text:
    JOSEPH ANNIN, Respondent, v. GEORGE WREN and WILLIAM C. WREN, Appellants.

      Contract to assist another person to invent improvements — one so employed cannot take out letters in his own name for inventions so made.

    This action was brought to compel the defendant, George Wren, to assign certain letters patent for an invention in hand-trucks issued to him, as the assignee of W. C. Wren, his brother, who, claiming to bo the inventor of the improvement, had applied for letters patent.
    It appeared upon the trial of the action that the plaintiff while engaged in the business of manufacturing iron wheelbarrows and trucks, and in endeavoring to improve the same, had employed the defendant, W. O. Wren, at a weekly salary, to apply himself personally to the development of this business, and that the said Wren, while so assisting him, had made certain inventions, and had made drawings and models thereof for the purpose of procuring letters patent to be issued to the plaintiff. While so remaining in the employment of the plaintiff, Wren secretly made application for letters patent to be issued to himself, and he assigned the same to his brother George, who obtained the letters patent knowing of the rights of the plaintiff thereto and of the facts and circumstances upon which they were based.

      Held, that the court had jurisdiction over the subject-matter and parties, and that a judgment granting to the plaintiff the relief sought should be affirmed.
    Appeal from a judgment in favor of the plaintiff, entered in Kings county upon the trial of this action by the court without a jury.

      Isaac S. CatUn, for the appellants.

      John L. Hill, for the respondent.
   Barnard, P. J.:

The proof returned with the case shows that the plaintiff, in 1888 and subsequently, was engaged in the manufacture of iron trucks, and wheelbarrows of sheet iron, with iron handles. This business he had commenced in 1881, and there had been an interval of cessation on account of his ill health. He had expended about $1,000 in developing improvements in them so as to make them of commercial value. In February, 1883, he employed the defendant, George Wren, at a weekly salary of eighteen dollars, “to apply himself personally'to the development of this business; to develop the truck and wheel•barrow business; he went under that name with us.”

In the early part of the employment the defendant, George Wren, was employed upon the wheelbarrows. After being thus employed about a fortnight, he went to developing trucks. Wren and the plaintiff were in constant consultation about the business. Wren was a skillful draughtsman and he made drawings of the proposed1 improvements. Patterns were made of iron therefrom, so as -to manufacture the wheelbarrows and trucks. The design was to get patents for the improvement and engage outside capital in the enterprise, and the patents were expressly to be in the name of the plaintiff.

Considering the relation of the parties and the nature of the employment, it would equitably follow that the patents should belong to the plaintiff, if any were obtained' as the result of the joint development of the parties. The plaintiff was in the business of manufacture, and he employed the defendant, George Wren, to aid him in devising improvements so as to aid the business. It would be most unreasonable for the employe, under these circumstances, to patent the improvements, and thus destroy the right of the plaintiff to use the result of his and Wren’s invention. The agreement but carries out what would be the result without it from the evidence. The defendant, George Wren, says that the truck inventions were separate and outside of the arrangement. The finding is against this claim and this accords with the probabilities resulting from the employment. The plaintiff’s business included both, and the subsequent conversation in respect to additional compensation in respect to the truck, from the profits of their sale, has no relevancy to the question as to the title to the patents. In 1881, George Wren made application for a patent for truck improvements, and assigned the same to the defendant, Wm. C. Wren, who obtained a patent therefor in his own name. This patent equitably belongs to the plaintiff. It was the result of investigation under the employment, and by the agreement belonged to the plaintiff. (Burr v. De La Vergne, 102 N. Y., 415.)

The assignment to the defendant, Wm. C. Wren, by his brother, was made with the intent to deprive the plaintiff of his title thereto under the .agreement. The case is voluminous and an examination •of the .evidence shows abundant evidence to support this finding. It was taken with full knowledge of plaintiff’s claim and could have had mb object beyond removing the title from the defendant, Wm. Wren. The point is not sustained which questions the authority of this .court to pass upon the question presentéd. While the validity •of an infringement of a patent is not within the jurisdiction of the State courts, questions of title to a patent under contracts have frequently been entertained. (De Witt v. Elmira Nobles Mfg. Co., 66 N. Y., 459; Continental Store Service Co. v. Clark, 100 N. Y., 365.)

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurred.

Pratt, J.:

This is' a suit to compel defendant, George Wren, to assign •certain letters patent, for an invention in hand trucks, issued to .him as assignee of W. O. Wren (the alleged inventor who made .application for a patent and assigned the right to the letters to said George, his brother). Plaintiff alleges that the invention became his property as the result of a contract by which W. C. Wren entered his employment for the special and limited service of inventing wheelbarrows and such trucks. The learned trial judge found the special employment and service, and that the invention was perfected during that service; he adjudged that plaintiff was the owner of the' property in the invention as the result of an understanding, a part of the contract of employment of or service being that he 'should be the owner of all' inventions- made by W. O. Wren while in that service.

We think this conclusion was clearly right on the merits. Plaintiff had been striving to invent wheelbarrows and hand trucks since 1880. W. C. Wren had assisted him in inventing a wheelbarrow. Overtaken by sickness he had to give up his plans until about the beginning of 1883, when he resumed his efforts to invent wheelbarrows and trucks with the purpose of manufacturing and selling them to the trade, provided he succeeded in inventing something that would sell. He had not yet succeeded in perfecting anything. This work of inventing was the matter in hand in February, 1883. Both parties so understood it. This, work of inventing was what plaintiff called “ developing the wheelbarrow business,” that being a phrase covering the work of inventing both wheelbarrows and trucks. This was also clearly understood by both the contracting parties. The invention was perfected during that service. W. C. Wren well knew that Annin expected and believed that his inventions would be Annin’s property, and knowingly suffered him to remain in that belief, and on that understanding drew and appropriated his salary at eighteen dollars per week from about the middle of February, 1883, to the end of that year. About election of 1883 they had a dispute whether or not the truck invention was Annin’s property, and about some other matters. They submitted it to arbitrators who awarded that all the inventions belonged .to Annin. This award covered the truck invention as part of the dispute. Defendant George Wren assisted W. O. Wren in all this and never intimated any personal interest in the truck invention, W. O. Wren accepted and professed acquiesence in this award an4 induced Annin to rely on his acquiesence, who while relying thereon continued to pay him his salary. But meantime, after the award and acquiesence, while drawing the salary and professing faithful service,' W. O. Wren secretly made application for letters patent and assigned the rights to the letters to George, who all the while well knew Annin’s rights and the circumstances on which they were based. George then obtained the letters in his own name.

The special service of invemtvng under a special employment to invent gives the master the servant’s invention which results from that service. (Simonds Manual of Patent Law [ed. 1883], pp. 202, 204.) This is also the principle of that part of the decision of Burr v. De La Vergne (102 N. Y., 415), which relates to the inventions made by De La Vergne alone. The same is true of Binney v. Annan (9 Am. Rep., 10; S. C., 107; Mass., 94). None of the patent cases are inconsistent with the principle above indicated. Even in Hapgood v. Hewitt (11 Fed. Rep., 422; lately affirmed, 119 U. S. Rep.), 227. Judge Gresham excepts the case of a special employment to invent. The special service of inventing is the entire scope of the employment. There is no room left within the employment for inventing on his own hook. The servant has no right to think or invent for himself on this particular subject matter in hand. He must get out of such a relation before he can claim the product of his work under such an employment. He cannot carry oft; both his salary and the only valuable product of his work under such an employment, leaving his master with his useless models, the results of his uselessly spent money on tools, machinery, time, labor of self and employees, with only a license or shop right which is not assignable or useful in any way save to himself. Such a result would necessarily defeat the.whole purpose of the contract and the contracting parties. The cases resulting in mere license were those of general employment; at all events, they were not special employments for the limited service of inventing. Plaintiff was so careful to confine this man to this particular work that he made special arrangements with him when he did anything else. There is no ground for doubting the jurisdiction of this Court to adjudge this matter of Annin’s right to this invention as a piece of property wrongfully diverted from him to George Wren, on the theory of a violation of trust relations and obligations. (Hat Sweat Co. v. Reinohel, 102 N. Y., 167; Cont. S. S. Co. v. Clark, 100 id., 365; see, also, Middlebrook v. Broadbent, 47 N. Y., 444; Bebee v. McKenzie, id., 662; De Witt v. Elmira Nobles Mfg. Co., 66 id, 459; Page v. Dickerson, 10 Am., 532; Binney v. Annan, 107 Mass., 94.) The federal courts have held that they have no jurisdiction in such cases unless by reason of the citizenship of parties. (Hartell v. Tilghman, 99 U. S., 547; Wilson v. Sandford, 10 How. [U. S.], 99; Brown v. Shannon, 20 id., 56; Albright v. Teas, 16 Otto, 613; Blanchard v. Sprague, 1 Clifford, 288; Hill v. Whitcomb, 1 Holmes, [U. S.], 317; Goodyear v. Union Rubber Co., 4 Blatch., 63; Messerole v. Union P. C. Co., 6 id., 356.) The judgment was confined to the power indicated by Com. S. S. Co. v. Clark (100 N. Y., 335).

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    SARAH WORTMAN and Others, Respondents, v. MARY A. ROBINSON, Appellant, Impleaded with the BOWERY SAVINGS BANK and Others.

      Will — validity of an executoiy devise of a remainder, where the tenant for life has power to dispose of the principal for her own use — the residue not used cannot he ’assigned by her.

    By the second clause of his will a testator gave, devised and bequeathed unto his beloved wife all his estate, real and personal, of which he might die seized or possessed, and wheresoever situate, or so much thereof as she might use during her life. By the third clause he gave, devised and bequeathed unto certain persons therein named “ the rest, residue and remainder of the estate of which I (the testator) may die seized or possessed, and which shall remain unused at the death of my (his) said wife, share and share alike.”

      Held, that the devise of the remainder was valid, and that the wife had no power to assign moneys belonging to the estate which were, at the time of the assignment and of her death, deposited in a bank.
    Appeal from an interlocutory judgment entered in Queens county overruling the demurrer, to the amended complaint herein, interposed by the defendant Mary A. Robinson.
    On or about the 17th day of February, 1881, Joseph Robinson died, having previously made his last will, dated the 16th day of March, 1883, which was admitted to probate in Kings county on the 31st day of March, 1881. By said will the defendant, Charles E. H. Robinson, was appointed executor, and duly qualified as such on the day of probate. Harriet Robinson, the widow of testator, died on. the 5th day of May, 1881.
    By the second clause of his will the testator gave to said Harriet Robinson “ all my estate, real and personal, of which I may die seized or possessed, and wheresoever situate, or so much thereof as she may use during her life; and by the third clause he gave and bequeathed unto certain persons therein named ‘ the rest, residue and remainder of the estate of which I may die seized or possessed, and which shall remain unused at the death of my said wife, share and share alike.’ ”

      John W. Fiske, for the appellant.

      Ha/rrison S. Moore, for the respondents.
   Dykman, J.:

The material facts arrayed in the complaint in this action are these: Joseph Robinson died in February, 1884, leaving a last will and testament, which forms a component part of the complaint, and which will receive more attention later on. At the time of the death of the testator, he had upon deposit in the savings bank, in the name of Joseph and Harriet Robinson, the sum of $3,000, of which he was the sole owner, and the bank book issued by the savings bank to the testator was found with other bank books and property of the testator, and went into the possession of his executor. Harriet Robinson died in May, 1884, and the money then remained in the bank, and Mary A. Robinson claims the same under an assignment from Harriet Robinson, which the plaintiffs allege was procured by fraud, force and undue influence.

The action is in equity to obtain a judgment declaring the assignment void, and permitting a recovery against Mary A. Robinson for $600 of the money, which she has drawn from the bank, and against the bank for the balance. The defendants interposed a demurrer to the complaint, which was overruled by the trial court, and we now have an appeal from the judgment and the order directing the same.

The allegation of the complaint respecting the money in question is that the testator, at the time of his death, had on deposit in the savings bank, in the name of Joseph and Harriet Robinson, the sum of about $3,000, of which he was the sole owner, and upon this assumption of the truth of this averment the fund belonged to the testator, notwithstanding the form and mode of deposit, and passed to the beneficiaries under his will. No effect can, therefore, be afforded to the assignment of Harriet Robinson, for she had nothing to assign under this view of the complaint. It will become necessary, therefore, to ascertain the direction given to the money by the will of the testator, and this is the controlling clause: Second. I devise and bequeath unto my beloved wife, Harriet Robinson, all my estate, real and personal, of which I may die seized or possessed and wheresoever situate, or so much thereof as she may use during her lifetime.” The third clause creates an executory devise- to the plaintiff of the residue of the estate remaining unused at the death of the wife. The executory devise is dependent upon the failure of the first taker to execute the absolute beneficial power of disposition, which was vested in her by the second clause, and the invalidity of such limitation- is claimed by the defendants upon, the authority of Jackson v. Buel (10 Johns., 19); Van Horn v. Campbell (100 N. Y., 287), and similar cases of the same kind. Under these authorities it is' claimed that the gift over is absolutely void, independent of the question respecting the exercise of the power of disposition, but we cannot coincide with that view.

The language of the will is quite peculiar, and does not give all the estate, but only so much thereof as the wife may use during her life, and the residue unused at her death is given to the plaintiff. The intention of the testator is thus plainly evinced to give his wife so much of his estate as she desires to use during her life, and give the unused portion to the plaintiffs, and our conclusion is that such testamentary intention may be perpetuated even at common 'law, independently of the question of the effect of the provisions of- our ^Revised. Statutes affecting the question. Under this view, fit ¡was ’■ beyorid1 the power of the wife to assign to the appellant 'the undisposed' -portion of this fund, and the complaint states a good cause-of- action'in favor of the plaintiffs.

The judgment should be-affirmed, with costs.

Pratt, . J,, concurred.

Judgment and order directing same upon overruling demurrer to plaintiffs’ complaint affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT F. WOEHR v. COL. EDWARD FACKNER, Commanding Officer of the Thirteenth Regiment, National Guard, State of New York.

      Regulations of the State militia — á non-commissioned officer may be reduced to the ranks by order of the commanding officer, without being afforded any opportunity to be heard.

    Section 163 of the regulations governing the military forces of this State provides that “non-commissioned officers may be returned or reduced to the ranks by the commanding officer of the organization (officerj issuing warrants), on their own request in writing, approved by their immediate commander, or for cause on the application of their immediate commander, or by the sentence of a .court martial.”

      Held, that upon the request of a captain of a company, requesting the colonel of the regiment to reduce to the ranks a non-commissioned officer upon the ground, :among others, of disobedience of orders, the colonel may issue an order returning the non-commissioned officer to the ranks without affording him any opportunity for a hearing upon the charge made against him.
    Certiorari to review tlie action of the respondent, the commanding officer of tbe Thirteenth Regiment, National Guard, State of New York, in removing the relator from the office of corporal in company H of the «.aid regiment and returning him to the ranks.
    On the 1st day of October, 1886, the defendant, the Colonel of the regiment above mentioned issued an order purporting to return the relator to the ranks, “ upon request of his immediate commanding officer, for cause.” The “ immediate commanding officer ” was the Captain of company Ii. The relator had preferred no request to be returned to the ranks; neither had he been tried for any offense by a court-martial. No notice whatever of any proceedings to return him to the ranks had been given to said relator, nor was any opportunity given him to be heard in his defense before the order was issued. Hpon being served with the said order, which service was the first notice to the relator of any proceedings to return him to the ranks, said relator asked that he might be heard in answer to any charges which might have been laid against him, which said request was denied by the said defendant. The said order was carried into effect on the 7th day of October, 1886 ; and on the 12th of Octob r, 1886, the writ of certiorari herein was allowed.

      Section 50 of the. Military Code (1888, chap. 299 as affected by 1881, chaps. 91, 322, 323, and 1885, chaps. 268, 310), provides: “Non-commissioned officers, if enlisted men, may be reduced to the ranks by the commander of the organization to which they belong,” etc. Section 163 of the Regulations provides: “ Non-commissioned officers may be returned or reduced to the ranks by the commanding officer of the organization (officer issuing warrants) on their own request, in writing, approved by their immediate commander, or for cause on the application of their immediate commander, or by sentence of a court-martial.”

      Russell Benedict, for the relator.

      Almet F. J suits, for the respondent.
   Dykman, J.:

This is a proceeding by certiorari to review the action of the respondent, who is a colonel of a regiment of New York State militia. When the relator enlisted and became a member of that organization he consented to all the laws and regulations appertaining thereto, and agreed to abide and obey them, and be bound and controlled by them in all matters relating to his military life and conduct.

One of the sections of the Military Code of this State provides for the reduction of non-commissioned officers to the ranks by the commander of- the organization to which they belong. (Military Code, § 50.) That statute is supplemented by the military regulations of the State, which also have the force of law, providing for the reduction of non-commissioned officers to the ranks, for cause, on the application of their immediate commander. The relator was a non-commissioned officer of his company, and his captain addressed a written communication to the defendant, as colonel of the regiment and its commanding officer, requesting the reduction to the ranks of the relator for disobedience of orders among other reasons. TJpon that request the relator was returned to the ranks by order of the respondent. Now the relator insists that he should be afforded an opportunity for a hearing and vindication from the charge before his reduction to the ranks for cause. The military regulations of the State, however, provide for the return of non-commissioned officers to the ranks, either upon their own request approved by their immediate commander, or for cause, upon the application of their immediate commander, or by the sentence of a court-martial. That regulation seems to be a sufficient vindication and justification of the action of the respondent brought under review by this writ, and sustains his proceedings.

The proceedings should be affirmed, with costs.

Pratt, J., concurred.

Order affirmed.


text:
    GEORGE F. BOLEN, Appellant, v. MARY A. BOLEN, Respondent.

      Agreement between husband and wife to discontinue an action for divorce and resume marital relations — right of the husband to recover property transferred in consideration thereof to the wife, on her breach of the agreement.

    The defendant having left the residence of her husband, the plaintiff, and commenced an action against him for a divorce on the ground of his adultery, an agreement was entered into between them by the terms of which the action was to be settled and discontinued, and the defendant was to return to her husband and live with him and a son of his and perform her duties as his lawful wife and the husband agreed to, and thereafter did, execute and deliver to a third person a bond and mortgage for $8,000 for the use of the defendant, which was to be, and was, assigned to her. The defendant returned to the residence of the husband, but refused to permit the return of the son thereto, and left the house when he was brought to it. The husband thereupon brought this action to procure tbe bond and mortgage to be canceled and surrendered.

      Held, that he was entitled to the relief sought.

      BucMin v. Bucldin (1 Abb. Ot. App. Dec., 343) explained and distinguished.
    Appeal from a judgment dismissing the complaint, entered in Kings county upon the trial of this action by the court without a jul7*

      Joseph A. Shoudy, for the appellant.

      Kelly (& Macrae, for the respondent.
   Dykman, J.:

The plaintiff and defendant wore married in August, 1884, and in May, 1885, the defendant took her departure from the residence of her husband and commenced an action against him for a dissolution of the matrimonial bonds between herself and her husband, for certain unlawful acts on Ids part, which were charged in the complaint. A settlement and discontinuance of that action was effected, by the terms of which the defendant undertook to return to her husband and live with him, and perform her duties as his lawful wife. The plaintiff was to be allowed to keep his boy, George Bolen, in his house and family as a member thereof. The plaintiff was to and did execute and deliver to a third person, a bond and mortgage for the payment of $3,000 for the use of the defendant, which was to be and was assigned to her, and she now holds the same. The defendant returned to the residence of her husband, but refused to permit the return of the boy, and threatened to leave the plaintiff’s house as soon as the child was brought there to reside, and finally, when he was- brought to the house to live, she executed her threat and left her home, and persists in her refusal to return and live with the plaintiff as his wife. Thereupon this action was commenced to procure the cancellation and surrender of the bond and mortgage. Upon the trial the complaint was dismissed, without costs, and now the plaintiff has appealed from the judgment.

The decision at Special Term was dictated by the case of Bucklin v. Bucklin (1 Abb. Ct. App. Dec., 212), which was held there to be a controlling authority; but our examination of that case leads us to no such conclusion. On the contrary, we find but little similarity between these two cases. In the case cited, for the purposes of a compromise of a controversy between husband and wife, and to arrest the prosecution of an action commenced by the wife against her husband for a judicial separation and a separate maintenance for herself and her infant daughter, the husband agreed to make provision for the support of his wife and the infant child, together, separate from himself, and convey a house and lot to the child within six months. To effectuate such settlement, the mortgage involved in that action was executed by the husband to Yedder Green, in trust for the wife and infant daughter, reciting the settlement and its terms, and after providing for the wife and daughter, pursuant to the terms of the compromise, the following language was employed: “Now, for the purpose of securing the performanee by the said William of the aforesaid agreement and covenant on his part to be performed, this indenture witnesseth.” Then one of the provisions of the mortgage was that the husband, within six months, should convey to the infant daughter real property of the value of $1,000, and that if the conditions were broken and it became necessary to enforce the mortgage, the amount recovered thereon should bé for the benefit of the wife and infant daughter. The husband performed his agreement so far as the wife was concerned, until her death, but lailed to convey the real property to the daughter, and after the death of her mother she commenced an action to foreclose the mortgage for the sum of $1,000, and the Court of Appeals held and decided that, so far as the mortgage was sought to be enforced, it was created to secure to the plaintiff, when an infant child, a portion of her father’s property to aid in her maintenance during her infancy, and to furnish her with a small independent estate in real property. And the court further held, in accord with a long line of decisions, that where the rights of creditors did not intervene, as they did not in that case, it was perfectly lawful for a parent to make such a provision out of his estate for a child or children by present gift, and that an executed gift of that character was as valid and effectual as though based upon a full pecuniary consideration.

This lengthy abstract of that case has been made to show plainly that it, the decision, was based npon principles that have no application to this action. This plaintiff never undertook to make any pecuniary provision for his wife and never was under any legal obligation to do so. She never, so far as we know, made any claim against him for a separate maintenance or for anything of a pecuniary value. If she had a cause of action against him for an absolute divorce it rested in right only, and was founded upon his misconduct which she might condone and sweep away, and which, if forgiven, formed no basis for a money demand.

The settlement was made by the plaintiff to secure the return of his wife and the restoration of his family under one roof, and the mortgage had that consideration and no more, and the condition of its execution was the return of his wife and her continuance at his home, and her performance of her duties there as his lawful wife. She has refused to perform her portion of that agreement and violated that condition upon which she received the mortgage. There is nothing to indicate an intention on the part of the plaintiff to make a donation of the bond and mortgage to 'his wife, and nothing to show that the discontinuance of the action was the consideration for their execution. On the contrary, it plainly appears that the procurement of the agreement and consent of the wife to the return of the boy was the chief inducement to the execution and delivery of the securities, and it would be extremely unjust and plainly inequitable to permit the defendant to retain and enjoy the fruits of a contract which she repudiates and violates and refuses to perform.

The contract between the parties was that the defendant should return to her loyalty and perform the duties of a wife to the plaintiff for all time during her life, and permit his son to remain under his roof and constitute a member of his family, and also discontinue her action which the plaintiff alleges, without contradiction, was baseless; and for all that, the defendant was to execute the mortgage in question. He has performed and she has not, and without performance she cannot retain the mortgage. Upon the facts found by the trial judge the plaintiff was entitled to the relief he sought, but it cannot be administered upon this appeal.

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

Barnard, P. J., and Pratt, J., concurred.

Judgment reversed and new trial granted; costs to abide event.


text:
    CHARLES DAVIS, Respondent, v. ISABELLA M. DAVIS, ELIZABETH M. DAVIS and HENRY DAVIS, Infants, Appellants, Impleaded, etc.

      W'ill — when a limitation over to surviving children does not include grandchildren.

    In July, 1884, Henry Davis died leaving a will, executed on September 6, 1875, by which he gave and bequeathed all his “ real estate in fee simple to my (his) three sons, Henry Davis, Charles Davis and James Albert Davis, and the survivor and survivors of them in case either dies before me without issue, and in case either dies before me leaving issue the share of such deceased child shall go to such issue.” The son Henry died in December, 1880, leaving three children, who are still living. James Albert died, without issue, in February, 1882.

      Held, that upon the death of Henry his share passed to his children, and upon the death of James Albert his share passed to his brother Charles. (Barnard, P. J., dissenting.)
    Appeal from a judgment, entered in Kings county, upon the trial of this action, which was brought for the partition and sale of the real estate of Henry Davis, deceased.

      James JR. Stern, Jr., for the appellants.

      George V. Brown, for the respondent.
   Dykman, J.:

This is an action for the partition of real property and the appeal is from the portion of the judgment which prescribes the rights and interests of the parties in the premises involved ; it being the contention of the appellants that such rights are erroneously defined by the judgment, which should be modified in that respect.

A more comprehensive and intelligent view of the case will be obtained by the introduction of a few facts. The source of title was Henry Davis, who made and executed his last will and testament on the sixth day of September, 1875. That portion of the will which holds and controls this case reads as follows: “ First, after all my lawful debts are paid and discharged I give and bequeath all my real estate in fee simple to my three sons, Henry Davis, Charles Davis and James Albert Davis, and the survivor and survivors of them in case either dies before me without issue, and in case either dies before me leaving issue the share of such deceased child shall go to such issue.”

Henry died while his father lived, in December, 1880, leaving three children, Elizabeth M. Davis, Isabella M. Davis and Henry Davis, defendants and appellants in this action.

James Albert died also while his father lived, in February, 1882, without issue, and the testator died in July, 1884, leaving the plaintiff in this action, Charles Davis, the only survivor of his three sons to whom the devise was made.

These facts and circumstances exhibit the question presented for our solution by this appeal and our conclusions are to be written thus; The primary devise was to the three sons, and then in contemplation of the death of either, provision is made for the devolution of the share of either upon the survivor or survivors if either died before the testator without issue; and if either died before the testator leaving issue, then his share passed to such issue. When, therefore, Henry died, his share was released to his children, and when James Albert died childless, his share was released to his brother Charles, because he was the survivor of them, and the limitation is confined to the children of the testator. The devise is to his three sons, and the survivor and survivors of them,” meaning his child or children left alive.

Henry died before the testator, and therefore never took his share, but it passed to his children as we have seen. James Albert also died before the testator, and never took his share under the devise, but we can put no one in his place but a surviving child of the testator. His share was disposed of by the will, and passed to his brother Charles, one of the three original devisees and the survivor of them.

The judgment appealed from being entered in accordance with these views should be affirmed, with costs.

Pratt, J., concurred. Barnard, P. J., dissented.

Judgment affirmed, with costs.


author: Pratt, J.:

text:
    ISAAC B. POTTER and GEORGE P. ALEXANDER, Respondents, v. THE NEW YORK INFANT ASYLUM, Appellant.

      Corporation — power of its president to employ counsel — when the corporation is responsible f or legal services which have produced a benefit accepted by it.

    This action, brought by the plaintiffs to recover for legal services performed by them in certain proceedings instituted to restrain the board of supervisors from levying a tax upon the property of the defendant corporation, was defended by it upon the ground that the plaintiffs were not employed by resolution of the board of managers, as required by its charter, nor by any person, possessing authority under any such resolution to bind the corporation. It appeared that the services were rendered at the request of the president of the corporation, who was an attorney, and in fact controlled the litigations of the corporation; that he had employed lawyers on other occasions, who had been paid for the services so rendered.

      Held, that the power of the president of a corporation to employ counsel in legal proceedings where the corporation is interested is well established.

      Inswance Company v. Oakley (9 Paige Ch„ 496); Bank v. Bank (10 Wall., 604) followed.
    That, irrespective of the power of the president to employ counsel, the action could be maintained upon the ground that the work of the plaintiff was highly meritorious, and that various officers of the defendant corporation had actual notice that the plaintiffs were engaged in legal work for the corporation under the supervision of the president.
    That as the corporation had enjoyed the benefits of the contract, it could not escape from such responsibility as the law implies from such acceptance and enjoyment of the benefits, by pleading an irregularity in the making of it.
    Appeal from a judgment in favor of the plaintiffs entered upon the report of a referee.

      Ciarle Bell, for the appellant.

      C. J. Potter, for the respondent.
   Pratt, J.:

The plaintiffs recovered before the referee $516 for legal services performed by them in certain proceedings instituted in behalf of defendant to restrain the board of supervisors of Westchester county from levying a tax upon property of the Infant Asylum.

The performance off the service was abundantly proved and the value as found by referee is expressly conceded not to be against the weight of evidence or excessive. The ground upon which the defendant’s liability is' contested is that plaintiffs were not employed by resolution of the board of managers, nor by any person possessing authority under any such resolution to bind the defendant corporation; special reference being had to a clause in the charter which recites that five managers shall constitute a quorum of the board for the transaction of ordinary business, but that no contract shall be made involving an expenditure of more than $500, without the presence of a majority of the managers. The services were performed upon the request of the president of the corporation. He was an attorney-at-law, and although it is not proved that any express authority therefor was given him by the board of managers, he in fact controlled the litigations of defendants. These were shown to he numerous. As they occupied the time of the president night and day ” he found occasion to obtain the aid of many lawyers. In no case does it appear that the board of managers were consulted in advance of employment. It would appear that in most cases the action of the president was ratified by paying for the services. In one instance not until legal proceedings were begun for collection. In the present case the services continued several months under the general supervision of the president. Plaintiff prepared the complaint in the action which the president signed as attorney for the asylum. One of the plaintiffs prepared the brief for the argument at Special Term and opened the discussion there. ITpoh. the hearing an affidavit was used in defendant’s behalf, which fecited that one of the plaintiffs was counsel for the asylum. The printed argument at General Term prepared by one of the plaintiffs, was followed by the reversal of the adverse ruling at Special Term and the property of the asylum was exempted from taxation. The annual tax had been'about $900 a year, and the exemption is still enjoyed. That the president of a corporation has a general authority to employ counsel to assist in legal proceedings where the corporation is interested, is well established. (Insurance Co. v. Oakley, 9 Paige Ch., 496.) So as to a cashier. (Bank v. Bank, 10 Wall., 604.)

In Root v. Olcott(42 Hun, 536) the court say the power is indispensable for the protection of corporations, and that its abuse can be easily remedied by the removal of the indiscreet officer. Irrespective of the power of the president to employ counsel, the recovery below may be sustained tipon other grounds. The work of the plaintiffs was highly meritorious. Its performance required many months ; various officers of defendants had actual notice that plaintiffs were engaged in legal work for the corporation under the supervision of their president. It does not appear that they concerned, themselves as to any of the conditions of the employment. The conduct of defendants can be explained in two ways. Either they had confidence.iii the discretion and good judgment of their president and were willing to abide by his acts, or they confided in their supposed inability to Contract liabilities without a formal resolution of the board, and were willing plaintiff’s services should -continue to the ‘-benefit of defendants, without any corresponding liability. In either case good morals require that the laborer should receive his hire. Nor do we find any difficulty from the restriction, in the ■charter, of defendants’ power to contract. An infant is not bound 'by his contracts, yet if he purchases necessaries he is bound to respond, not for the price he has agreed to pay, but for the price the goods are reasonably worth — the price he ought to pay irrespective of any agreement. In other words, the infant not liable upon contracts made by himself is liable upon contracts made for liim by the law. So a corporation which has enjoyed the benefit ,of a contract cannot escape such responsibility as the law implies -from the acceptance and enjoyment of its benefits by pleading irregularity in the making. Even when the contract is one the corporation had no right to make, after it is executed and the benefits received, lit is held that to allow the plea of ultra vires to prevail would be ito encourage fraud. (Rider Life Raft Co. v. Roach, 97 N. Y., 381; Whitney Arms Co. v. Barlow, 63 N. Y., 70.) When, upon the request of an agent of a corporation, money has been loaned, goods supplied, or services performed, and the corporation has received .the benefit, to hold it absolved from liability because the agent went beyond the letter of his power would be, in the language of the cases, to encourage fraud. As well remarked by Brady, J., in Root v. Olcott, an abuse of the agent’s power can be speedily remedied by removal of the indiscreet officer. And if the liability is restricted to a quantum meruit, no injustice can be done to the corporation.

It follows that .the judgment appealed from should be affirmed, ■with costs.

'Present — Barnard, P. J., Dykman and Prato, JJ.

.Judgment'affirmed, with costs.


author: Barnard, P. J.;

text:
    STEPHEN JENNEY and Others, Respondents, v. THE CITY OF BROOKLYN, Appellant.

      Negligence — action against a city for damages caused, by the bursting of a hydrant through its improper construction.

    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, at the Kings County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought against the city of Brooklyn to recover-the damages inflicted upon the oil works of plaintiffs, situate in said city, by a flood of water in Kent avenue. It was alleged that, the defendant had placed a water-main and erected and constructed a certain fire hydrant on the sidewalk, between the curb-stone and the wall of plaintiffs’ oil works, and had connected the same with the said main pipo; that it had negligently .failed, through unskillful workmanship, to construct said coupling of said hydrant with the said main, of substantial materials and of sufficient strength to. resist the pressure or head of water in that location; that, on the 16th day of June, 1885, between three and four o’clock in the morning, the pressure of the water detached the hydrant from the said main pipe, casting a flood of water on the street, and from thence over the works of plaintiffs, which were below the level of the street. The defendant set up that the liability, if any were established, was cast upon the Department of City Works, and not upon the city of Brooklyn ; and further denied that the defendant had in any way been negligent either in the construction of the hydrant, the waterr-main, or the connection made between the two.
    The court at General Term said : “ There was sufficient proof of negligence to go to the jury. The injury was alleged in the complaint to have resulted from the blowing out of a hydrant put in one of the streets of the city by the defendant through one of its departments. The proof shows that this hydrant was put in position in November, 1884. It was proven that it blew out in June, 1885, in the night. There was no eye-witness, but the circumstances pointed unmistakably to the fact that the hydrant was detached at its elbow under the gutter of the street. The water came from that place after the accident, and the hydrant was gone from its place. The hydrant was put there to stand the pressure of the water and it failed in less than a year. When an accident, in the ordinary course of events, would not happen without great neglect, the facts proven to that end may go to a jury. If the case was properly for a jury, then the proof that the elbow was well made, as proven by the workmen who did it or caused it to be done, only makes a question of fact for the jury. Upon the whole case it is a fair conclusion that there was a neglect in the construction of the appurtenances to the hydrant. Assuming this to be the fact, the city is liable under the case of Seifert v. The City of Brooklyn (101 N. Y., 136). It was held in that case that section 27, title 19, chapter 863, Laws of 1873, did not exempt the city from liability when the injury resulted from work done, originally defective or continued after notice. The jury found that the hydrant was originally constructed without due care.”
    The judgment should be affirmed, with costs.

      Almet F. Jenks, for the appellant.

      M. F. Stearns and I). P. Barnard, for the respondents.
   Opinion by

Barnard, P. J.;

Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.;

text:
    JOHN HAYES, Appellant, v. GEORGE W. CARR, Respondent, Impleaded, etc.

      Injunction — when an assignee of a judgment for costs will he restrained from enforcing it on the ground that his assignor was insolvent and, largely indebted to the person against whom it was recovered.

    Appeal by the plaintiff from an order of the Special Term, vacating, as to the defendant Carr, an order enjoining the enforcement of a judgment for costs recovered by the defendant Rabold against the plaintiff, and by Rabold assigned to Carr.
    The court at General Term said: “ Catharine E. Rabold, one of the defendants in this action recovered a judgment against the plaintiff for the costs in an action by the plaintiff against her, which she assigned to the defendant Carr, her lawyer in that action, for his services. At the time of that assignment the assignee was indebted to the plaintiff in a large amount for rent. Such being the situation and relation of the parties, the plaintiff commenced this action to obtain a judgment against the defendant Rabold for the amount due from her to the plaintiff for rent, after the deduction therefrom of the judgment against him, and a restraint of the enforcement of the judgment by the defendant Carr, the assignee thereof.
    “A preliminary injunction restraining the enforcement of the judgment during the pendency of this action was procured at its commencement, which was vacated on notice, and from the order of vacation we have this appeal. The complaint malees a case for the interposition of the court, and it would be quite inequitable to permit the enforcement of the judgment by the assignee while the insolvent assignor remains indebted to the plaintiff in a large amount of money. The assignee received the assignment subject to all the equities existing between the original parties, and those equities should be adjusted by the judgment of the court before he is permitted to institute any proceedings for the collection of his judgment.
    “The order appealed from should be reversed, with ten dollars costs and disbursements.”

      A. J. Moore and Samuel J. Crooks, for the appellant.

      George W. Carr, respondent in person.
   Opinion by

Dykman, J.;

Pratt, J. concurred.

Order vacating injunction as to Carr reversed, with costs and disbursements.


author: Van Brunt, P. J.:

text:
    HENRY WARNER, as Assignee of PENN BANK, Appellant, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK and ALEXANDER V. DAVIDSON, Late Sheriff, etc., Respondents.

      Attachment — to constitute a valid levy on pledged securities they must he taken into the actual custody of the sheriff — ■ Code of Civil Procedure, sec. 649.
    On May 21,1884, the defendant began an action against the Penn Bank, a foreign corporation, to recover money due from it, and obtained therein an attachment. A copy of the warrant was, on May twentieth, served by the sheriff upon the American Exchange National Bank, to which corporation the Penn Bank had, on May thirteenth, delivered a large amount of negotiable securities, among which were notes of two corporations, as security for a loan on that day made by the said American Exchange National Bank to the Penn Bank, which loan was less than the face of the securities. A copy of the warrant, accompanied with a notice showing that the interest of the Penn Bank was attached, was served upon the American Exchange Bank and the makers of the notes.

      Held, that, as the title of the securities was at the time the warrant was issued in the Penn Bank, no lien was acquired thereon by such service of the warrant and notice, as the sheriff did not take them into his actual custody as was' required by section 649 of the Code of Civil Procedure.

      Anthony v. Wood (96 N. Y., 180) followed; Clark v. Goodridge (41 id., 210) and Brownell v. Carnley (3 Duer, 9) distinguished.
    The difference in the rules prescribing what constitutes a valid levy in the case of executions and the case of attachments, stated and commented on by Van Brunt, P. J.

      Appeal from a -judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    Upon May 13, 1884, the Penn Bank, a foreign corporation, delivered to the American Exchange National Blank, of New York, a large amount of negotiable securities, among others notes of McCalmont Oil Company for $2,500, and notes of American Tube and Iron Company for $6,200, as collateral security for a loan then made to the Penn Bank by the American Exchange National Bank, which loan was less than the face of the securities. On May 21,1884, the defendant, the Fourth National Bank, began an action against the Penn Bank to recover $10,000, and obtained an attachment. Upon the twentieth day of May the sheriff served copies of said warrant upon the American Exchange National Bank, who still held said securities, and upon the McCalmont Company and the Tube and Iron Company. The copy warrant was accompanied by a notice showing that the interest of the Penn Bank was attached. On May twenty-eighth the Penn Bank made, at Pittsburg, a general assignment under the statutes of Pennsylvania, to the plaintiff. Upon July 26, 1884, the Fourth National Bank perfected judgment in its action aforesaid, and issued' execution to the sheriff against the attached property. Tlie" American Exchange National Bank proceeded to collect the securities pledged to it as aforesaid, and after paying the amount of its- advances there remained in its hands about $5,000. Claims being made by the sheriff and the assignee of the Penn Bank to this fund, the American Exchange National Bank interpleaded the parties in this action and paid the fund into court. The action was tried at Special Term, and the defendants obtained judgment for the.fund, from which judgment this appeal is taken.

      James Watson, for the appellant.

      David Wilcox, for the respondents.
   Van Brunt, P. J.:

The appellant claims that if the title to this paper was in the Penn Bank at the time the attachment was served, that no lien was acquired because, the sheriff did not take the paper into his actual custody.

Section 649 of the Code of Civil Procedure prescribes the method of levy under an attachment. It provides that a levy under an attachment must be made upon personal property capable of manual delivery, including a bond, promissory note or other instrument for the payment of money by taking the same into the sheriff’s actual custody. Upon other personal property by leaving a certified copy, etc.

In the case of Anthony v. Wood (96 N. Y., 180), the court expressly decided that until the officer has obtained the actual custody of the property, he has made no levy under an attachment and can make none. In that case, however, the property sought to be reached was absolutely the defendants and no one had any claim to possession except the defendant, and therefore the property was so situate that it was capable of manual delivery. But in case the property has been pledged, does a different rule prevail ?

It is claimed by the respondents that when personal property, although capable of manual delivery, has been pledged, it comes within the description of personal property incapable of manual delivery because the sheriff could not wrest it from the pledgee in defiance of his prior rights, and that this is so plain that it needs no argument to demonstrate. It would seem to be the just and equitable view to take of the question, but we cannot see how the statute can be construed in that way. The difficulty seems to be that it is not so denominated in the bond and no argument can repeal the express wording of the statute. Where the property is of a character which can be taken possession of by the sheriff, he must levy under an attachment, the Code says, by taking it into his actual custody. A promissory note is mentioned among those things in the very section as capable of manual delivery, and hence must be taken -into the actual custody of the sheriff or no levy is made under an attachment. A different rule prevails as to a levy under an execution.

In order to constitute a valid levy, under an execution, it is not necessary that the sheriff should take actual possession of the property levied upon. (Crocker on Sheriffs, § 436.) And, hence, a course of procedure which may create a valid lien, by levy, under an execution, is of no effect when an attachment is the process under which the procedure is taken. Under an attachment the levy upon negotiable securites must be made, as the court say in Anthony v. Wood (supra), quoting from the Code, by the sheriff “ taking the same into (his) the sheriff’s actual custody,who must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of the affidavits upon which it was granted. No other mode is j>reseribed. Nothing else will constitute the levy. Until the officer has obtained the actual custody he has made no levy and can make none. He is armed with power to get such custody. He may proceed by actual or special proceeding to reach that result, but until he has reached it he has made no levy and can make none. We have nothing to do with the wisdom of the rule. We can only enforce'it as it is plainly written.”

The cases cited of Clarke v. Goodridge (41 N. Y., 210), and of Brownell v. Carnley (3 Duer, 9) relate to the provisions of the old Code of Procedure. Such Code contained no such requirements as 'are contained in the Code of Civil Procedure, and if- the Civil Code has made it impossible to reach, by attachment, the surplus arising from assets pledged, as it seems to have done, it is one of those improvements which has to a very great degree destroyed the effectiveness of the process of attachment. It being conceded by the respondent that the Penn Bank was the owner of the notes notwithstanding the pledge, then no effectual levy was made and the property passed .to the plaintiff by the assignment of the Penn Bank.

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

Brady and Daniels, JJ., concurred.

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


text:
    HENRY BEDLOW, in His Own Right and as Administrator, etc., of EDWARD A. BEDLOW, Deceased, and Others, Appellants, v. THE NEW YORK FLOATING DRY DOCK COMPANY, Respondent.

      Rights of owners of uplands in New Tork city to land between high and low-water mark — when a possessory action to recover a pier erected by authority of the city will not lie — when a tenant may retain an interest in adjacent lands, acquired by him in his capacity of tenant.

    An owner of lands in the city of New York, fronting on the East river, has no rights whatever in respect to the lands below high and low-water mark, except such as he may have derived by a grant from the owner thereof, the corporation of the city of New York.

      Furman v. New Tork (5 Sandf., 16; affirmed 10 N. Y., 567) followed; Tates v. Milwaukee (10 Wall., 497); Weber v. Harbor Commissioners (18 id., 64) distinguished.
    Where the corporation authorizes the construction of a pier by other persons, in disregard of the privileges conferred upon the adjacent owners by the acts of the legislature, the remedy of the party aggrieved is by an action to recover damages for the specific wrong he has suffered by being deprived of the opportunity to contribute to the expense of construction, and of thereby acquiring an interest in the pier, and not by a possessory action to recover the same. Whitney v. The Mayor (6 Abb. N. 0., 839) followed; Langdon v. Mayor (93 N. Y., 129) distinguished.
    The rule that where a tenant of land acquires an interest in adjacent lands, by reason of such tenancy and for the use of the leased premises, it enures to his benefit only while the tenancy continues, and that on the expiration of the tenancy it reverts to the landlord, is not applicable to any cases in which it is not proved that the interest in the adjacent lands was acquired for the use of the leased premises.
    Appeal from a judgment, entered upon the decision of the court at circuit dismissing the complaint, with costs, the trial having been had before the court without a jury.
    By the Dongan charter of 1686, the city of New York was granted the title of all the land situate between high and low-water mark surrounding the island of Manhattan. By the Montgomery charter of 1730 there was granted to the city of New York from the north side of Corleara Hook to Whitehall all the land under water for 400 feet from low-water mark into the East river. In April, 1798, the corporation of the city of New York was empowered to lay out streets and wharves in front of those parts of the city adjoining the rivers and along the rivers as it might think proper, at the expense of the proprietors of the land adjoining or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots, and by the act of 1801 the corporation was empowered to direct piers to be sunk and completed in front of said streets or wharves, at the expense of said proprietors, and if the proprietors should neglect or refuse to make the said piers the corporation was empowered to build the said piers itself, and receive to its own use all the wharfage, derived therefrom, and by the act of April 2, 1806, it was also empowered to grant the right to make such piers, and the right of receiving the profits thereof, to any jierson or persons, in fee or otherwise, upon such terms as it may think proper. Prior to November, 1806, Ilenry Rutgers was the owner of certain property in the city of New York, situated between Montgomery and Clinton streets, fronting on the East river. In November, 1806, the mayor, aldermen and commonalty of the city of New York by deed granted to said Rutgers, his heirs and assigns forever, amongst other property, a lot of land opposite to that part of the ground hereinbefore mentioned, containing in depth on the west side ninety-four feet and on the east side eighty-six feet, and in front, on the East river or harbor of said city, ninety-two feet six inches, together with all and singular the easements, profits, commodities, advantages emoluments, hereditaments and appurtenances to the said lot of ground belonging or in anywise appertaining. In said deed the said Ilenry Rutgers covenanted for himself, his heirs and assigns, that he or they would, at their own proper costs and expense, build and erect a good, sufficient and firm wharf, pier or street, of seventy feet in breadth, on the south side of the said lot of ground conveyed in said deed contiguous to the East river, which wharves, piers or streets should be built, kept and repaired by the said Rutgers, his heirs and assigns, at his and their proper cost, charges and expenses.
    It was also covenanted in said deed that the streets, wharves and piers so to be built should forever remain and be for the free and common passage of, and public streets and ways for, the said inhabitants of the city of New York and. all others going and returning through or by the same in like manner as the other public streets of the said city. The deed also contains covenants as to title and quiet possession. Prior to 1834 a wharf, pier or street was built upon the premises hereinbefore mentioned, such street being South street, and the southerly side of South street being coincident with the southerly side of the grant from the city to Rutgers. It appears, however, from the evidence in the case, that the bulk-head, at the times hereinafter mentioned, in front of the premises hereinbefore mentioned, as conveyed to Rutgers, was . more than thirteen feet in the East River beyond the line of the conveyance by the city to Rutgers, and was entirely situated upon land belonging to the city. Rutgers died in 1830, and in September, 1834, his executors leased to Stevenson & Pierce certain lots of ground situate between South and Water streets, and amongst others the lots hereinbefore mentioned, together with all and singular the easements, profits, commodities, etc., to the premises above described, belonging or in anywise appertaining, and particularly the wharf and water privileges to the extent of the rights of said executors for the term of twenty-one years, with a covenant for two renewals. Stevenson & Pierce went into possession of the property and leased and improved the same. In November, 1838, the corporation directed that a pier be built in the slip between Clinton and Montgomery streets, at the expense of the owners on the said slip, under the direction of the street commissioner. The location of said pier was fixed in front of the premises occupied by Stevenson & Pierce. As appears from the proceedings, which will be subsequently referred to, taken in December, 1840, by the common council, public notice of the said resolution was given according to law, informing all those interested in the water front, within the limits described, that if they should refuse or neglect to comply with the directions aforesaid and not contribute their relative proportions of the expenses, that they would thereby forfeit all their interest in the wharf arising therefrom agreeably to the act of the legislature in such case made and provided. Pursuant to said notice, Stevenson & Pierce addressed a note to the street commissioner, setting forth that they were lessees, having the same rights and privileges as possessed by the owners of the soil to the bulk-head between Clinton and Montgomery streets, adjoining the contemplated pier, and expressing tlieir willingness to build the said pier at their own. expense, according to the ordinance of the common council directing the same. They were the only parties who signified any intention in the matter, and, after the lapse of the period directed by law for that purpose, the street commissioner was authorized to grant permission to Stevenson & Pierce to build said pier at their own expense and for their own benefit. Thereupon Pierce, Stevenson having assigned his interest to him, built the pier in question at an expense of some $12,000. In 1840, Pierce being desirous of mortgaging the pier, and some objections apparently having arisen as to his title, applied to the common council for the confirmation of the permission given by the street commissioners to build the pier in question, which permission was duly confirmed by a resolution of the common council, subject to any and all rights which the owners of the fee might, at any time, have, if any, in and to the same. Pierce mortgaged the premises in question as his own to divers people, and in 1848 the pier was conveyed by the then owners thereof to the defendant by a full warranty deed, and the defendant has ever since remained in possession of the same. In June, 1857, the trustees, under the will of Rutgers, renewed the lease of Stevenson & Pierce to the then owner of the said lease, Algernon S. Jarvis, for a second term of twenty-one years, from the 1st of May, 1856, the description of " the property being the same as in the original lease. At the termination of the renewal lease, the plaintiffs paid the tenants in possession the value of the improvements upon the premises, and entered upon the upland. The defendant still retained the possession of the pier, and refused on demand to surrender the same to the plaintiffs. In 1882 the plaintiffs, claiming to be the owners of the pier, commenced this action to recover possession of the same. The defendant answered, setting up the title derived from Pierce, and upon the issue thus joined a trial was had and judgment rendered in favor of the defendant, and from such judgment this appeal is talien.

      A. B. Conger and Herbert B. lv/rner, for the appellants.

      F. JV. Taft, for the respondent.
   Van Brunt, P. J.:

It is claimed upon the part of the plaintiff that Butgers being the owner of the upland, and the grantee of the city of New York, of land to low-water mai'k, his devisees had the rights of riparian owners to build wharves and piers. It is assumed in this proposition that Butgers was the grantee -of the city, of land to low-water mark. We fail to find any evidence to support this assumption. He was the grantee of the city of land to the south side of South street as it was to be laid out under the covenants of the deed from the city to him. Whether the south line of South street coincided with the low-water mark or not does not appear, and there is no presumption whatever that it did.

It is also assumed that Butgers, as the owner of the upland, had some riparian rights, derived from the common law, independent of any statutory provisions regulating the procedure of the corporation of the city of New York in the improvement of its water front. In this proposition the learned counsel seems not to have taken notice of the distinction between the rights of riparian owners of land bounded by the sea or on navigable rivers, where the tide ebbs and flows, and the rights of such owners of land bounded on rivers or upon the margins of the same above tide water.

In the case of Furman v. New York(5 Sand., 16), this distinction is expressly recognized, and it is held that by the common law, the King is seized in fee of all the lands under. the navigable waters of his realm and is entitled to grant and convey them, and that he has the right of soil under all rivers within the flux and reflux of the sea, and that it follows from the nature of the property of the crown in the soil under water that riparian owners are not entitled as matters of right to the soil under water in front of their uplands. Upon the affirmance of the above case in 10 New York, 567, this principle was again enunciated and formed the basis of the decision.

The cases of Yates v. Milwaukee (10 Wall., 497), and Weber v. Harbor Commissioners (18 Wall., 64), in no way militate against the rule above stated. The question as to riparian rights discussed in Yates v. Milwaukee did not relate to navigable waters wherein the tide ebbed and flowed, and in the second case cited only the rule as applicable to the first is affirmed. It is true that by the act of April 3, 1807, certain pre-emptive rights were given to riparian owners, but that act in no way related to land situated south of the northerly side of Corlears Hook, the location of the pier in question. The act of 1807 was a grant to the corporation of the city of New York of 400 feet into the East river from the northerly side of Corlears Hook. The plaintiffs, therefore, had no rights whatever in respect to the lands below high-water mark except such as they may have derived by the grant from the corporation of the city of New York, the owners thereof. It is true that by the acts of 1798 and 1801 above referred to, the corporation were authorized to direct piers to be sunk and completed at the expense of the proprietors of lands lying opposite to the place where such piers should be directed to be sunk; and that in the event of the neglect of said proprietors to sink or make such piers according to the directions of the mayor, etc., it should be lawful for them to sink and make the same at their own expense and receive to their own use, wharfage or to grant the right of making such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they might think proper. But in the event of a disregard, upon the part of the corporation, of these privileges which were extended by the acts of the Legislature to the adjacent owners and the building of such piers by the corporation or the authorization of their being built by other parties, the adjoining owners did not become the proprietors of the piers thus built.

In the case of Whitney v. The Mayor, etc. (6 Abb. New Cas., 339, 340), where this question is discussed, the court say: “ Without pronouncing a definite opinion whether the proceedings of the corporation were so far regular as to put the respondent in the wrong and produce a forfeiture of his rights, it is enough to decide that inasmuch as the pier has been constructed, the respondent’s remedy, if any, is by an action for the specific wrong he has suffered for depriving him of the opportunity to contribute to the expense and of having an interest in the pier to the same extent.”

■ The action in that case was brought upon the theory that the pier was a legal obstruction to the use of the plaintiff’s bulk-head, and that the corporation were wrong-doers. The court say: “ I am of the opinion that if it should be conceded that the corporation failed to give the respondent the requisite notice to erect or contribute to thé expense of erecting the pier, it does not follow that that structure is a nuisance or a purpresture. The corporation was the exclusive judge of the propriety of constructing piers -and of the places where they should, be situated. This power was committed to the common council for important public purposes, having relation to the great city of which they were the local legislature. It was, however, to be exercised with a proper regard to the interests of riparian proprietors, but the structures were to bo upon the land under water, belonging to the city and not to the proprietors. It would, however, be likely to prejudice them by covering a portion of their water front, and to compensate them for this inconvenience they were allowed to have the direct profits arising from the piers if they would be at the expense of constructing them. But it cannot be maintained, because a directing portion of the statute has been disregarded, that an important public work which the city had a general right to construct is to be therefore regarded as a nuisance. If it were situated upon the respondent’s land the case would be different. * * * If the respondent has sustained an injury in being deprived of an opportunity which the statute intended to secure, him to erect it himself, and have the wharfage arising from it, he is entitled to his action for that specific grievance. This is not matter of form, for it may be, for aught that has appeared in this case, that the enterprise of constructing the pier was a very unprofitable one, looking only to the direct revenue arising from it, and that the respondent could not, with a proper regard to his own interest, have afforded to erect it. In such case his damage would be merely nominal.”

The case of Langdon v. Mayor, etc. (93 N. Y., 129) in no way militates against the view hereinbefore expressed. In construing the grant from the city the court laid particular stress upon the fact that such grant naturally and obviously imported a perpetual grant of wharfage with a perpetual right of free access to the wharf from the adjacent water, and founded this conclusion upon the fact that they were contracting in reference to what was then believed to be the permanent exterior water line of the city on the North river, which line was represented as such permanent exterior line upon the map annexed to the conveyance. The action of Langdon v. Mayor was an action for damages caused by reason of the erection of a new wharf or bulk-head in front of plaintiff’s wharf, and was In consonance with the rule laid down in such cases in the case of Whitney v. The Mayor. It would appear, therefore, that whatever rights of the plaintiff were invaded by the construction of this wharf, it not being constructed upon land belonging to the plaintiffs, an action for possession will not lie.

It is, however, urged upon the part of the plaintiff, that Stevenson & Pierce, the lessees of the plaintiff’s ancestor, acquired no rights to the pier except in that capacity, and that, therefore, the rights of their assignees terminated at the expiration of the lease, claiming that when a tenant of land acquires an interest in adjacent lands by reason of such tenancy, and for the use of the leased premises it enures to his benefit only while the tenancy continues, and on the expiration of the tenancy reverts to the landlord. To support this proposition various English cases are cited and reference is also made to the ease of Dempsey v. Kipp (61 N. Y., 462), where this rule seems to be recognized in the opinion of the court. A material distinction exists, however, between the rale claimed and the facts in the case at bar. It is necessary to the rule that the interest acquired in the adjacent lands should be for the use of the leased property. There is no evidence in this case that the pier in question was built for the use of the property leased by Stevenson & Pierce from the plaintiffs’ testator. Upon the trial it appeared affirmatively, by the evidence of Mr. Jarvis, that the pier was built for general commercial purposes, he stating that it was built for the purpose of having it for a wharf for the steamers that first began to come to the port of New York — the Sirius, the Great "Western and then the British Queen. It would, therefore, appear that the rule claimed on behalf of the plaintiffs has no application to this case. It further appears from the proceedings of ■ the common council that the permission given to Stevenson & Pierce to construct this pier was to be at their own expense and for their own benefit. It is true that the confirmatory resolution was made subject to any and all such rights, if any, which the owners of the fee may at any time have in and to the same. What this phrase may mean does not clearly appear, as the corporation was without dispute the owner of the fee. As has been already seen, whatever rights the adjacent owners of the uplands may have had it did not give them the right to the possession of the pier after its construction, blit simply to an action for damages because of the violation of tlieir rights by this construction, if such rights were violated. That it was not the intention of Stevenson & Pierce to construct this pier for the benefit of the Rutger estate seems to he apparent from the fact that they at once proceeded to exercise absolute .ownership over the same, mortgaging the same and conveying the ¡same by a warranty deed in 1848. It further appears that this pier in no way interferes or communicates with the land belonging to .the Rutger estate. The hulk-head communicating with the pier 'is from thirteen to sixteen feet south of the southerly line of ■the land -granted to Rutgers by the deed, and the bulk-head stands upon land, the title to which belongs to the city and in which the Rutger estate has no interest. Under all these circumstances it is difficult to see how the plaintiffs can succeed in establishing a right to the possession of the pier in question as claimed by them. It has not been thought necessary to consider the exceptions to the ■evidence, as the evidence, if • admitted, could not affect the legal proposition hereinbefore stated.

The judgment appealed, from must he affirmed, with costs.

Bradt and Daniels, JJ„, concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.: Brady, J.

text:
    THE CITIZENS’ NATIONAL BANK OF DAVENPORT, IOWA, Appellant, v. THE IMPORTERS AND TRADERS’ NATIONAL BANK OF NEW YORK, Respondent.

      Cheek — right of a depositor to sue a bank for refusing to pay his check wheaiie account is good — evidence—admissions of parties —proof of the reason given for a refusal to comply with a demand does not prove that the reason is true — payment by a bank of an unindorsed check, payable to order, to a holder thereof— the burden of proving that the payee has parted with his title rests upon the bank.

    While a cheek, drawn by a depositor against a bank account, does not operate as an assignment of so much of the account, it authorizes the payee, or one to whom he has indorsed and delivered it, to make a demand, and the refusal of the bank to pay on presentation gives the drawer a right'of action, in case he has funds in bank to meet the check and the refusal was without his authority.

      Viets v. The Union National Bank of IfroyiifCfl N. 663) followed.

      On divers dates, between February 23tn and May loth, 1884, the plaintiff drew ten drafts, each dated on the day when drawn, whereby it directed the defendant to pay to the order oí W. C. Wadsworth & Co. certain sums of money. W. O. Wadsworth & Co. indorsed the drafts to the order of George Wadsworth for collection, who, on November 6,1884, presented the drafts, indorsed by him in blank, to the defendant and demanded payment thereof, which was refused, whereupon the said drafts were protested and notice thereof duly given. The defendant, while admitting that it had sufficient money of the plaintiff's to pay the drafts in full, refused to do so upon the ground that it had previously paid the drafts to the Fourth National Bank, and that it had 'returned the drafts to the plaintiff, as vouchers. At the time the drafts were presented they purported to be indorsed by the payee and other persons so as to make them payable to the Fourth National Bank or its order. Upon the cross-examination of the witness, who proved the presentation of the drafts to the bank, he testified m answer to questions as to the genuineness of the indorsements of “ W. O. Wadsworth & Co.,” whereby the said paper was made payable to the Fourth National Bank, that two of such indorsements were not genuine and that the others were.

      Held, that the court erred in dismissing the complaint upon the ground that it appeared, as part of the plaintiffs’ case, that when these drafts were presented by him the reason assigned for the refusal to pay was that the defendant- had already paid these drafts, and that it was conceded that they were at that time indorsed as appeared on the drafts. (Brady, J., dissenting.)
    That, although the defendant had a right to prove by the witness testifying to the demand and refusal the reason given for the refusal, there was no principle of law which justified the assumption, without evidence, that the reason given was true.

      Bennett & Hall v. Birch (1 Den., 141) distinguished.
    That, as two of the drafts had never been indorsed by the payee until they were indorsed to George Wadsworth for collection, he was clearly entitled to demand the amount due thereby from the bank, and its refusal to comply therewith could not he justified by showing a payment to any other person.
    The defendant claimed that as the title to a check on a bank, payable to a payee « therein named or order, may be transferred by more delivery without the indorsement of the payee, the proof that the indorsements upon two or more of the drafts were not genuine did not affect its position because the Fourth National Bank, when it presented the drafts to the defendant for payment, was presumably the holder of the checks and entitled to their payment.

      Held, that this position could not be maintained, as it assumed that the drafts, were in the possession of the Fourth National Hank, and that it presented them, to the defendant for payment, and that the defendant had paid them, while no • evidence of the existence of these facts was given.
    If a bank pays a check drawn to order, without the indorsement of the payee, it is bound to prove that the payee has parted with his title before it can defend a refusal to pay upon a demand made by the payee having possession of the check.

      There is no presumption that the holder of commercial paper, payable to order, unindorsed, has any title to the same, 'whatever the presumption may be when genuine indorsements are established.
    Appeal from a judgment dismissing tlie complaint, entered upon an order made upon the trial of the action at the circuit.
    The appellant is a foreign corporation and the respondent is a domestic corporation.
    On divers dates between the 25th of February and the 10th of May, 1884,.the plaintiff drew ten certain drafts or bills of exchange, each dated as of the day when drawn, whereby it directed the respondent to pay to the order of W. C. Wadsworth & Co., certain sums of money. W. O. Wadsworth & Co. indorsed said drafts to the order of George Wadsworth for collection, and on the 6th day of November, 1884, George Wadsworth having indorsed said drafts in blank, presented them to the respondents for payment, and demanded payment thereof, which was refused, and said drafts were protested for non-payment and notice thereof duly given. When the drafts were presented the appellants had sufficient money or funds on deposit with the respondents to the credit of the appellant and subject to its draft, wherewith to pay said drafts in full. At the time of the presentation of these drafts for payment and the declinature of the respondent to pay the same, it was claimed by the respondent that it had previously paid the paper to the Fourth National Bank, and that it had returned the drafts to the plaintiff as vouchers. At the time of the presentation of the drafts as aforesaid, said drafts bore the following indorsements which were upon the drafts at the time of the indorsements heretofore stated to have been made by W. O. Wadsworth & Co. and George Wads-worth ; two of the drafts being indorsed as follows:
    “ Pay to the order of E. S. Bennett.
    “ W. C. Wadsworth & Co.
    “Pay to the order of John W. Rumsey & Co.
    “E. S. Bennett.
    “ J ohn W. Rumsey & Co.
    “ Pay Fourth National Bank, or order, account Corn Exchange ’Bank, Chicago.
    “ Orson Smith, Cashier.”

      The remainder of said drafts bore the following indorsements:
    “Pay to the order John W. Rumsey.,& .Co.
    “ W. C. Wadsworth & Co.
    “John W. Rumsey & Co.
    “ Pay Fourth National Bank, or order, account Corn Exchange Bank, Chicago.
    “ C. C. Swinbtirn, Assistant Cashier,” in some cases; in other cases:
    “E. S. Carl, Cashier.”
    TJpon cross-examination the witnesses who proved the presentation of the drafts to the bank, being asked as to the genuineness.of the indorsement “W. C. Wadsworth & Co.,” whereby said,paper was. indorsed to Bennett or Rumsey, testified that as to two of the drafts such indorsements were not genuine, and that as to the other indorsements they were genuine.
    The- plaintiff having closed its case upon the foregoing facts, a motion to dismiss the complaint was made upon the ground that it appears as part of the plaintiff’s case that when these drafts were presented by him, the reason assigned for the refusal to pay was that the defendant had already paid these drafts, and that it is conceded that they were at that time indorsed, as appears on the drafts. And also because the complaint simply stated that the depositor drew his draft upon the depository, to the order of Wadsworth, that Wadsworth indorsed it, and Wadsworth, the payee, demanded payment from the defendant; that the defendant refused to pay it 5 that it was protested, notice given to the plaintiff, and thereupon the plaintiff was obliged to pay it; and now claims damages to the amount of the check.
    This motion was granted, and from the judgment thereupon entered this appeal is taken.

      George Wadsworth, for the appellant.

      Anthony Ii. Dyett, for the respondent.
   Van Brunt, P. J.:

The right of the plaintiff as drawer of the checks in question upon the refusal to pay, if such refusal was not justifiable, to bring an action against its depository for the amount of the check seems to be supported by the case of Viets v. The Union National Bank of Troy (101 N. Y., 563) where it is held that while a check drawn by a depositor against a bank account does not operate as an assignment of so much of the account, it authorizes the payee or one to whom he has indorsed and delivered it to make a demand, and the refusal of the bank to pay on presentation, gives the drawer a right of action in case he has funds in bank to meet the check and the refusal was without his authority. It is admitted in the case at bar that at the time of the demand for the payment of these checks the defendant had sufficient funds of the plaintiff’s to pay the same, and that the refusal to pay was not by the authority of the plaintiff. The ground upon which the defendant seeks to support the ruling of the learned court below in dismissing the complaint seems to be founded upon a misapprehension of the rules of law in reference to admissions.

The rule stated by the counsel is undoubtedly well settled by authority and has been frequently applied in reference to the construction of admissions not only in conversations but also in pleadings, and it is to the effect that where one party proves an admission of the other against him the latter has a right to insist that the whole of the conversation be taken together and he may prove all that was said at the time, as well what makes in his favor as what is against him, and that the whole admission is presumably true until some part of it is impeached by evidence. This rule is established by the case of Rouse v. Whited (25 N. Y., 170) and cases there cited ; but it has no application to the case at bar. The plaintiff attempted to prove no admission of the defendant. It proved an act, namely, the refusal to pay; and, although under the authority of Bennett & Hall v. Birch (1 Denio, 141), the defendant had a right to prove by the evidence establishing the demand and refusal, the reasons given for the refusal; there is no principle of law which justifies the assumption without evidence that the reason given is true. If such a rule were to prevail, it would be a dangerous act for a holder of commercial paper to present it for payment, because if in refusing such payment the reason assigned was that the paper had already been paid, the holder, although in possession of the paper, would be required to prove that such was not the fact, thus reversing the whole order of proof. If the plaintiff had sought to prove a demand and refusal by a conversation with one of the officers of the bank, had after the refusal, in which such officer admitted that such demand had been made and such refusal had taken place, and in connection therewith had stated that they refused upon the ground that- they had already paid the drafts, then the rule in respect to admissions- would apply. But in the case at bar the act of refusal itself was proved, and by no assertion -which the party upon whom the demand has been made may make, can he change the burden of proof as to payment.

It appears that as to two of the drafts, although bearing a number of indorsements, they were never indorsed by the payee until they were indorsed to George Wadsworth for collection, who presented the same for payment, the previous indorsements of W. C. Wads-worth & Go. being proved not to be genuine. It is clear, therefore that notwithstanding all the other indorsements- upon the drafts- the -title was in George Wadsworth for the.purpose of collection, and he had a right to demand the same of the bank, and that the payment to any of the other indorsees, even if proved, would be no defense to the action, because no title in the drafts existed in any of them, so far as appears by the evidence. As to the other drafts, which bore the genuine indorsement of W. O. Wadsworth & Co. to other persons, without some proof, the presumption would be - that W. O. Wadsworth & Go. had parted with their title to those " drafts prior to the time of affixing the subsequent indorsement to George Wadsworth for collection, and no recovery could be had ’•without some explanation in respect to the other indorsements-.

"It.-is.-claimed, however, that as the title to a check on a bank,, ■payable, to:a. -payee -named or order, may be transferred by mere -delivery,v-withont the: indorsement of the payee, the proof that the indorsements upon two-of" the checks of W. C. Wadsworth & Co.,, the payee,-.were-ndt-genuine: does not affect the position of the defendant, because 'the Fourth National Bank, when it presented ¡the checks to' the - déferidaht ""for payment, was presumably the holder of the checks,1 arid 'entitled to their payment. This proposition assumes that there is proof' that these checks were in possession of the Fourth National Barik,-and that it presented the checks to the defendant for payment and that the defendant paid the same.’ But, as has been seen, no such evidence exists in the case, it not having been proved, and the statement accompanying the refusal to pay the checks not being evidence of the truth of the facts stated in the refusal. If a bank pays a check drawn to order without the indorsement of the payee, it is bound to prove that the payee has parted with title before it can defend a refusal to pay upon demand by the payee having possession of the paper. There is no presumption that the holder of commercial paper payable to order, unindorsed, has any title to the same, whatever the presumption may be, where genuine indorsements are established.

It is claimed upon the part of the respondent that the plaintiff before it could recover of the defendant was clearly bound to tender back to the defendant the cheeks with their indorsements. It is sufficient to say, in answer to this proposition, that the checks were tendered at the time of the demand and refusal, and that no such point was made upon the trial or upon the pleadings, and if any motion had been based upon those grounds the plaintiffs had the checks in court and would undoubtedly have offered to surrender them to the defendants.

It would appear, therefore, that certainty as to two of the checks in question it was error to dismiss the complaint, and for such error the judgment must be reversed and a new trial ordered, with costs to appellant, to abide event.

Daniels, J., concurred.

Brady, J.

(dissenting :

The plaintiff is a foreign corporation, as appears from its title, and the defendant was its correspondent and depository here. Several drafts or checks drawn in favor of Win. C. Wadsworth & Oo. were not paid, it was alleged, and which having reached the plaintiff, this action was commenced to enforce their payment. The defense interposed was payment, and upon this issue the trial proceeded. The drafts and their indorsement by the payees were put in evidence and proved, except three or four of the latter, which were said not to have been made by any one of the payees firm, but by whom the witness knew not. The. same person was called to show presentment and demand of the drafts after they had been returned to the plaintiff, and that payment was refused because it was claimed to have been made, and it sufficiently appeared that they had been returned to the plaintiffs by the defendant as vouchers relating to the fund on deposit. The complaint, on these facts, was dismissed.

It does not seem to be questioned that the whole conversation which took place at the time of presentation was properly received in evidence, and' it could not well be. The rule is established by a series of cases (Bearss v. Copley, 10 N. Y., 93; Perego v. Purdy, 1 Hilt., 269; Bouse v. Whited, 25 N. Y., 170, and cases cited), and payment having thus been asserted, it was deemed, therefore, to have been proved prima, facie. The appellant is understood to contend, however, that the defendant being a depository, and having confessedly money enough to pay the drafts, the right of action existed and the burden of proof of payment therefore rested upon the defendant. This would convert the action' into one for money had and received, and not for the non-payment of drafts duly issued and presented. This is regarded as an erroneous proposition. If the action had been as suggested, the proof would have been different and undoubtedly forced the defendant to show why the claim urged was not satisfied. The plaintiff would establish a demand by showing the deposit and resting, and the evidence of what took place at the presentation of the drafts would not have appeared on the plaintiff’s case. The defendant would then have been called upon to establish the proper appropriation of the fund m its possession, which had belonged to the plaintiff, and would not have been relieved by the statement mentioned. The plaintiff, by adopting a different course, exposed its rights to such defeat as the statement would accomplish, and assumed the duty of showing it to be untrue. This obligation was not discharged, and the result was prejudicial. The evidence amounted to the plea of confession and avoidance. It is said, however, that the drafts which were shown not to have been indorsed by the payees were not valid vouchers, or properly paid, and as to these the right to recover was clear; but this does not seem to be a good legal proposition. It has been declared that a check or draft on a bank payable to a person named, or ‘order, may be transferred by parol, with manual delivery and without indorsement (Freund et al. v. Imp. and Trad. Nat. Bank, 76 N. Y., 352), although the transferee acquires only the rights he would have had, had the check been nonnegotiable; that is, the right which the payee had in it at the time of the transfer. The payees on these drafts had an undisputed right to the sums named on them, for they are alleged in the complaint to have been drawn for value received. There is no evidence, except such as-might be inferred from the manner of the indorsement, that they were improperly transferred, no testimony showing that they were not, in fact, transferred by parol and manual delivery. The presumption is that they were. The witness mentioned did not regard the indorsements as made by either of the persons constituting the firm of the payees; he did not know in whose handwriting the indorsements were made. This is the extent of the evidence of the subject, and it does not touch the integrity of a parol transfer with manual delivery. They may have been indorsed by the rightful owner on authority given for that purpose, or by some authorized person, in order to give them surer currency. There was no right of action based upon the improper indorsement asserted in the complaint or developed by the evidence of the payees, that wrong had been done them; assuming the indorsement not to have been made, the fact is immaterial. In addition to this, it may be said that the plaintiff substantially asserted the validity of the transfers made by asking for the payment of the drafts and predicating its action upon their soundness as choses in action.

For these reasons, it becomes our duty to affirm the judgment.

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