relating to this subject has been properly characterized by the learned trial judge. It is wholly inconsistent with the established course of commercial business, and is not corroborated in any material particular by other witnesses or by the attendant circumstances. We see no reason to complain of the language of the special term in disposing of this branch of the case.

An effort has been made, however, to bring this case within the decision of Lancey v. Clark (64 N. Y., 209). But it is distinguishable from that case in most important details. In Lancey v. Clark, the person who went to the bank was not charged in any respect with the duties of an agent of the plaintiff, and he did not even assume to act for the plaintiff, nor did he ask the bank to have the note transferred to any person. He even went so far as to ask to have the note protested for non-payment, which was. accordingly done; so that he, not somebody else, could hold the indorser and maker after protest. Protest was actually . made. 1 ‘ All the bank did in that case was to take payment of the note,” says the court “and deliver it up to a party paying, and liable to pay, after protesting it so that he could make such use of it as the law and the facts would authorize._ It did not transfer it or intend to transfer it. The plaintiff, therefore, took no title to it from the bank, but took it from Lincoln, and cannot, therefore, enforce it against the defendant.” It is a perversion of the facts to say, that the steps taken to place this note in the hands of the plaintiffs, amounted to payment and extinguishment of it while in the hands of the bank. It is plain, therefore, that as the plaintiffs took the note from the bank, they took the place of the bank, and their title and right to enforce it were as good as those of the bank at the time they took it. On the other hand, if they took it from J. R. Wallach as a transferrer, not as a mere agent or hand of their own, by which to get the manual possession of it, it would then be past due, and would have been taken subject to all of the equities of the defendant.

In the Grocers' Bank v. Penfield (69 N. Y., 502), it was determined, after a full examination of the authorities, that where a promissory note is made for the accommodation of the payee, but without restriction as to its use, an indorsee taking as collateral security for an antecedent debt of the indorser without other consideration but in good faith and before dishonor, occupies the position of a holder for value, and is protected as such. This principle is reaffirmed in Continental National Bank v. Townsend (87 N. Y., 8). It matters not, therefore, whether the plaintiffs received the note in question, in part payment of an antecedent indebt-■ edness, which was owing them by J. R. Wallach & Bro., or not; they, nevertheless, had taken it in good faith and before dishonor.

It follows from these considerations that the judgment should be affirmed, with costs.

Van Brunt, and Bartlett, JJ., concur.


author: Brady, J.

text:
    James R. Phillips, Resp’t, v. Charles B. Rouss, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Award—When impeached or opened.
    A liberal interpretation is given to uphold an award, when it is not attacked for corruption or misconduct of the arbitrators. It cannot be impeached, except for corruption, partiality or gross misbehavior. A mistake upon a doubtful point will not always open an award. Fudiekar v. Guardian Mutual Life Insurance Company, 62 N. Y., 400, distinguished.
    Appeal from order denying motion to vacate an award.

      A. S. Sullivan, for app’lt; Leonard Browner, for resp’t.
   Brady, J.

The parties hereto agreed to submit their differences to arbitration after the plaintiff had commenced an action, and these differences as properly stated by the appellant’s counsel arise upon plaintiff’s claim as follows:

First. That Rouss agreed that Phillips should, for one year from January, 1885, have the management of a business department in Rouss’ store.

Second. That the business should be to buy and sell remnant stocks of certain goods.

Third. That Rouss should furnish the money and store facilities.

Fourth. That the profits were to be equally divided.

Fifth. That on the basis of half the profits made in said department, he (Phillips), suffered damage $20,000, by reason of being discharged by Rouss on March 18, 1885.

And the defendant discharging him, which he did at the end of about two months, claiming that he had the right to do this, not having made an engagement for a year, whatever the employment may have been.

The result was that two of the arbitrators gave an award of $2,500 damages to the plaintiff, the third declining to unite with them, and refusing to award him any compensation. The parties differed in their statements and finally entered upon proof as to their business standing and integrity. They indulged in recrimination and assaults upon witnesses as to truth and veracity. The arbitrators seem to have given due attention to the parties and the duties they were to perform, but the record does not disclose all the evidence taken, although there is as to that fact a difference also. This is alleged by the plaintiff and it is sustained by the affidavit of one of the stenographers, who says there was a great deal of testimony taken which she did not record, and also by affidavits made by both of the arbitrators who concurred. And its importance is illustrated by the fact that the defendant alleges that no testimony was given as to the amount of merchandise stock in the plaintiff’s department, or the amount of business done therein, or as to the profits realized, and this the concuring arbitrators say is not true.

We might be justified in saying here that we cannot properly consider this appeal on the merits as to the plaintiff, for the reason that the whole evidence is not before us, and we would do so if we did not feel it incumbent upon us from what appears to affirm the order appealed from by which a motion to set aside the award was denied. The conclusion expressed by the arbitrators is not assailed for corruption or misconduct, but chiefly for the reason that they meant to decide according to law but did not, and thus to bring the appeal within the principle announced in Fudickar v. Guardian Mutual Life Ins. Co. (62 N. Y., 400), as it was understood and sought to be applied on be half of the appellant. It was said in that case that an award may be set aside for error of law when the question of law is stated on the face of the award, and it appears that the arbitrators meant to decide according to law but did not.

“If it appear from the award,” said the court, “that the arbitrators intended to decide the case according to law, and the grounds of their decision are set out, which in law do not justify it, the case is brought within the exception to the general rule, and the court will set it aside.” And it was held that it was sufficient if this error was shown by clear and necessary inference. It was also said, however, that it was a settled principle governing this subject, and which ought never to be lost sight of, that all reasonable intendments and presumptions are indulged in to support awards. And, further, that the court possesses no general supervisory power over awards, and if arbitrators keep within their jurisdiction, their award will not be set aside because they have erred in judment either upon the facts or law. If courts should assume to re-judge the decision of arbitrators upon the merits, the value of this method of settling controversies would be destroyed, and an award, instead of being a final determination of a controversy, would become but one of the steps in its progress.

This review of the case referred .to is indulged in because the appellant relies mainly upon it in support of the appeal. It does not appear, however, that the arbitrators who concurred meant to do otherwise than they did.

The questions submitted were, as we have seen, whether an agreement was made with the plaintiff for a year; whether he was properly discharged if one had been thus made, and if improperly discharged, what compensation should be awarded. The subjects embraced in this investigation were examined. The parties and witnesses testified, and although we have not all the evidence given, it is quite apparent that great differences between the parties prevailed, and that there was not only conflict between them, but their witnesses, and on material matters. As the case is presented to us, it might be that we would hesitate to compensate the plaintiff as the arbitrators have done, although if we had all the evidence given we might do so. We do not now discover any reason for disturbing the judgment pronounced.

It is conceded by the learned counsel for the defendant that an award cannot be impeached but for corruption, partiality or gross misbehavior, and that even a mistake upon a doubtful point often will not open an award, and it is the settled law of the state that a liberal interpretation is given to uphold an award, when it is not attacked for corruption or misconduct of the arbitrators. Curtis v. Gokey, 68 N. Y., 300. The tribunal in this and kindred cases is one selected by the parties, and the proceedings are conducted with less restriction than prevails in courts of justice.

Indeed, where an action is pending between the parties, and arbitration is adopted, it means a general diffuse examination, to be conducted and controlled by such views and recourses as business men adopt in the investigation of disputes. It is a domestic tribunal, and contradistinguished from a regularly organized court proceeding according to the course of the common law, and hence the rules which the latter tribunals have pronounced to guide them in reviewing what has been done. The liberal spirit which must predominate, except where corruption or misconduct is shown, is the controlling element. It is not deemed necessary, however, to consider this appeal further, inasmuch as for the reasons given, the order appealed from should be affirmed, with ten dollars costs and disburseménts.

Van Brunt and Daniels, JJ., concur.


author: Daniels, J.

text:
    The American Exchange National Bank Resp’t, v. Stevens Voisin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Attachment—When wabbant of may be issued—Code Civ. Pbo., §§ 635. 638.
    While by Code Civil Procedure, section 635, a warrant of attachment, if issued, must be in an action, it is not required to be preceded by the service of the summons, but, on the contrary, under the authority of section 638, may be made to accompany the summons, or at any time after the commencement of the action and before final judgment
    2. Same—Actual commencement of the action is not a pbebequisite.
    No actual commencement of the action is required before an' attachment may be issued but only'that it shall be issued in what shall in form be an action by one party against another. This requirement is fully satisfied when the summons has been made out and is in condition to accompany the service of the attachment.
    3. Same—Facts pbesumable fbom affidavits.
    One of the affidavits upon which a warrant of attachment was granted was made by the cashier of a bank and stated that the bank advanced and loaned to the defendant money, no part of which had been paid, and that this, together with an amount overdrawn by him, was justly due and owing to the plaintiff from the defendant over and above all counterclaims known to it. Held, that the cashier being the fiscal officer of the plaintiff, and the one within the line of whose duties its loans and overdrafts would in the usual course of business be made, he might, from the tenor of the affidavit made by him, be presumed to have had actual knowledge of the facts which he stated in positive terms authenticating the loan of the money.

      4. Same—Presumption as to the date at which a loan becomes due.

      Held, that no specified period of credit having been stated, the loan might be presumed to have become due at the time when the affidavit was sworn to.
    5. Same—Facts entitling party to—Code Civ Pro. § 636, sued, 2.
    The other affidavit on which the warrant of attachment was founded disclosed a state of facts from which it could not well be inferred, as the fact was then stated by the cashier, that the defendant, had departed from the stale with intent to defraud his creditors, avoid the service of a sum mons, or kept himself concealed within the state with that intent. Held, that upon that fact, as an indebtedness was shown to have existed over and above all counter-claims, an attachment was warranted under Code Civil Procedure, section 636, subdivision 2.
    6. Same—Variance between amount op indebtedness stated in affidavit AND THAT DEMANDED IN SUMMONS—WHEN IMMATERIAL.

      Held, that, granting the fact that there was a substantial difference between the amount of indebtedness mentioned in the attachment and the statement of it made in the summons, the amount as stated in the attachment being less than the amount demanded in the summons, this variance would afford no ground for setting the attachment aside.
    Appeal by Amory A. Lawrence and others, as subsequent attaching creditors, from an order denying a motion to vacate an attachment issued on the 9th of October, 1886, in favor of the plaintiff and against the defendant.

      Adams & Boothby, for app’lt; L. B. Bunnell, for pl’ff and resp’t.
   Daniels, J.

One of the affidavits on which the first attachment was issued contained the statement that “plaintiff has, or is, about to commence an action against the defendant to recover the above-mentioned loan, and the summons is annexed hereto.”

That statement is relied upon as maintaining the fact that the plaintiff was not entitled to an attachment at the time when it was issued. But while it is true that by section 635 of the Code of Civil Procedure the attachment is to be issued in an action, it has not been required to be preceded by the service of the summons; but, on the contrary, it may, under the authority of section 638 of the sspne code, be made to accompany the summons, or at any time after the commencement of the action and before final judgment.

This clause in the affidavit brought the case within this section of the Code, for it proved the fact to be that the summons had been made out and was ready for service and, being attached to the affidavit, was made a part of the application for the attachment; and the attachment being issued in that manner, it accompanied the summons within the strict signification of this phraseology, as it has been employed in this section of the Code. And this construction is maintained by the further provision of the same section that service of the summons must be made upon the defendant, or an order of publication obtained, within thirty days after the warrant of attachment is granted. And these two provisions entirely overcome the force of the argument made, from the language contained in section 635, that the summons as a matter of fact must be issued or served before an action can exist in which án attachment may be allowed. That is not the effect of this section.

It requires no actual commencement of the action before an attachment may be issued, but that it shall be issued only in what shall in form be an action by one party against another. This requirement is fully satisfied when the summons has been made out and is in a condition to accompany the service of the attachment. And no authority has been found which is inconsistent with this construction.

In the case of Partridge v. Brown (19 Week. Dig., 434), the facts now made to appear were not presented. For the affidavit evidently failed to show compliance with these sections of the Code, while here the statement is entirely ample for this object.

This affidavit was made by the cashier of the bank, and it states the fact that the bank advanced and loaned to the defendant the sum of $5,500 on the 16th of September, 1886, no part of which had been paid, and that this amount together with $2,237.92 overdrawn by him, was justly due and owing to the plaintiff from the defendant over and above all counterclaims known to it. This affidavit very essentially differs from that held not to be sufficient in Pomeroy v. Ricketts (27 Hun, 242), and Smith v. Davis (29 Hun, 306). For in the former case it was not stated as a matter of fact, that any goods or merchandise had been sold or delivered, while in the latter case, the affidavit only contained a recital of a sale. They were each inferior in their effect as evidence, to the affidavit made by the cashier upon which this attachment was issued, while in Reilly v. Sisson (31 Hun, 572), the indebtedness did not appear to have matured, and in Waltz v. Nichols (32 Hun, 276), the right to nominal damages only appeared from the affidavit. In the Marine National Bank v. Ward (35 Hun, 395), the affidavit was not made by any person either appearing to have, or who it could be presumed had knowledge of the existence of the indebtedness, or of the facts out of which it might have arisen, while in the present instance it was made by the cashier who was the fiscal officer of the plaintiff and within the line of whose duties, its loans and overdrafts would in the usual course of business be made. He may be presumed, therefore, from the tenor of the affidavit made by him to have had actual knowledge of the facts, which he has stated in positive terms authenticating the loan of the money. And as no specified period of credit has been stated, the loan may be presumed to have become due at the time when the affidavit was sworn to, which was the 9th of October, 1886.

The other affidavit on which the attachment was founded disclosed a state of facts from which it could well be inferred, as the fact was there stated by the cashier, that the defendant had departed from the state with intent to defraud his creditors, or to avoid the service of a summons, or kept himself concealed within the state with that intent. And upon that fact, as an indebtedness was shown to have existed over and above all counterclaims, an attachment has been authorized under subdivision 2 of section 636 of the Code of Civil Procedure. And this, though briefly stated, was disclosed by the recital in the attachment, in such language as to indicate it to have been the ground upon which the attachment was issued.

Whether there was a substantial difference between the . amount of the indebtedness mentioned in the attachment, and the statement made of it in the summons, cannot be determined, for the reason that the summons itself has not been made a part of the papers on the appeal. But even if there were such difference, as the indebtedness is stated at a less amount in the attachment, than was demanded in the summons, it will afford no ground for setting aside the the attachment. For the defendant could not be prejudiced by the fact if it existed. It would on the contrary be an advantage to him; for the sheriff under the attachment could take no more of his property than would satisfy the amount mentioned in the attachment, with interest, costs and expenses. The other objections which have been urged in support of the appeal are still less entitled to be sus- ' tained. They are devoid of merit, being quite formal in their character, and require no further consideration for the disposition of the case.

The order appealed from was right and it should be affirmed, but as the affidavits have not been drawn with that care and particularity which should have been observed in so important a case, it should be without costs.

Van Brunt and Brady, JJ., concur.


author: Van Brunt, P. J.

text:
    Jacob J. Banta, Resp’t, v. James Naughton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Witness—Credibility.
    When a party is successfully impeached as to any part of his testimony which is material, hy several witnesses, very little dependence can he placed upon any part of the statement made by him, and it, if contradicted, should be rejected.
    2. Costs—Liability—Beneficial interest—Attorneys.
    A beneficial interest in a cause of action does not render an attorney liable for costs, where such beneficial interest consists of a right to a portion of the sum or property recovered as compensation for his services in the action.
    Appeal from order denying motion directing the attor-. neys and alleged principal to pay defendant’s costs in this action.

      Warren G. Brown, for app’lt; R. M. Hall and F. W. Angel, for resp’t.
   Van Brunt, P. J.

The claim of the appellants in this proceeding is founded upon the affidavits of the plaintiff and his son. In very many important particulars they are contradicted by Mr. Van Alstine, by Mr. Boss, by Mr Gifford and by Mr. Lyon. There is nothing in the case which ■ would justify the court in holding that Mrs. Whitney had any interest in the claim attempted to be enforced in this action after its assignment to the plaintiff. It is undoubtedly true that Messrs. Van Alstine and Boss were beneficially interested therein by reason of an agreement made with the plaintiff alone, that they should have half the recovery m case of success; and it further appears that for their own protection Messrs. Van Alstine and Boss required the plaintiff to assign the judgment to a third party in order that the plaintiff might not settle and thereby endanger their claim upon the judgment for compensation for services rendered in the action If the plaintiff’s statements are to be taken as correct, Messrs. Van Alstine and Boss would be responsible for the costs incurred in the action. But the plaintiff has been contradicted in s@ many particulars by so many different affiants that very little reliance can be placed upon any statement contained in his affidavit which is denied.

It _may be true that as to some of the material statements in his affidavits he is contradicted by but one witness, but when a party is successfully impeached as to any part of his testimony which is material by several witnesses, very little dependence can be placed upon any part of the statement made by him; and it, if contradicted, should certainly be rejected, and this appears to be the unfortunate condition of the plaintiff upon the issues which were presented upon this application. •

The mere fact that Messrs. Van Alstine and Boss were beneficially interested in the cause of action did not render them liable for costs where such beneficial interest consists of a right to a portion of the sum or property recovered as compensation for their services in the action, and the character of their beneficial interest does not seem to have been at all changed by reason of the assignment of Banta to Mrs. Whitney, procured for the purpose of securing such benéficial interest. It certainly was not the intention of the legislature in the enactment of the provisions of the Code to make an attorney beneficially interested in a cause of action as compensation for his services in the action not liable for costs where the action is brought in the name of another, and to render such attorney liable, where, after the commencement of the action, there has been an assignment of such cause of action.

The order should be affirmed, with costs.

Brady and Daniels. JJ. concur


author: Bartlett, J.

text:
    Emily A. West, Resp’t, v. The West Bradley and Cary Manufacturing Company, Def’t; Heloise Kelley, Ex’r, et al., App’lts.

      (Supreme Court General Term, First Department,

      Filed March 31, 1887.)

    1. Mortgage—Foreclosure of—Order allowing intervention—Scope OF.
    This action was brought to foreclose a mortgage. After judgment had' been taken by default against the defendants herein, the present appellants being the owners of a judgment against the corporation, recovered after the filing of the notice of lis pendens, were allowed to come in and contest the validity of the mortgage. Held, that the order permitting the intervention of the appellants authorized them only to contest the validity of the mortgage, and that they could not insist upon any facts tending merely to show a suspension of the plaintiff’s remedy.
    3. Same—Exemption from costs.

      Held, that there being circumstances sufficient to arouse the appellant’s suspicion and to warrant their intervention, they should not be held exempt from the payment of costs or the disbursements of the plaintiff.
    Appeal by judgment creditors from special term decree, adjudging mortgage to be valid, etc.

      Thomas H. Rodman, Jr., for app’lts ; Francis C. Reed, for resp’t.
   Bartlett, J.

This is a Suit to foreclose a mortgage. After judgment against the West Bradley and Cary Manufacturing Company had been taken by default, Keller and Waterman, the present appellants, being the owners of a judgment against the corporation, recovered after the filing of the notice of lis pendens, were allowed to come in and contest the validity of the mortgage. The issues raised by the answer, which they interposed, were sent to a referee to hear and determine, and, upon the coming in and confirmation of his report, it was ordered that the previous, judgment should stand and be the judgment in the action, with certain additions in respect to costs and disbursements.

The complaint alleged that, for a portion of the interest on the mortgage accruing prior to January 1, 1885, the-plaintiff had recovered a judgment which was entirely unsatisfied. This allegation was not denied in the answer; and the appellants insist that this should have been deemed by the referee a fatal objection to the maintenance of the action. The order permitting the intervention of the appellants, however, authorized them only to contest the validity of the mortgage — not to insist upon any facts tending merely to show a suspension of the plaintiff’s remedy. Their rights in the case were limited by the terms of the order, and this objection in nowise relates to the validity of the mortgage. In our opinion, therefore, it is not available in their behalf.

A careful examination of the evidence, all of which has been read, fails to convince us that the referee erred in holding the mortgage to be valid. Assuming that he was wrong in some of the rulings which are criticised in the appellants’ points, we think he would have been obliged to reach the same result, even if he had excluded the evidence to which objection was made. That there were circumstances in the case which justified suspicion cannot be denied. Indeed, these were quite sufficient to warrant the appellants in seeking to come into the suit, and thoroughly investigate all the matters relating to the making of the several mortgages from the defendant corporation to the plaintiff. For this reason, we think the appellants should be relieved, not only from the costs as they were by the decree appealed from, but also from payment of the sum therein charged against them on account of the plaintiff’s disbursements.

The action of the appellants in this litigation was rendered proper by the transactions of the plaintiff or her agents with reference to the mortgage in suit; and it seems to us inequitable, under all the circumstances of the case, to compel the appellants to pay anything whatever by reason of having insisted upon a full disclosure of all the transactions between the plaintiff and the corporation mortgagor.

The judgment should be modified by striking out the award of $547 to the plaintiff, on account of her disbursements, and, as thus modified, should be affirmed, without costs to either party on this appeal.

Brady and Daniels, JJ., concur.


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    Moses Brown et al., Resp’ts, v. Peter Bowe, App’lt.

      (Supreme Court, General Term, First Department,

      Filed Mar 30, 1887 )
    1. Possession—What constitutes constructive.
    These plaintiffs accepted a consignment and invoice of go ds, and directed them to be entered upon their books as goods to arrive. Held, that from that time the carrier had the custody of and transported the goods for their benefit, and that that gave them constructive possession of the property.

      2. Conversion—Title in third party forms no defense

      Held, that an action for the conversion of the property could not be defeated by proof that the title thereto was in a person other than the plaintiffs, when that was not connected with the claim of title under which the taking of the property was attempted to be justified. This is a defense only in actions for wrongful detention.
    3. Evidence—Of right to possession

      Held, that correspondence concerning the seizure was pertinent and proper evidence affecting the right of the plaintiff to recover the goods.
    4. Same—Of title

      Held, that the bill of lading was properly received, as was also testimony showing that directions were given by the plaintiffs to enter the goods on their books as property to arrive.
    5. Same—History of case

      Held, that letters succeeeding the seizure were properly received as forming a part of the history of the case.
    Appeal from judgment entered on report of referee,
    M H. Rogensburger, for app’lt; F. C. Reecl, for resp’ts.
   Daniels, J.

This action was before this general term on a preceding appeal, after a trial in which the complaint of the plaintiff was dismissed. That was considered to have been an erroneous direction, and the judgment entered upon it was reversed, and a new trial ordered. Brown v. Bowe, 35 Hun, 488. The trial resulting in the judgment from which the present appeal is taken, was had pursuant to that direction, and the facts as they were previously before the court were repeated and sustained by the evidence. In support of the present appeal it has been urged by the counsel for the appellant that, the case of Griffin v. The Long Is. R. R. Co. (101 N. Y., 348); (1 N. Y. State Rep., 56), had disposed of a point considered when the case was heard and decided on the first appeal, it is a different manner from the disposition made upon it by this court. But that is an erroneous view of this latter authority; for before the goods were seized by the sheriff under the attachment received by him, the plaintiffs had accepted the consignment and invoice of goods, and directed them to be entered in their books as goods to arrive, and the carrier from that time certainly had the custody of, and transported the goods for the benefit of the plaintiffs, and that gave them the constructive possession of the property. When the sheriff after that seized the goods under the attachment, he took them from the constructive possession of the plaintiffs. They had then arrived at the city of New York, and the plaintiffs had before that time, applied for information concerning the expected arrival of the goods, intending as soon as that event should occur to remove them to their own premises.

The case referred to does not sustain the right of the defendant to defeat the action prosecuted under such circumstances, by proof of title in anothér person when that may not be connected with his seizure or claim of title under which the taking of the property is attempted to be justified. It is only when an action has been brought for the unlawful detention of the property that such a defense can be relied upon. That is conceded by this authority, distinguishing an action of that description from one brought for property taken from the possession of the plaintiffs.

As the plaintiffs had accepted the goods by assenting to their shipment and the receipt of the invoice before the attachment, the defendant had no legal right to seize the goods as the property of the debtor named in the attachment, and having no right to make such seizure they were not at liberty to defend by showing that the shipper of the goods, who was the debtor in the attachment, had previously made an assignment for the benefit of his creditors under which the assignee might possibly have claimed the property. He made no such claim and the defendant could not protect himself against liability by simply relying upon the fact that the assignee might, if lie had been disposed to do so, have claimed the property under the assignment.

Objections were taken to the rulings of the referee, allowing the correspondence to be received in evidence under which the plaintiffs endeavored to maintain their title and relating to the expected arrival of the goods and their subsequent seizure. The letters concerning the seizure were clearly pertinent and proper evidence affecting the right of the plaintiffs to recover possession of the goods. So was the bill of lading and the fact that directions had been given to enter the goods in their books as property to arrive. The letters succeeding the seizure, were no otherwise important then as tending to show what transpired in connection with that seizure. They formed a part of the history of the case and for that reason were properly received by the court, although they might have been dispensed with, without injury to the plaintiff’s rights. But even assuming them not to have been material, they in no manner changed the relative situation of the parties, and did not prejudice the defendant in any defense sought to be made by him in the action.

The same thing was true as to the demand of the property after the service of the attachment. It was not necessary or important that it should be proved, but it was still within the tenor and scope of the action and the plaintiffs had the right to prove it, if they deemed it advisable so to do.

Neither these objections nor any others that have been relied upon, sustain the defense made by the defendant or ( deprive the plaintiff of the right to recover this property.

The case was rightly disposed of and the judgment should be affirmed.

Van Brunt, J., concurs.


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    James Whitall et al., App’lt, v. Charles M. Moshier, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    Venue—Change of—When place of the transaction controls.
    Where the number of material and necessary witnesses on each side is nearly equal, the place where the transaction took place should control.
    Appeal from order changing place of trial from this county to Oneida county.

      Cromwell G. Macy, for app’lt; C. J. Palmer, for resp’t.
   Brady, J.

The cause of action asserted was for work, labor and services performed for the defendants in the manufacture of 300 glass bottles between certain dates. The defense was that the bottles were to be delivered from time to time, and in such quantities and at such times as defendants called- for them, and were to be paid for in sixty days after the delivery of each installment.

This was said to have been the agreement made by the defendants, and, in addition, that they were not to use in their trade any other bottles than those specified, and were to order them as fast as their trade demanded.

Whether that was the contract between the parties or not was really the only issue presented by the pleadings. Upon the argument of the appeal the counsel for the appellant seemed to labor under the impression that the question of the value of the chattels was at issue on the pleadings, but it is not so. If the bottles were to be delivered as stated by the defendants, the action cannot be maintained because the contract was not an entirety except as to the number of bottles. The order was given for the bottles to the plaintiff’s agent at Utica, where the defendants reside or have their place of business; and it is alleged satisfactorily that both of the defendants and a Mr. Filkins, who is the defendants’ bookkeeper, were the only persons present when the conversation took place in reference to the bottles with the plaintiffs’ agent; and that another witness who is named and had a conversation with the plain- ■ tiffs’ agent, was informed by the latter that the contract was substantially as it was asserted to have been made by the defendant. They also show that there are other witnesses who are in their employment will establish the fact that since the first installment of the bottles, delivered on or about the 10th of December, 1885, they have used no other bottles of the class purchased from the plaintiffs except those received from them, and that bottles have been ordered as fast as their trade demanded. The plaintiffs’ response to this relates to matters which seem to be collateral to the issue, chiefly as to the manner in which the plaintiffs conduct their business in reference to orders received; and although this might, under circumstances which cannot very well now be conjectured, become important, that possibility is not sufficient to warrant us in saying that, after the revelations made on behalf of the defendants, the convenience of witnesses will be better consulted by refusing to make the change of venue asked.

It was said in Peck v. Parker (15 Week. Dig. 142), that where the number of material and necessary witnesses on each side is nearly equal, the place of the transaction controls. In this case it might be said with propriety that the number of material witnesses is decidedly greater on the defendant’s showing-for them, and, therefore, the place where the transaction took place should control. The issue indeed is a very simple one. It is as already suggested whether the contract was absolute for 300 dozen of bottles or conditional. This must depend upon what took place in Utica where the contract confessedly was made There is no dispute about the price. It is admitted that the plaintiffs’ allegations on that subject are correct, and for this reason the question of value cannot become necessary on the trial.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.


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    Caroline Murray, Resp’t v. Agnes Murray, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1887.)

    1. Perpetuities—Statute against—What does not constitute violation of.
    By a will of real property the testatrix directed that certain lands should be held and enjoyed by her husband and daughters, so long as any two of the daughters should remain unmarried, and for the space of one year after the marriage of the daughter who should be married second in order of time, and authorized an executor and trustee therein named at any time after the expiration of the year last named, with the consent of her husband, if he should be living, to sell the said premises at public or private sale on such terms and for such price as he might deem expedient, and upon such sale to create all necessary or proper deeds to the purchaser or purchasers thereof. It was also directed that such sale and conveyance should be a complete bar to all claims to the estate or interest in said premises by the children or heirs of the testatrix or those claiming under them. A further direction followed that the proceeds of the sale, after deducting the expenses thereof, should be divided among all her children living and the issue of any of them who might be dead in equal shares, the issue of any deceased child to take the share of his, her or tneir parent. Held, that under the statute provisions in regard thereto, there is no suspension of the power of alienation when there are persons in being who can convey an absolute title in possession.

      2. Will—Provisions of—What is a naked power of sale.

      Held, that the power given to the executor and trustee was merely a-naked power of sale and not a trust power.
    3. Same—Does not suspend power of alienation.

      Held, that such a power did not suspend the power of alienation.
    4. Same—Effect of power on vested estates.

      lldd, that should this be invalid as suspending the power of alienation, it would not affect the vested estates in the children.
    5. Same—Conveyance under—How effected

      Held, also that the union of the executor and trustee with the daughters-in a conveyance, if that should be deemed necessary, would overcome any objection that the disposition made by the will was void as against the statute against perpetuities.
    Appeal from the special term.
    . Joseph H. Choate, for app’lt; S'. P. Nash, for pl’ff and. resp’t; J. A. Murray, James B. Murray, John L. Cachualladar, Strong & Cadwalladar, J. Fred Kernochan for def’ts.
   Brady, J.

This appeal has occasioned many examinations of many questions involving the effect of the trust deed upon the power conferred by it in regard to the statute against perpetuities, the legality of the instrument by which the power was exercised, and indeed those so ably presented by the numerous briefs submitted for consideration, and elaborately and ably answered, by which it was contended, that in the exercise of the power Mrs. Murray had transcended her privileges and violated the statute by suspending the power of alienation beyond the period allowed in that respect. The effect, also, of the statutes of 1848 and 1849, in regard to the property of married women, received the attention, it was thought, they demanded, although the result of their consideration was that they did not strictly apply effectively in the solution of any of the many legal problems supposed to be involved herein.

The study of the case has not been without labor and misgivings, requiring, therefore, frequent reconsiderations with a view to more assured conclusions.

The ultimate result at length determined, however, and after consultation, is that the exercise of the power by Mrs. Murray cannot be successfully assailed, and therefore there has been no illegal suspension of the power of alienation.

Upon the death of Mrs. Murray there can be no doubt the trust under the original deed ceased.

If she failed to execute the power conferred upon her by it, the trust estate passed to her children or to her heirs at law in fee simple. If she legally exercised the power the trust terminated. The will, therefore, becomes the only subject of serious consideration. The examination of it discloses clearly, it is thought, that it created no trust and no future interest of any kind, aside from the power of sale conferred upon her executor.

Mrs. Murray refers in it to the deed of trust, and by virtue thereof and the execution of the power conferred thereby, devises, directs, limits and appoints, with regard to the estate in question, as follows :

First. It is my will that the said premises in the said deed, granted and conveyed as aforesaid shall he held and enjoyed by my husband, the said James B. Murray, and my daughters, Caroline, Agnes and Anna, so long as any two of my said daughters shall remain single and unmarried, and for the space of one year after the marriage of the daughter who shall be married second in the order of time, and I do hereby authorize and empower my executor and trustee hereinafter named at any time after the expiration of t. e said year last mentioned, with the consent of my husband, if he shall be living, to sell the said premises at public or private sale, on such terms and for such price as he may deem expedient, and upon such sale to create all necessary or proper deeds and conveyances lo the purchaser or purchasers thereof, which sale and conveyance shall be a complete bar to all claims to the estate or interest in the said premises of my children and heirs, or any person claiming by or through them. And I do direct that the proceeds of the said sale, after deducting the expenses thereof, be divided among all my children who may then be living, and the issue of any of them who may be dead, in equal shares, the issue of any deceased child to take the share of his, her or their parent.”

And these provisions it is also thought create a valid present estate in possession with a conditional limitation in her husband and daughters, but a reversionary interest in fee in her children and their issue. If the fee does not vest in the daughters it is not disposed of, as no one else is gifted with it, the executor taking only a naked power of sale. All the expressions necessary to create the fee are employed as well as those necessary to establish the limitation designed and to which the fee could be legally and properly subjected.

The vesting of the fee in the children of Mrs. Murray was indeed contemplated and provided for in the deed of trust as we have seen in case she died without exercising the power conferred upon her, and her will carries out the scheme by its provisions. This phase of that instrument is material and conclusive it would seem, for the reason that under our statute on the subject, there is no suspension of the power of alienation when there are persons in being who can convey an absolute title in possession.

If, for example, Mr. Murray having died, the daughters united in a conveyance, the fee would be absolutely conveyed, inasmuch as this would be a concurrence of all persons having absolute interests in the estate and the only-persons having such interests.

This view becomes the more apparent and impressive when we keep in mind that there is no trust created by the will, and indeed that there is no trust existing which in any way affects the estate. It does matter, therefore, perhaps what the estate or interest conferred by the will may be designated as the whole fee has passed and the limitations may be surrendered or waived or abandoned or transferred by a concurrence of the parties interested. And on this subject it should also be borne in mind that there is not a contingent remainder.

The revisers said in reference to future estates: To prevent a possible difficulty in the mind of those to whom the subject is not familiar, we may add that an estate is never inalienable unless there is a contingent remainder, and the contingency has not yet occurred. ”

‘ ‘ This is the meaning of the rule of law prohibiting perpetuities and is the effect of the definition in section 14.” Reviser’s notes, 3 R. S. (2d ed.), 573.

The power of sale does not affect this view. It is a naked power to be exercised only upon the expiration of one year after the two marriages contemplated by the will, a contingency which may never happen, and then, only with the consent of Mr. Murray, if he should be living.

It is clearly a naked power, for there is no devise to the executor or trustee, as already suggested, but an authority, a power and nothing more.

It is not a trust power, and is not only not imperative, but its exercise is dependent upon conditions. The direction to distribute after the sale takes place embraces all that is in the nature of a command. Such an authority cannot, it would seem, suspend the power of alienation. Blanchard v. Blanchard, 4 Hun, 287; aff’d 70 N. Y., 615; Eells v. Lynch, 8 Bosworth, pp. 479, 480; 1 R. S., 737, § 128. If, however, it be invalid as suspending the power of alienation, this would not affect the vested estates in the children, and the result must be the same, namely, the validity of the disposition made by the will.

In addition to this, it may be said that the union of the executor and trustee with the daughters in a conveyance, if by any interpretation that should be deemed necessary, would overcome any possible objection on that score. It is not deemed necessary to extend this discussion beyond what is stated.' The suggestions made are deemed controlling and conclusive, and however interesting or profitable it might be to examine the various elements, which have been presented in the briefs, it would serve more to confuse than to elucidate the result which has been adapted after much investigation and reflection.

The tendency has been to elaborate expression on questions relating to wills, and it may be said, particularly those involving the statute against perpetuities, and it not unfrequently happens that some line of thought, not fully, perfectly understood by the reader, leads to ingenious, if not to false theories, which promote litigation. It is said by Gray, in his treatise on the “Buie against Perpetuities” that since the Bevised Statutes, there were in this state 170 reported cases on the subject of remoteness (sections 749, 750), and that in no civilized country, is the making of a will so delicate an operation as here This may be, and doubtless is susceptible of explanation, but the ingenuity and learning of our bar resting upon adjudications upon the subject of every shade in delicacy of manipulation and construction, make contentions natural and easy.

For the reasons assigned, however, the judgment appealed from should be reversed, with costs.

Daniels, J.,