text:
    Sidney E. Maders, Rec’r, Resp’t, v. William I. Whallon et al., Appl’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Judgment—Cannot be given fob a cause of action not presented AND LITIGATED.
    Plaintiff, as receiver in supplementary proceedings, brought action to set aside a conveyance made by the judgment debtor, and filed a lis pendens as in such an action. Subsequently, and after submission of the case, he filed another Us pendens for foreclosure of a mortgage, and the' judgment rendered was for the foreclosure of a mortgage given by the grantee on the conveyance complained of. Held, error; that judgment cannot be given upon and for a cause of action not presented and not litigated, and as to which no claim was made nor issue joined.

      Appeal from judgment of special term directing a foreclosure and sale of real estate.

      F. A. Rowe, for resp’t; Byron Pond (E. T. Brackett, of counsel), for appl’ts.
   Herrick, J.

The issue made by the pleadings was whether a conveyance executed by the defendant, William I. Whallon and bis wife, to the defendant McAuliff, of certain real estate, was-fraudulent as to the plaintiff, as receiver of the defendant William I. Whallon, appointed in supplementary proceedings against, the said Whallon.

The judgment rendered was for the foreclosure of a mortgage given by the defendant McAuliff to the defendant Whallon at the time of the conveyance of said real estate for the purchase price thereof.

The complaint was not amended upon the trial. A lis pendens was filed of an action to set aside a conveyance as fraudulent. Subsequently, and after the case had been submitted to the court,, another hs pendens for the foreclosure of a mortgage upon the same property was filed.

It must be obvious that an action for the foreclosure of a mortgage, and one to set aside a conveyance as fraudulent, are very wide apart, are dissimilar in every respect, and that upon a trial a complaint for the one cause of action could not be so amended, as to set up the other as the cause of action to be tried.

While it is true that tbe execution of the bond and mortgage herein was alleged in the complaint, it was merely as a recital of the facts which the plaintiff claimed showed the conveyance to be without consideration and void, the bond and mortgage being, for the entire purchase price.

If under such circumstances judgment can be obtained and sustained, then pleadings serve no useful purpose; they inform neither the court nor the parties of the issues to be relied upon; instead of informing they mislead the adverse party. Defendants have a right to be informed of the claim made against them; to be informed of the issue to be tried. And after trial and submission to the court upon the issue presented judgment cannot be given upon and for a cause of action not presented and not litigated and as to which no claim was made nor issue joined. Walter v. Bennett, 16 N. Y., 250; Wright v. Delafield, 25 id., 266; Southwick v. First N. Bk. of Memphis, 84 id., 420; Truesdell v. Sarles, 104 id., 164; 5 St. Rep., 565; Day v. Town of New Lots, 107 id., 148; 11 St. Rep., 361; Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864; Terry v. Hunger, 121 N. Y., 161-171; 30 St. Rep., 746.

Here the action was in fact tried as one to set aside a conveyance as fraudulent, and that was decided against the plaintiff, and then, two months or more after the submission of the case to the trial court, the issue was changed or attempted to be changed by filing a lis pendens for the foreclosure, of a mortgage.

The case of Durand v. Hankerson, 39 N. Y., 287, an extreme case, does not seem to me to be controlling. The complaint in that case was in part a bill of discovery, alleging that the defendant had property, equitable interests, debts and securities, etc., which the plaintiff could not reach by execution, and which ought to be applied in satisfaction of the plaintiff’s judgment. Under that clause in the complaint evidence was given on the! trial that the defendant had a bond and mortgage, and the judgment directed the payment of the amount due thereon to the receiver. The complaint in the case at bar is not in any sense a bill of discovery; it seeks but one thing, presents a single issue; it has no general allegation of property in the defendant’s possession which should be applied to discharge his debts.

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

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People ex rel. Michael Lane, Resp’t, v. Benjamin Case et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Highways—Commissioners—Teem of office.
    In 1885 relator was elected highway commissioner to succeed himself» his ballots containing the words “two years.” The following year the town voted to have but one commissioner, and in 1887 another person was elected commissioner. Notwithstanding this relator continued to act. Feld, that relator continued to be commissioner after the town meeting in 1887; that the statute fixes the term of office at three years, and neither the occupant, election officers or the electors can shorten or lengthen such term, and that the words on the ballots could be given no effect.
    3. Same—Judgment against.
    The mere fact that there is- a Judgment against the highway commissioner, or that one against him has been paid by him, does not render it the absolute duty of the town to pay him the amount.
    3. Same—Mandamus.
    A mandamus should not be issued against a town board .u compel them to audit and allow relator’s claims, where the absolute liability of the town for such claims is not established.
    Appeal from judgment awarding a peremptory mandamus.

      T. F. Bush, for app’lts; James L. Seewart, for resp’t.
   Herrick, J.

This is an appeal from a judgment awarding a peremptory mandamus against the defendants as the board of town auditors of the town of Forestburgh, directing them to audit and allow the sum of eighty-nine dollars for services rendered and disbursements made by the relator as a commissioner of highways, and also the sum of $107.20, being the amount of a judgment rendered against the relator in favor of one James L. Stewart for professional services as a lawyer, alleged to have been rendered by the said Stewart in and about the official business of the relator as commissioner of highways of the town of Forest-burgh.

At the spring election in 1885 one commissioner of highways was to be elected for the town of Forestburgh ; the term of office was three years. At such election the relator and Benjamin Case were opposing candidates, and the only persons voted for at such election for said office.

The ballots cast for said candidates were printed as follows:

For Commissioner of Highways (2 years),
Michael Lane.
For Commissioner of Highways (3 years),
Benjamin Case.

A majority of the votes cast at such election were cast for the relator, and the canvassers declared that he had been elected commissioner of highways for said town.

At the annual town meeting held in said town in March, 1886, a resolution was passed by the electors, pursuant to chapter 180 of the Laws of 1845, providing that the said town should have but one highway commissioner; at that time the relator was the only acting highway commissioner in said town.

At the annual town meeting held in said town in March, 1887, two candidates were voted for for the office of commissioner of highways; the relator and one Alex. Moore. Moore received a majority of the votes cast and was declared elected by the board of town canvassers and a certificate of his election was filed in the town clerk’s office, and he executed and filed the bond required by law and entered upon the discharge of his duties as commissioner of highways for said town; the relator also continued to act as commissioner of highways for the year following the said last election.

At the annual meeting of the board of town auditors of said town held in November, 188d, the relator presented a claim for audit and allowance to said board for his services and expenditures made by him from and after the town meeting held in March, 1887, and also a claim for money paid in'satisfaction of a judgment recovered against him by James L. Stewart, for counsel and professional services as a lawyer, rendered from and after the town meeting held in March, 1887. The claim for money paid in satisfaction of the judgment was not accompanied by the judgment roll nor the complaint, nor by any statement showing the necessity or propriety of the service rendered ; neither does it appear whether such judgment was recovered upon confession, or after a trial upon the merits. The board of town auditors decided that the relator was not a commissioner of highways of said town during the time in which said claims were alleged to have accrued, and on that ground refused to audit said claims. In determining that the relator was not a commissioner of highways after the town meeting of March, 1887,1 think the board of town auditors erred. He was elected in March, 1883, and the board seem to have thought that because the ticket on which his name was printed had the words “ for two years,’’ that thereby his term of office was limited to two years and expired in March, 1887, and that his place was filled at the election held at that time. It appears in the case that the vacancy to be filled at the .town meeting in March, 1887, was a full term, one caused by expiration of a full term of office, not one caused by death or resignation. The term of office of commissioner of highways is fixed by statute at three years, and neither the occupant of the office, except by death or resignation, the election officers or the electora can shorten or lengthen such term of office.

The statute fixes the term of office, not the electors. Whether the words on the ballot were placed there by design or mistake, no effect can be given to them; to do so would permit the act of the legislature fixing the term of office in any case to be nullified.

While the board of town auditors erred in the respect indicated, still I do not think a peremptory mandamus should issue against the defendants compelling them to audit and allow the claims in question.

The relator has not established, so far as appears from the record before us, the absolute liability of the town for the whole or part of any one of the claims presented to the board.

As to the judgment against him for legal services, it does not appear what those legal services consisted of, whether they were properly or necessarily rendered for him in the discharge of his duties as a commissioner of highways or not. The mere fact that there is a judgment against him, or that one against him has been paid by him, does not render it the absolute duty of the town to pay him the amount of it

So far as appears from the case before us, the defendants have not passed upon anything except the question as to whether the relator was a commissioner of highways during the time of the rendition of the services claimed for. The board of town auditors has the right, and it is their duty, to examine into the propriety and necessity of the employment of counsel in the discharge of his duties by the relator as commissioner of highways.

To issue a peremptory mandamus under the circumstances before us in this case would be to compel the audit of the relator’s claims without any examination as to whether the expenses and disbursements claimed for were in fact made and incurred by the relator in the due and proper discharge of his duties- as commissioner of highways, and also without any inquiry or examination as to whether the legal services for which judgment was obtained against him were properly and necessarily rendered for him in his official capacity. And there is nothing before us, as 1 have before stated, to determine the absolute liability of the town for any or either of the claims, or any part of them.

The relator should pursue his remedy by certiorari. People ex rel. Myers v. Barnes, 114 N. Y., 317; 22 St. Rep., 164.

The order and judgment directing the issuance of a peremptory mandamus should be reversed, with fifty dollars costs and printing disbursements.

Mayham, P. J., and Putnam, J., concur.


text:
    George M. Beebe, App’lt, v. The Board of Supervisors of Sullivan County et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Supervisors — Contract with one of their number — Taxpayer’s action.
    The board of supervisors employed one of their number, who was an attorney, to take proceedings to recover money not accounted for by the county treasurer. After commencing several actions, he was relieved from acting further, and his bill was audited. In an action by a taxpayer to restrain payment, Held, that the contract made by the board for such services by one of their number was illegal, although the member so employed did not vote on the question of such employment, nor on the audit of his bill, and that the complaint was improperly dismissed.
    Appeal from judgment dismissing the complaint. '

      John A. Thompson, for app’lt; Lewis E. Carr, for resp’ts.
   Herrick, J.

In the year 1888 the board of supervisors of Sullivan county, desiring to take proceedings to recover money not accounted for by the county treasurer, employed one John F. Anderson, an attorney and counsellor at law, to act for them.

Pursuant to such employment said Anderson commenced four actions m the supreme court against the county treasurer and the sureties upon his official bonds, to recover the moneys for which he had not accounted.

In December, 1890, Anderson asked to be relieved from acting any further as the attorney of the board of supervisors in three of the actions he had commenced; his request was acceded to. After being relieved from acting further as their attorney in said three actions Anderson presented a bill to the board of supervisors for his services in said actions amounting to the sum of $1,107. The board audited and allowed said bill at its full amount, and proposed and still proposes to pay the same from the funds of the county. At the time of his employment the said John F. Anderson was and continued to be a supervisor of Sullivan county during the rendition of his legal services down to and including the time of the presentation and auditing of his bill, but took no part in the proceedings to employ him as an attorney or in the auditing and allowing of his account. The plaintiff was in the year 1890 a resident of the town of Thompson, Sullivan county, and was assessed upon the assessment rolls of the town for that year for an amount exceeding $1,000, and liable to be taxed thereon for his proportionate share of the taxes levied in said year for county charges.

The plaintiff as such taxpayer commenced an action against the defendants to restrain the payment of the amount of said audit to the defendant John F. Anderson.

Upon the trial the plaintiff’s complaint was dismissed. This we think was error; a taxpayer has a right to maintain an action to prevent the payment of a claim which the auditing officers, have no right to allow. Osterhoudt v. Rigney et al., 98 N. Y., 222-30-31.

At the time of his employment the defendant Anderson was a member of the board of supervisors ; they were the agents of the county of Sullivan, and as such had no right to enter into contracts for their own benefit with their principal, the county of Sullivan. They are trustees and have no right to enter into contracts with each other at the expense of those for whom they are acting, and whose interests they are bound to guard and protect. Jewett v. Miller, 10 N. Y., 402; N. Y. C. Ins. Co. v. N. P. Ins. Co., 14 id., 85; Conkey v. Bond, 36 id., 427; Murray v. Beard, 102 id., 505; 2 St. Rep., 466.

The illegality of such contracts does not depend upon statutory enactments ; they are illegal at common law.

It is contrary to good morals and public policy to permit municipal officers of any kind to enter into contractual relations with the municipality of which they are officers. And this principle applies with particular force to members of a board like a board of supervisors, which not only makes the contract but subsequently audits the bill.

But it is said that in the case before us the supervisor who was employed did not vote on the question of his own employment or upon the audit of his bill; that does not cure the evil; the influence upon fellow members is the same; his constituents are entitled to his judgment in making contracts, to his scrutiny in passing upon accounts, and to his unbiassed and disinterested efforts in both; and he cannot make the violation or neglect of the duties he owes to his constituents the means of validating an otherwise illegal act; he cannot put on and off the garb of a public official, and discharge or refuse to discharge the duties of his trust, at will and as best subserves his private interests.

He is a part of the board of supervisors, its act is his act, and he cannot, as a supervisor, make a contract with himself as a private citizen.

The principle of the case was decided in the case of Smith v. City of Albany, 61 N. Y., 444, and recognized in § 473 of the Penal Code, which makes the entering into such contracts by public officers a criminal offense. That section is not in derogation of any common law right, and should be strictly construed to prevent the evil it was aimed at.

That law was in force at the time the contract of employment between the defendants was entered into, and an act prohibited by law, whose commission is punishable by fine and imprisonment, cannot be the basis of a legal charge against the county. See Bell v. Quin, 2 Sandf., 146.

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

Putnam, J., concurs; Mayham, P. J., concurs in result.


author: Putnam, J.

text:
    The People, Resp’ts, v. James Kehoe, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Larceny—Indictment.
    Under a count in an indictment for taking three one-gallon crocks of preserves a defendant cannot he convicted of stealing a three gallon crock of preserves.

      2. Same—Value oe property stolen.
    The indictment charged defendant with stealing articles to the value of $28.50. The chickens alleged to have been taken, valued at three dollars were not found in defendant’s possession; a carpet was not shown to be worth its alleged value and defendant'was shown to have taken a three gallon crock of preserves instead of three one-gallon crocks. Held, that a conviction of grand larceny could not be sustained; that he should have been convicted of petit larceny only.
    Appeal from judgment of conviction of the crime of grand larceny in the second degree.

      H. V. Borst (Z. S. Westbrook, of counsel), for app’lt; Charles S. Nisbet, for resp’ts.
   Putnam, J.

This is an appeal by the defendant from a judgment of conviction of the .court of sessions of Montgomery county rendered February 22, 1892, convicting him of the crime of grand larceny in the second degree, under which he was sentenced to state prison for two years.

The evidence in the case amply sustains the verdict of the jury convicting the defendant of larceny. He was found in possession of the stolen property under such suspicious circumstances that the jury could properly under § 528 of the Penal Code deem him guilty of the crime charged.

But I think the testimony given on the trial failed to satisfactorily show that the property stolen was of the value of twenty-five dollars.

The property claimed to have been taken by Mrs. Mullarkey and her estimate of the value of the same is as follows :

Carpet........................................... $15 00
3 gallons crock pears.............................. 2 00
3 gallons crock cherries............................ 2 00
Quart of quinces.................................. 50
6 chickens.....■................................... 3 00
Bed quilt........................................ 2 00
Bed rug.......................................... 2 00
3 gallons crock raspberries......................?... 2 00
In all the value of........................... $28 50

The only evidence showing the larceny was the finding of the property in the possession of the defendant. Deducting the value of the chickens, which were not found in his possession, three dollars, leaves the estimated value of the property taken $25.50. The only witness as to value was Mrs. Mullarkey. To bring the property taken by defendant up to twenty-five dollars the carpet must be estimated at fifteen dollars. But the witness testified, not that the carpet is worth fifteen dollars, but about fifteen dollars; and on her cross-examination she swore that the carpet probably might not be worth over forty cents a yard in the market, which would make it worth $10.80, instead of fifteen dollars.

Again the indictment charges the prisoner with taking three one-gallon crocks of preserved pears and three one-gallon crocks of preserved cherries. The defendant could not properly be convicted under this indictment of stealing a three gallon crock of pears and a three gallon crock of cherries; hence, four dollars, the estimated value of said crocks, should be deducted from the said sum of $25.50, the estimated value of the property found in defendant’s possession.

On the whole I think the evidence fails to show that the property stolen by defendant was of the value of twenty-five dollars.

Hence he should have been -convicted of petit and not grand larceny.

The judgment of conviction should be reversed and a new trial granted.

Mayham, P. J., and Herrick, J., concur.


text:
    Alfred Schimpf, Resp’t, v. Alonzo Sliter, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Negligence—Collision—Bicycles.
    Plaintiff, while riding a bicycle on the right side of a road, was run into by defendant, who was driving a buggy on the same side. Held, that plaintiff was not guilty of negligence in assuming until the last moment that defendant would turn out, nor in not running the risk of turning to the left when to do so would have subjected him to risk of collision if defendant should turn the same way.
    2. Same—Damages—Evidence.
    In an action for negligence it is error to admit evidence of the sums paid- by plaintiff to his physician and for repairs, in the absence of proof of the value of such items.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Action for damages alleged to have resulted from the negligence of the defendant. The defense was contributory negligence.

      Galen R. Hitt, for app’lt; Eaton & Kirchwey (Harold L. Hooker, of counsel), for resp’t.
   Putnam, J.

The referee found that on the 2nd day of May, 1888, plaintiff, riding on his bicycle on the drive-way in Washington Park in the city of Albany, and going at the rate of three miles an hour, met defendant driving a buggy, going at a rate exceeding six miles an hour in the opposite direction. Plaintiff was on the right side of said road near to its western margin when defendant came up on the same side and ran into him, causing the injury for which this action was brought.

The referee found that the defendant was negligent and plaintiff free from contributory negligence. There was no serious controversy in the case as to plaintiff being on the proper side o‘f the road and defendant being on the wrong side, and hence, as to the negligence of the latter. But it is insisted that the plaintiff, going at the rate of three miles per hour on his bicycle and seeing that defendant was about to run into him, could easily have turned to the left and avoided the collision, but on the contrary he voluntarily ran his bicycle into defendant’s wagon and thus caused the injury.

The rule in this class of cases is well settled that the plaintiff must show that the injury was not caused by his own negligence. If a want of care on his own part contributed to produce the injury, although the plaintiff was on the right side of the road and the defendant on the wrong side, plaintiff cannot recover. Kennard v. Burton, 12 Shepley, 47-9; Lane v. Crombie, 12 Pick., 177; Parker v. Adams, 12 Metc., 419-20; Hartfield v. Roper, 21 Wend., 615.

Therefore, although plaintiff was on his own side of the road, he must also show that he endeavored to avoid a collision with defendant’s vehicle.

The question then arises whether the evidence justified the finding of the referee that plaintiff was. not guilty of contributory negligence. I have given that evidence a careful examination and am of opinion that it does.

The plaintiff was going on his own side of the street when he met the defendant driving somewhat rapidly. Schimpf could not be expected to know or believe that Sliter, when he reached him, would not turn out The latter would only be compelled to turn out for a bicycle a short distance, a foot or two, and could do so in a moment. Therefore, plaintiff was justified in supposing that defendant would obey the law and turn out, until the last moment. Hence, no negligence could be imputed to plaintiff in not himself going to the left until the defendant was right upon him, because, until that time, he could have no reason to believe that the latter would not give way to him. Then, if Schimpf turned to the left, he ran the risk of Sliter’s turning at the same time and causing a collision.

Had plaintiff, when the horse and bicycle were near each other, turned to the left, and the defendant at the same time turned to the right, and a collision occurred, the former would have been legally liable for all damage. I think the referee could properly find, under the circumstances, that plaintiff acted with good judgment, and not negligently. He could not know defendant’s intent, or what the latter would do. If the plaintiff wolated the law by turning to the left, he was liable to cause damage to defendant’s vehicle, for which he would have been legally responsible. He was not bound to put himself in that position. I think, therefore, from the facts appearing in the case the referee could find that Schimpf was not negligent in assuming, until the last moment, that Sliter would give way to him, and at the last moment it was not negligence on his part to not run the risk of turning to the left, when to do so would have subjected him to risk of collison if Sliter should turn the same way.

But even if plaintiff did not act with good judgment in the matter, the finding of the referee can be sustained. It is well settled that when a party by negligence of another is placed in a position of danger and is compelled to act suddenly, that the law does not demand that accuracy of judgment which would be called for under other circumstances, and in such a case, even if he makes a mistake, he will not be deemed negligent. See Dyer V. Erie R. Co., 71 N. Y., 228; Bucher v. N. Y. C. & H. R. R. R. Co., 98 id., 132-8; Salter v. U. & B. R. R. R. Co., 88 id., 49; Twomley v. C. P., N. & E. R. R. Co., 69 id., 158.

Hence, if plaintiff found at the last moment that defendant did not turn to his right, and he did make a mistake in not turning to his (plaintiff’s) left, yet being called on to act suddenly, his mistake, under the circumstances, was not negligent.

Chaplin v. Hawes, 3 Carr. & Payne, 554, illustrates this view of the case. That was an action for an injury to a horse plaintiff’s servant was riding by defendant’s cart. Defendant’s cart was on plaintiff’s side (the wrong side) of the road. The plaintiff’s servant was riding through the gate when the injury happened. He testified that when three or four yards from the gate he saw the cart coming, and could have pulled up, but did not, thinking that the driver would wait, as it was a gate through which the cart had no right to pass. The defendant claimed that if plaintiff’s man pertinaciously insisted on his right of going through the gate when he might have avoided the injury either by waiting or turning aside, the plaintiff could not recover. The court held that if plaintiff’s servant had such clear space that he might easily have got away, he would have been so much to blame as to prevent the plaintiff from recovering. But on the sudden a man may not be sufficiently self-possessed to know what way to decide, and in such a case the wrongdoer is the party answerable for the mischief, though it might have been prevented by the other party’s acting differently. This case, however, is much more favorable for the plaintiff than that of Chaplin v. Hawes. There plaintiff’s servant could have turned away with safety. Here, Schimpf, when he was near enough to Sliter to make it apparent that the latter would not give way, could not have turned to the left without the greater risk of a collision for which Schimpf would be legally responsible.

Hence the finding of the referee that no negligence appeared on the part of the plaintiff was correct.

I think, however, without discussing the matter at length, that under the ruling of the court of appeals in Gumb v. Twenty-third Street Railway Co., 114 N. Y., 411; 23 St. Rep., 748, the referee erred in allowing proof of sums paid by plaintiff to his physician, for medicine, for repairing his bicycle, etc. In the case above cited the court held it error for the plaintiff to testify as to what he had paid for repairing his wagon and the amount of his physician’s bill without showing the value of such items. For this error of the referee a new trial will be necessary unless the plaintiff stipulates to deduct the amount of the items so proved, which is $59.15.

The judgment should be reversed, and a new trial granted, costs to abide the eveñt, unless the plaintiff stipulates to deduct from the damages recovered in the action $59.15. If he so stipulate, the judgment should be affirmed, without costs to either party.

- Mayham, P. J., concurs; Herrick, J., not voting.


text:
    The People ex rel. The American Surety Co. of New York, App’lt, v. Frank Campbell, Comptroller, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Taxes—Corporations—Revisal by comptroller—Certiorari.
    The time within which a certioran'i to review the decision of the comptroller upon an application to revise and readjust a tax may be granted, cannot be extended by a second application to him or one to set aside his former decision.
    2. Same.
    After the comptroller has rendered his decision on such an application, the power conferred by § 19 of chap. 542, Laws 1880, is spent, and his decision should have the force of a judgment. But if he have power to open the case and consider it on its merits anew, he is not bound to do so, and certiorari will not lie to review his determination in that regard.
    Certiorari to review decision of the comptroller of the state, declining to revise and resettle an account stated against relator for taxes on its capital stock for the year ending November 1, 1890.

      John J. Crawford, for app’lt; Simon W. Rosendale, attorney general, for resp’t.
   Putnam, J.

I think the writ of certiorari herein was improvidently granted.

The relator seeks to review the decision of the comptroller settling the tax on its capital for the year ending November 1, 1890, under chap. 542 of the Laws of 1880, as amended. These taxes were settled and stated by the comptroller on the 6th day of April, 1891, at $1,500. The relator thereafter made an application to the comptroller under § 19 of the act of 1880, as amended in 1889, to review and correct said assessment. Said application was made on affidavits and was entertained and considered by the comptroller and on June 9, 1891, he rendered his decision .denying said application.

Under § 20 of the act of 1880, as amended by chap. 463 of the Laws of 1889, the decision of the comptroller can be reviewed by the supreme court upon certiorari, on the law and facts. By § 17 of the Laws of 1880, added by chap. 501 of the Laws of 1885, no such writ of certiorari shall be granted. except application therefor shall be made within thirty days after service upon such corporation of a notice of such decision. Nor shall such writ be granted unless the papers upon which the motion therefor was made, including notice of motion, shall have been served upon the comptroller at least eight days before such notice. Nor unless the corporation making such motion shall have filed with the comptroller an undertaking, etc.

Without considering the fact that no notice of motion or copy of the affidavits, or undertaking required by § 17, supra, has ever been served on the comptroller, in my judgment the application for a writ of certiorari was not made in time.

The contention of the relator is, although the comptroller had already heard and passed upon the application to revise and- correct the taxes imposed April 6, 1891, and rendered his decision on such application June 9, 1891, and although the time to review said decision by certiorari under § 17 had passed by, yet under said § 19 a new application may be made to the comptroller to revise the decision of June 9, 1891, and from his order declining to revise certiorari lies, under which the former ruling of the comptroller may be reviewed.

In other words, that under § 19 the comptroller may repeatedly revise and readjust taxes. It would follow, that after the decision of the present motion the relator might make a new application to the comptroller for a review, and from his decision declining to review certiorari would lie, under which could be reviewed all former orders.

I do not think that such construction can properly be given to § 19. It was intended by that section to give to the comptroller the power to revise and readjust a tax by him previously imposed. But when any tax or .account has been so revised and readjusted, and the comptroller has rendered his decision thereon, the power conferred by the said section is spent. The decision rendered by the comptroller on the application to revise and readjust a tax, I think, should have the force of a judgment rendered by a court. See Osterhoudt v. Rigney, 98 N. Y., 236; People ex rel. Myers v. Barnes, 114 id., 326; 22 St. Rep., 164.

It is proper that parties should at some time after the imposition of the license tax have an opportunity to be heard by the comptroller, but after such a hearing and a decision on the merits the judgment rendered by the comptroller should not be again opened.

But if the comptroller, under § 19, supra, could, on February 3, 1892, properly entertain the application of relator and set aside his former decision made on June 9, 1891, and reopen the matter for consideration, it does not appear that he ever exercised that power. He simply “ declined to malee any revision or any readjustmentHe did not set aside the decree of June 9, 1891. That judgment stands. The relator moved, under § 19, sufra, to open the decree and open the judgment hereinbefore rendered by the comptroller on the merits of the case. The comptroller heard the motion and denied it, leaving the former judgment in full force. If the comptroller could have reopened the case, once decided by him, he was not bound to do so. It cannot be held that he is compelled to hear and review on the merits on substantially the same state of facts a motion to revise the taxes which he had once heard and passed upon. I think, therefore, that even if the comptroller had the power, under § 19, supra, to entertain and consider on its merits a second application to revise the tax which he had already passed upon, that he was not bound to do so, and that the writ will not lie to review his determination in this regard. No mistakes or errors or sufficient grounds, were stated to open the judgment.

It was an application on the merits made upon substantially the same facts as presented on the application that had be.en already heard and passed upon. The comptroller properly declined to set aside his former decision. If his determination can be reviewed and on such review the proprietyof the decision of June 9, 1891, can be considered by this court, the provisions of § 17, supra, requiring certiorari to be applied for within thirty days, would have no force whatever.

We are, therefore, prevented from considering this case upon its merits.. If we were permitted to do so the question involved is an interesting one. I think the case differs from that of People exrel. Edison Electric Light Co. v. Wemple, considered at the last term. 44 St. Rep., 702. In that case we determined that a corporation located in this state, whose capital is invested in patent rights extending over this and other countries, being engaged in the sale of such rights, although on such sale it received instead of money the stock of local corporations outside of the state of New York, nevertheless employed its capital within this state.

But in this case the relator, a casualty insurance company, doing business in other states, has deposited in Pennsylvania, in Canada and Illinois a certain.portion of its capital in connection with its business in those places. The only way that the capital of relator is used is as security to those doing business with it, and its claim is that that part of its capital which it places outside of the state for the purpose of enabling it to do business in such places is in fact capital used outside of the state and cannot be deemed used within the state. The position is plausible. On the other hand it is suggested that the property placed by the relator in Pennsylvania, Illinois and Canada, although a part of its capital, in fact is merely deposited in those places and is not in any just sense employed outside of the state. But for the reason above suggested this question is not properly before us, the relator having neglected to make application to review the action of the comptroller within thirty days from the date of his decision.

The writ of certiorari should be quashed and the proceedings of the comptroller affirmed, with costs.

Mayham, P. J., and Herrick, J., concur. ,


text:
    Eli Van Brocklen, App’lt, v. George B. Smeallie, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Vendor and purchaser—Breach oe contract—Damages.
    Defendant having refused to perform a contract for the purchase of real estate, plaintiff notified him that the best price he could obtain for it was an amount less than the contract price, and that if he did not perform he should sell for the best price he could get and hold him for the balance. He then sold at private sale, and sued for the difference. It appeared that the property was worth the contract price at the time of the breach. Held, that the court properly held that the proper rule of damages was the difference between the contract price and the actual value.
    Appeal from judgment in favor of plaintiff for six cents-damages and from order denying motion for a new trial.

      C. S. Nisbet, for app’lt; L. A. Serviss, for resp’t.
   Putnam, J.

There is but a single question involved in this case. The appellant, or vendor, brings the action against the defendant* or vendee, for damages for breach of contract to purchase land. The contract price was $10,000. The plaintiff testified on the trial that the property was worth that sum when the contract was made and at the time of the breach of the contract. There was no conflicting evidence in this regard. After notice plaintiff sold the property at private sale for $7,500, and claims to recover the difference between the contract price and the amount for which he sold the property of defendant. When the trial was concluded the plaintiff claimed to recover as above stated, but the court held that the rule of damages was the difference between the contract price and the actual value of the property ; the notice given by plaintiff to defendant did not bind the defendant so that the plaintiff could recover the difference between the contract price and the amount for which he sold the premises, and the court directed judgment in favor of the plaintiff for nominal damages. The plaintiff did not aslc to go to the jury on the question of value, or claim that the amount received on the resale was evidence of value to be submitted to the jury.

I think the rule of damages adopted by the court was correct. Wilson v. Holden, 16 Abb. Prac., 133; Congregation Beth Elohim v. Cent. Presbyterian Church, 10 Abb., N. S., 494; Timby v. Kinsey, 18 Hun, 255; Pumpelly v. Phelps, 40 N. Y., 66; Griswold v. Sabin, 51 N. H., 171.

The cases cited by appellant decided by courts of this state are not similar.

Pollen v. Le Roy, 30 N. Y., 549, was a case of the sale of personal property, but in that case the rule of damages was stated to be the difference between the contract price and the real value of the property. It was held that a fair public sale, in the absence of other evidence, was competent evidence of value. But in this case, as we have seen, the plaintiff did not claim that the price for which he sold the property was evidence of its value, or ask to go to the jury on that question.

The case of Miller v. Collyer, 36 Barb., 250, was that of a judicial sale under a decree in equity, and the court held that the purchaser could by order of the court be compelled to complete the sale, or that the court could upon his failure order a resale, and compel him to pay the deficiency, he having by signing the memoranda of sale submitted himself to the jurisdiction of the courts.

I doubt whether the doctrine stated in Bowser v. Cessna, 62 Penn., 148, is in all regards sustained by the decisions of the courts of this state. But in that case the rule of damages is stated to be the difference between the contract price and the market value of the property at the time of the breach. That case assumes that the price brought on the re-sale is evidence of the market value, but it holds that the sale must be a public one.; not, as in this case, private. In Griswold v. Sabin, 51 N. H., 171, also cited by' appellant, the court remarks: “ The plaintiff having sold the land at private sale, he cannot claim that the price obtained was the true value.” There was no evidence except that offered by defendant as to the re-sale, and as above stated plaintiff did not ask to have that question submitted to the jury.

The judgment should be affirmed, with costs.

Mayhah, P. J., and Herrick, J., concur.


text:
    Annie E. Crawford, Adm’rx, Resp’t, v. Antoinette L. Brokaw, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Trial—Verdict—Alteration by court.
    In an action upon a note the defense was a partial payment, and a counterclaim of a note given by plaintiff’s intestate to defendant. Plaintiff s reply denied the making of the payment and the genuineness of the note. The jury returned a verdict for plaintiff for the full amount claimed. On motion the court determined that the verdict was against the weight of evidence, and awarded a new trial unless plaintiff should stipulate to allow the payment and serve reply setting up failure of consideration for the note counterclaimed upon, in which case the verdict should stand except as to amount of such payment. Held, error; that the court could not properly make such an order changing the issue on which the jury passed and allow the verdict to stand as the determination of the jury on an issue not tried before them.
    Appeal from judgment in favor of plaintiff entered upon verdict, and from order made upon motion for a new trial.

      Foley & Wing (John Foley, of counsel), for resp’t; C. S. Lester, for app’lt.
   Putnam, J.

This action was brought on a note dated September 28, 1885, made by defendant to plaintiff’s intestate. The defendant did not dispute the genuineness of the note, but alleged' in her answer a payment thereon of $350, and as a counterclaim set up a note made by the intestate to her dated October 19,1885, for $775. The plaintiff served a reply denying the genuineness of the said note and said alleged payment.

The jury found in favor of the plaintiff "for the full amount of her note, disallowing the alleged payment and the note set up by defendant as a counterclaim.

The trial judge entertained and considered carefully a motion made by defendant for a new trial, and determined that the verdict of the jury was against the wejght of evidence as to the genuineness of the note on which the defendant claimed and of the receipt for the $350 payment produced by her upon the trial, and awarded defendant a new trial unless the plaintiff should stipulate to allow said payment, and also should serve an amended reply setting up a failure of consideration of the said note.

. The judge held under the issues as formed by the pleadings the verdict was not sustained by the evidence, and the defendant was entitled to a new trial. B ut that the evidence in the case indicated that there was a failure of consideration of the note set up as a counterclaim, and no such defense being alleged in the reply, he allowed the plaintiff to serve an amended reply asserting, as to such note, the defense of want of consideration.

The plaintiff thereafter served a stipulation allowing the payment set up in the answer and also an amended reply, and. in pursuance of the order of the judge entered judgment for the sum of $808, being the amount demanded in the complaint, less the payment as claimed by defendant.

The question is not before us as to whether the trial judge, in holding that the verdict of the jury against the genuineness of the receipt and note produced by defendant upon the trial was against the weight of evidence, reached a correct conclusion or otherwise. The defendant moved for a new trial, which the court granted unless the plaintiff would make a deduction from the amount of the verdict and serve an amended reply. The plaintiff acquiesced in the determination of the trial judge, and has not appealed from his decision, but has taken the benefit of his order. The only question before us, therefore, is whether the court below was authorized to allow an amended reply to be served by the plaintiff and the verdict to stand on such reply being interposed.

On the issues formed by the pleadings existing at the time of the trial, the judge set aside a verdict of the jury. But he allowed a new issue to be made by an amended reply and the verdict to stand as reduced by plaintiff’s stipulation as a verdict on that issue.

The objection to the order so made is that the jury in fact never passed upon the issue formed by the amended reply. No such case has ever been tried. On the issue so formed the defendant might wish, and be able, to offer other evidence. The jury heard and passed upon a different case. The court below set aside the verdict upon the case as tried before the jury, and substituted a new issue, and allowed the modified verdict to stand as the finding of the jury on that issue. But the jury in fact did not render the verdict on the changed issue as allowed to stand. Upon the issues as formed by the amended reply, properly, there is no verdict of the jury. It is a verdict made by the court. I think the court below could not properly make such an order changing the issue on which the jury passed, and allow the verdict to stand as the determination of the jury on- an issue not tried before them.

There should be a reversal of the order and judgment and a. new trial, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.


author: McAdam, J.

text:
    Shaarai Berocho, a Religious Society, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Taxes—Exemption—Religious societies.
    The premises belonging to plaintiff were used exclusively for religious purposes, but the sexton or janitor resided with his family on the upper floor, for which, however, he paid no rent. Held, that plaintiff’s right to exemption from taxation was not affected by this fact.
    Appeal from judgment in favor of plaintiff vacating certain taxes on real estate.
    The plaintiff is a religious society, incorporated under the laws of the state of New York. From January, 1883, to May, it was the owner in fee of a certain lot of land, with the building thereon, situate on the southerly side of Forty-fifth street, west of Second avenue, in the city of New York, known on the tax map of the city as No. 82, in block 248, in the Nineteenth ward. The building was used and occupied as follows.:
    The basement was used for the heater and for fuel.
    The ground floor, which extended to nearly the full depth of the lot, was used exclusively as a synagogue or place of public worship for the congregation of the plaintiff.
    The second floor was mainly used as a place for religious services or instruction on mornings and afternoons during the week and for Sabbath school exercises on Saturday afternoon and Sunday morning. The religious worship and instruction were . free to all. A small portion of this floor was separated from the rest by. a partition and was used when required as an office by the treasurer of plaintiff and by plaintiff’s trustees.
    The third or top floor contained six rooms, which were used as follows: Four of the rooms by the sexton or janitor of the building, his wife and their grandchild, as living apartments. The fifth room was fitted up as a reception room, and was used by the janitor and his family, and also as a meeting place for the trustees of the plaintiff whenever they required it. The sixth room was used as a store-room for keeping archives of the plaintiff and the paraphernalia of the synagogue.
    The sexton or janitor paid no rent for the use and occupancy of his rooms, but received a salary from the plaintiff for his services.
    During each of the years, from 1884 to 1890 (both included), plaintiff’s premises were assessed and taxed by the defendant for state and local purposes. The taxes were regular in form, but were not paid, and the plaintiff brought suit for the purpose of having the taxes declared illegal, and restraining the collection thereof on the ground that the property was .exempt.
    The court, at special term, rendered j udgment for the plaintiff granting the relief prayed for, and the defendants appeal.

      W. H. Clark and G. S. Coleman, for app’lt; B. Metzger, for resp’t.
   McAdam, J.

The facts are not in dispute, and the single question of law involved is whether the premises, during the period mentioned, were exclusively used for purposes of public worship within the meaning of the statutes exempting such property from taxation. Consol. Act, 1882, § 827. It is urged by the appellant that the premises were not used exclusively for public worship, because, as they assert, part of the top floor was occupied by the janitor of the church for residential purposes. The objection is technical and without merit. The janitor paid nothing for the use of the rooms, was not a tenant, had no proprietary interest or estate in any part of the premises, was removable at will, and was there ' simply because his presence, by night as well as day, was required as a care-taker of the property.

He was also required to heat, open, light and close the premises. He had. no possession distinct from that of the plaintiff, which, being a corporation, could care for its property and perform its mission only through the necessary agents and servants required to accomplish the praiseworthy end in view. The position of janitor was incidental to the purpose of the corporation, but his presence on or absence from the premises in no manner affected the right to impose taxes on the plaintiff’s property, if otherwise exempt from the taxing power. The property was not used for pecuniary gain, as in Congregation, etc., v. The Mayor, etc., 52 Hun, 507; 23 St. Rep., 827; nor was the principal use applied to other than religious purposes, as in Y. M. C. A. v. The Mayor, etc., 113 N. Y., 187; 22 St. Rep., 952; nor is the right of the plaintiff to exemption open to the want of incorporation which was the ground of objection sustained in Church of St. Monica v. Mayor, 119 N. Y., 91; 28 St. Rep., 257; so that the cases relied on by the defendant do not reach the vital point at issue here. The object of the statute was to foster incorporated religious societies, and it must be reasonably construed according to its spirit in furtherance of the legislative intent. It cannot be frustrated by a technicality so finely drawn as that" urged against the plaintiff’s right to exemption. Effect must be given to the principal thing the legislature had in view, the policy that dictated the act. These should not be subordinated to mere incidents required to give it efficacy and life. The former control; the latter follow.

The judgment was right and must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


author: McAdah, J.

text:
    The Sixth National Bank of New York, App’lt, v. The Lorillard Brick Works Co. et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Bills and notes—Bona fide holder.
    The mere formal discounting of a note and passing the proceeds to the credit of the payee upon the books of a bank, does not make the bank a holder for value as against the accommodation maker and endorser of diverted paper.
    3. Same.
    Plaintiff, after discounting a note, received two checks to the amount of the proceeds, one of which it credited to the account of a firm of which said payee was a member to offset a check which had been deposited by the firm and been returned, but retained such returned check and did not cancel said two checks. Held, not sufficient to show a parting with value so as to constitute plaintiff a Iona fide holder and exclude existing equities between the parties to the note.
    Appeal from a judgment entered on the verdict of a jury directed in favor of the defendants, and from an order denying a motion for a new trial.

      F. C. Barlow, for app’lt; Richard L. Sweezy, for resp’ts.
   McAdah, J.

The action is on a past due promissory note for $5,000 made by the Lorillard Brick Works Company to the order of James A. Simmons, and endorsed by him and by Jacob Lorillard, and passed before maturity to the credit of said James A. Simmons on the books of the plaintiff. The evidence established the fact that the note was made by Lorillard in the name of the brick company (he being its president), and endorsed by "him individually, all for the accommodation of Simmons, and that it was diverted by him from the purpose for which it was intended. This made it necessary for the plaintiff to show two things. First. That the plaintiff paid value for the paper. Second. That the plaintiff had no notice that the paper had been diverted. Comstock v. Hier, 73 N. Y., 269; Vosburgh v. Diefendorf 119 id., 357; 29 St. Rep., 448; Canajoharie Nat. Bank v. Same, 123 N. Y., 191; 33 St. Rep., 389. The plaintiff proved want of .notice of the diversion, and the contest narrowed itself down to the single question whether the. plaintiff paid value for the paper within the meaning of that term as declared by the courts. The mere formal discounting of the note, and passing, the proceeds to the credit of Simmons upon the books of the bank did not make the plaintiff a holder for value as against the accommodation maker and endorser of diverted paper. The plaintiff must have actually paid out and parted with the proceeds of the discount before it could acquire an indisputable title thereto. Central Nat. Bk. v. Valentine, 18 Hun, 417; Platt v. Chapin, 49 How., 318. The plaintiff concedes the proposition stated, but claims to have paid out' the proceeds within the meaning of that term as decided by the cases of Pratt v. Foote, 9 N. Y., 463, and Mayer v. Heidelbach, 123 id., 332; 33 St. Rep. 610. Those cases hold substantially that where a pre-existing debt has been actually and absolutely extinguished in consideration of the transfer of negotiable paper, the transferee is a holder for value within the rule protecting such holder against prior equities.

In Pratt v. Foote, supra, it appeared that the Prattsville Bank (owned by the plaintiff) held the defendant’s note for $1,000 and interest, payable to and endorsed by Samuel Scudder. That five days before the note matured the defendant called at the bank with Scudder’s check on the bank for the amount of-the note and interest (payable on the day the note fell due), and proposed to the cashier that he should take the check and give up the note, which the latter declined to do. It was then agreed that the check should be left, that the cashier should pin it to the note, and if Scudder’s account was made good on the day.both fell due, the check would pay the note. Five days after the note matured several sums were credited to Scudder, more than sufficient to meet the check, which was thereupon charged to Scudder’s account, and the note posted in the bill book and tickler as paid, and the charge of the check to Scudder was posted from the cash book into the ledger. The maker of the note in that case interested himself in its payment, and could on the day the credit was made have withdrawn the money from the bank on Scudder’s check, and returned it in extinguishment of the note, if the bank had required him to do so, and the court held that in legal éffect the same result was produced by the mode which the bank adopted.

In Mayer v. Heidelbach, supra, the proposition decided was that where a depositor in a bank, having sufficient funds standing to his credit, tenders to the bank a check in payment for negotiable paper it has for sale, and the bank accepts the check, charges it against the deposit, cancels and files it as a voucher, and delivers over the paper purchased, the purchaser is a holder for value, the antecedent debt of the bank being pro tanto actually and in fact extinguished.

In the present instance there was no agreement whereby any other obligation was to be paid with the moneys credited to Simmons, as in the Pratt case, and ho delivery up of other securities, as in the Mayer case. Practically all the plaintiff did in the case at bar was to take two checks from Simmons to its own order, together aggregating the amount of the proceeds of the discount. One of these it credited as a nominal book-keeping payment to the account of John Satterlee & Co. (a firm in which Simmons was a member).

The debit balance of the Satterlee account was produced by the.act’ of the bank in charging against this account a check for $30,000 of some third party deposited by Satterlee & Co. on January 28, 1890, which came back through the clearing house on the 29th unpaid. While nominally crediting the Simmons check to the unpaid balance of the Satterlee account it held on to the return cheek, thereby retaining its claim against Satterlee & Co. if the Simmons check should not prove good to the bank by reason of failure of the title of the bank to the notes discounted for Simmons’ account, thereby negativing any presumption that the crediting of this Simmons check was intended to be an absolute payment of the returned check. The tentative character of the transaction further appears from the fact that the bank never cancelled the two Simmons checks upon its iron file, according to the custom of banks respecting paid checks, but kept these checks also in its possession. In short, the plaintiff surrendered nothing on the faith of the note in suit, its position will not in a legal sense be changed for the worse by its failure to recover anything upon it, and it cannot by its own volition on any ex parte system of credits or debits conjure up a theory of payment or satisfaction not manifested or intended by the other parties- to the transaction. The bookkeeping entries constitute no parting with value within the rule making a plaintiff a bona fide holder so as to exclude existing equities between the parties. Phœnix Ins. Co. v. Church, 81 N. Y., 218; McQuade v. Irwin, 39 Supr. Ct., 396; Buhrman v. Baylis, 14 Hun, 608, and other cases before cited. There was nothing to go to the jury on any of the questions involved, and the verdict in favor of the defendant was properly directed, and the judgment entered thereon, and the order denying the motion for a new trial, must be affirmed, with costs.

Sedgwick, Oh. J., concurs.


text:
    The United States Trust Co., Trustee, Resp’t, v. Miles M. O’Brien, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Lease—Covenant —Damages.
    A lease to defendant contained a covenant that he would at any reasonable hour in the daytime permit the lessor or his agent to show the premises, and permit the usual notice to be posted and remain on the premises. Defendant sublet the premises, and his lessee refused to permit the lessor to show the premises or put up the notice. After the sub-lessee moved out the premises were vacant five months. There was no evidence that plaintiff could have let the premises, except as inferred from the fact of such refusal to show them to a person who was taken there for that purpose. Held, that there was no such reasonable certainty that plaintiff could have rented the premises if the covenant had been literally performed as to justify the recovery of rent for the time they remained vacant.
    2. Same—Injunction.
    In such case the landlord has a perfect and complete remedy by injunction to prevent interference with his rights under the covenant.
    Appeal from judgment in favor of plaintiff and from order denying motion for new trial.
    The action is by the plaintiff, as the successor in interest of the landlord of No. 240 Bast Sixtieth Street, against the defendant as tenant, to recover damages for a breach of the following covenant, contained in the lease of the premises, “ that the defendant will at any reasonable hour in the day time, permit the lessor or his agent to show the premises to such persons as he desires for for the purpose of selling or leasing the same, and will permit the-usual notice of To Let’ to be posted on the premises there to remain without molestation.” The demise was for three years commencing May 1, 1886, and ending May 1, 1889. In November, 1888, the defendant vacated the premises, and in the following February he sub-let them from March 1st till May 1, 1889, to a Mrs. Worms, who refused to permit the plaintiff to exhibit the premises or put up the bill of “ To Let ’’ provided for by the. covenant. Mrs. Worms moved away on May 1, 1889, and the premises remained vacant for about five months. They were worth about seventy-five dollars per month, and the jury awarded the-plaintiff $375 damages, being the rent for the time the premises were vacant. There was no evidence that the plaintiff could have rented the premises, except that to be inferred from the fact that the defendant’s lessee, Mrs. Worms, refused to show the premises-to a person taken there to inspect them and saying she would not-permit any person to examine them, and by her refusal to permit the bill of “ To Let ” to remain on the premises.
    The defendant moved for a new trial which was denied, and from the judgment and order denying said motion the defendant appeals.

      Durnin & Hendrick, for app’lt; Stewart & Sheldon and S. H. Benton, for resp’t.
   McAdam, J.

Liability for breach of covenant is less extensive than that for a tort, and involves only such consequences as are the direct and proximate result of the act complained of. There are certain arbitrary rules in regard to such breaches, the principal of which is to give compensation for what is actually lost, to make the damages correspond with the real injury sustained, but not to permit a recovery where the loss cannot be directly traced to the act done or omitted. It will be sufficient if the injury is a natural or necessary consequence of the act, but remote or merely possible consequences are excluded from consideration. There are many cases of loss for which the law affords no adequate remedy; hence has arisen the system of preventive justice administered in the courts of equity, by means of injunction to restrain breaches of covenant. Covenants not to sub-let or assign have not generally raised any question of damage, but one of forfeiture, 3 Sutherland on Dam., 143, owing to the difficulty in establishing any legal measure of compensation for the breach. The question involved here is much like that suggested. There is no reasonable certainty that the plaintiff would have let the house if the covenant said to have been violated had been literally performed. Sometimes the condition of the inside of a house is more uninviting than the outside, and an inside examination (if one had been afforded) might have repulsed the applicant for the house at once. There was, therefore, no solid, substantial basis on which the jury could find, as matter of fact, that the refusal to perform the covenant was the sole cause of keeping the plaintiff’s house idle for five months, and that the plaintiff as a consequence lost so many months rent. The result arrived at was necessarily speculative and conjectural. If the action had been founded on tort, instead of upon contract, a more liberal field for the exercise of discretion would have been afforded to the jury, but they were limited in this case to the awarding of compensation for the actual, not the possible loss, and there is no way of determining from any of the evidence adduced that the sum awarded was necessary to compensate the real injury done or that the acts of the undertenant were the proximate cause of so much damage. It is owing to the impossibility to arrive at a legal measure of damages with any sufficient degree of certainty that courts of equity entertain jurisdiction in such cases, Pom. Eq., § 1403, and by writ of injunction in the nature of specific performance enforce the terms of the covenant.

This could have been done here by enjoining the defendánt and his tenant from preventing the plaintiff putting up.the bill of To Let,” or from interfering with it after it was put up, or from exercising its right of showing the premises during some reasonable hour of the day to be determined by the court, and best calculated to serve the object of the covenant and the convenience of all concerned. The court gives specific performance instead of damages when it can by that means do more perfect and complete justice, and the covenant sought to be compensated by damages could have been more effectually enforced at the time with perfect and complete justice in equity than it can now by the uncertain character of proof available in an action at law for compensatory damages.

A man who enters into an agreement is bound in equity to a true and literal performance of it. He cannot be suffered to depart from it at pleasure, leaving the other party to his remedy for damages by law. Kerr on Injunction, 583. It is no answer to say that the act complained of "will inflict no injury on the plaintiff, or will be even beneficial to him. It is for the plaintiff to judge whether the agreement shall be preserved as far as he is concerned, or whether he will permit it to be violated. Id., p. 532. There is no wrong without a remedy, which means its appropriate remedy, and where that is to be found iu equity it should be sought for there, or the plaintiff may be referred to injuria absque damna or some other maxim which may defeat his recovery at law. There was nothing in the proofs presented to warrant the damages allowed to the plaintiff, and for this reason the judgment and order appealed from must be reversed and a new trial awarded, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Per Curiam.

text:
    Henry Iden, Resp’t, v. Isaac Sommers, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Sale—Conditional—Gas fixtures.
    Gas fixtures are household goods and are not within the operation of chapter 315, Laws 1884, requiring conditional sale agreements to be filed.
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying defendant’s motion for a new trial.
    The following is the opinion of the court below:
    McAdam, J. J.—The The property, consisting of “ gas fixtures,” was leased by the plaintiff to Wolff on the conditional sale and instalment plan, title to remain in plaintiff until the fixtures were paid for. While the property was in the possession of Wolff he mortgaged the property to the defendant, who subsequently foreclosed his mortgage and disposed of the fixtures, thereby making himself liable to the plaintiff in trover as for conversion. Lempke v. Peterson, 1 City Ct., 15. The defense is that the defendant had no knowledge of the conditional agreement under which Wolff held the property, and that the plaintiff having neglected to file such agreement “ with the conditions and reservations therein,” those providing that title to the fixtures should remain in the plaintiff until they were paid for became inoperative and void. Laws 1884, ch. 315. There would be force in this objection but for the fact that the act cited does not apply to “ household goods,” Laws 1885, chap. 488; Laws 1886, chap. 495, and “ gas fixtures ” are “ household goods ” within the proper meaning of that term. They are sometimes comprehended by the term “ furniture," which means “ that which furnishes or whatever is added to the interior of a house for use or convenience,” Bell v. Golding, 27 Ind., 179; Crossman v. Baldwin, 49 Conn., 491; 2 Burrills Law Dic., 33, and includes brass work, knobs, window shutters, etc. (Worc. Dic.) In Shaw v. Lenke, 1 Daly, 487 “gas fixtures” are included in the term articles of furniture movable in their nature,. although attached by screws, nails, brackets, etc. See also Lawrence v. Kemp, 1 Duer, 363; McKeage v. Hanover F. I. Co., 16 Hun, 239; aff’d 81 N. Y., 38. In Carnagy v. Woodcock, 2 Munf., 234, the phrase “ household goods ” is defined as more comprehensive than “furniture,” including everything in and about the hous.e that has usually been held and enjoyed therewith, and would tend to the comfort and accommodation of the householder. See also 9 Am. & Eng. Enc. of Law, 782, note 3; Paton v. Sheppard, 10 Sim., 186; Manning v. Purcell, 2 Sm. & G., 284. The expression “household goods” includes every article of personal property in the house or on the premises intended for ornament, use or consumption, Dayton v. Tillou, 1 Robt., 21, even coal and wood provided for the use of the family. In re Frazer, 92 N. Y., 239. These articles do not use their generic character by being placed in a saloon or store, unless the intention to exclude them from the operation of the term “ household goods ” is made apparent, and that is not so here. It is the species of property rather than the temporary use made of it that determines its true character under the statute. So considered, it follows that “gas fixtures ” are, by'force of the acts of 1885 and 1886 (supra), taken out of the operation of the act of 1884 (supra), requiring conditional sale agreements to be filed. The acts of 1885 and 1886 were passed in the interest of those who sell “ household goods ” on the instalment plan, and must be liberally construed to effectuate their purpose. The objection that a duplicate copy of the agreement was not delivered to Wolff was not made at the trial, when it might have been obviated, and cannot be raised for the first time now (cases cited in 33 St. Rep., 425.)
    If the construction aforesaid be correct, the verdict in favor of the plaintiff was properly directed, and the motion for a new trial must be denied.

      Hess, Townsend & McClelland, for app’lt; Abram Kling, foresp’t.
   Per Curiam.

The judgment and order should be affirmed, with costs, upon the opinion filed by the trial judge on denying defendant’s motion for a new trial.

Sedgwick, Cb. J., and Freedman, J., concur.


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    William B. Duncan, Jr., Resp’t, v. The New York Mutual Insurance Co., App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Insurance (marine)—Cancellation—Mistake.
    Where a policy of marine insurance is cancelled by the parties thereto at a time when both are ignorant of the fact that the vessel insured has been lost, equity may relieve from the effects of such mutual mistake by rescinding such cancellation.
    8. Same—Interest.
    Where the assured brings action to set aside the cancellation and recover the loss, interest is not recoverable, the theory of the action being that he had no present cause of action until the cancellation was set aside.

      Appeal from judgment in favor of plaintiff, after a trial at the equity term of the court, setting aside the cancellation of a policy of marine insurance, and awarding him $6,009.96 damages on the policy.

      North, Ward & Wagstaff, for appl’t; Wheeler, Curtis & Godkin, for resp’t.
   McAdam, J.

Many of the legal principles affecting the rights and liabilities of the parties under the contract of insurance have been settled adversely to the defendant in an action by the plaintiff on a similar policy on the same vessel, issued by the China Mutual Insurance Company. See 89 St. Rep., 248; affd. 41 id., 868. The new phase now presented is as-to the effect of a cancellation of the policy after the loss of the' vessel, and before either party knew of the fact It is manifest that the parties intended to cancel the policy, not from the time of its original delivery, but on and after December 8,1888, the day of the cancellation. The defendant retained the premium for the risk up to that time, and returned merely the unearned premium for the time unexpired. The vessel having been lost prior to the cancellation, the liability of the defendant had at that time become fixed and irrevocable. The plaintiff did not intend nor did the defendant expect to be released from any actual liability already incurred and then existing, but from any that might occur thereafter. The acts of the parties demonstrate this.

If it had been intended to rescind the policy in fofo, the entire premium would have been returned, for this was the consideration of the defendant’s agreement. For herb, as in Baker v. Citizens M. F. I. Co., 51 Mich., 243, the policy was not cancelled until after the loss and right of action accrued, and as was held in that case, “ There is nothing in the mere act of cancellation to operate retroactively so as to cut off the claim for damages already existing.” Perhaps the plaintiff required no equitable relief, if the surrender of the policy was intended to operate as to future liability only, but the plaintiff acted on the assumption that equitable relief was necessary to reinstate the parties to their former position, and the defendant not having raised the objection in its answer that equitable relief was unnecessary, cannot raise that question now. Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845; Ostrander v. Weber, 114 N. Y., 95; 22 St. Rep., 979. We will assume, therefore, that the. plaintiff was properly in equity, and that that branch of the court obtained complete jurisdiction over the controversy. The plaintiff did not seek for reformation, so that the court was not called upon to make a new contract for the parties, but to rescind the cancellation, so as to reinstate the parties where the contract itself placed them. While equity will not reform a contract unless the mistake is proved to be the mistake of both parties, it may rescind and cancel a 'contract upon the ground of mistake of facts material to the contract of one party only. Diman v. P., W. & B. R. R. Co., 5 R. I., 130. That is this case. Story lays down the general rule, “ that an act done or contract made under a mistake or ignorance of a material fact is voidable and relievable in equity,” Story’s Eq., §§ 140, 134, 141 to 143, and Pomeroy, in treating of the same subject, says the mistake or ignorance “ must concern a fact material to the transaction, as that a certain matter or thing exists at the present time, which really does not exist; or that a certain matter or thing existed at some past time, which did not really exist.” Pomeroy’s Eq., § 854. Chief Justice Savage in Mowatt v. Wright, 1 Wend., 355, on the same topic, said, “ that error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which does not”

In the present instance, both parties evidently acted on the supposition that the vessel was in existence, and hence contracted' with reference to a subsisting thing which in fact had no existence at the time. Neither party knew nor had any reason to believe that the vessel had foundered prior to the time of canceling the policy, and must have contracted without such knowledge or belief, and on the implication that it was still afloat and had an existence. In such a case, mutual mistake going to the essence of the contract, equity may relieve however innocent the parties may be, Story’s Eq., § 142, and the same principle is carried into all the contracts, of whatever character, based on the existence of the subject matter thereof. Thus, if an article intended to be sold has no existence, there can be no contract of sale. If A. sells his horse to B., and it turns out that the horse was dead at the time, though the fact was unknown to the parties, the contract is necessarily void, 2 Kent’s Com., 468, and the rule is in no way limited by the nature of the subject matter involved, but extends to anything capable of existence, and which the contract implies has an existence at the time it is made. 47 N. Y., 62; 52 id., 550. The setting aside of the cancellation seems warranted on equitable principles by the facts established. The insured certainly never intended to discharge an existing liability of $5,000, in consideration of the return of an unearned premium of $233.33, leaving in the possession of the insurer the premium for the risk up to and after the time the liability itself accrued, and effect should not be given to such a result where it is contrary to the manifest intention of the parties. See 16 N. Y., 407; 107 id, at 516, 517; 12 St. Rep., 288. The policy was surrendered, it is true, but there is no claim that it was destroyed or intended so to be, and the surrender, in view of the facts, is consistent with the theory that it was made because customary, and as evidence that the liability kept alive till December 3rd, 1888, was not to continue after that data The intention of the parties must characterize the act and interpret its meaning. The evidence as to seaworthiness, loss of the vessel prior to December 3rd, 1888, and damages, sustain the findings made by the trial court, and as there is no merit in the exceptions, but one question, that of interest, remains to be considered. The remedy invoked by the plaintiff was founded on the postulate that he had no action at law; until the cancellation was set aside. Following this supposition to its natural conclusion, the item of $312.99 for thirteen months interest should not have been allowed. Interest is in the nature of damages after default by the defendant, Hanley v. Crowe, 19 St. Rep., 828, and the theory of the suit (by which the plaintiff is of course bound), implies that he had no present cause of action until the cancellation was set aside. For the reasons stated, the judgment must be modified as to the item of interest, and affirmed as to the residue, without costs.

Sedgwick, Ch. J., and Freedman, J., concur.


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    Charles H. Smith, Pl’ff, v. Matilda F. Lockwood et al., Ex’rs, Def’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Contract—Performance—Non-acceptance op work.
    Defendant’s testator agreed to deliver certain stock to plaintiff, the last to be given when certain work was turned over to and accepted by a company. Held, that the fact that the work had never been accepted was no defense to an action to enforce such agreement, where it appeared that testator had assigned the contract to a third person and procured a release from the company.
    Defendant’s exceptions ordered to be heard in first instance at general term.

      G. L. Cheney, for pl’ff; L. L. Van Allen, for def’ts.
   Per Curiam.

The testator in his lifetime made with the plaintiff an agreement, whereby he promised to pay and transfer to the plaintiff 300 shares of the capital stock of the Staten Island Water Supply Company, the payment and transfer to be 150 shares upon payment to him by said company of one-half of the stock to be paid to him pursuant to the contract with the company, and the remaining 150 shares when the works are turned over and accepted by said company.

The action concerned only the last instalment of 150 shares. The defense was that the work has never been turned over and accepted by the company. The reply to this is satisfactory. Before the works had been accepted by the company, testator, in his lifetime, before the completion of his contract, assigned it to a third party with the approval of the company, that at the same time released Lockwood, defendant’s testator.

On the face of the contract and from extrinsic circumstances it appears that the acceptance was referred to only as a date or time of payment. The testator was responsible solely, so far as appears, for the acceptance never taking place. He could not by his own act dissolve the obligation of the contract and his executor remain liable upon it.

The plaintiff was present at the meeting of the directors who released Lockwood from the contract. But he did not vote for or promote in any way the assent of the company to Lockwood’s assignment of the contract or his release. Hothihg shows any assent on his part to the course taken by Lockwood.

Defendants’ exception overruled and judgment ordered for plaintiff on verdict, with costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.


text:
    Victoria P. Watson et al., App’lts, v. Mary L. Pinckney et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Trust—Statute of frauds—Agreement to hold land nsr trust.
    Plaintiffs’ father by his will directed that on the death of his wife his real estate should be sold and the proceeds divided among his children. The children claim as part of said estate certain property which had been conveyed to the wife, and paid for by their father, on the ground that he, being a real estate dealer, had the property so conveyed under an agreement by the wife that she would hold the same subject to his use during life, and to the use and benefit of their issue after his death. Held, untenable; that such oral promise or trust, if proved, would be void.
    Appeal by appellants from judgment entered on findings made at special term.

      William J. Hardy, for app’lts; Samuel R. Jones, for resp’t Gross; A. H. Ammidown, for other resp’ts.
   Per Curiam.

The plaintiffs are children and issue of children of Isaac L. Pinckney.

Isaac L. Pinckney made his last will and testament, and it was admitted to probate in the year 1867. His wife was named as sole executrix, and letters testamentary were issued to her. She was named a defendant in this action. The sixth subdivision of the will is; * * * “I hereby direct that upon the death of said executrix, my real estate, or such part thereof as shall remain unsold, be sold at public or private sale, and the proceeds thereof, together with all my property and effects of every nature or description, be divided share and share alike among my children living, or in case either shall have died leaving issue, then the child or children shall take its parent’s share.”

The object of the suit was to have it adjudged that certain pieces of real estate, standing in the name of the widow Pinckney and the executrix of his will, equitably were part of his real estate when he died. These pieces have been duly conveyed to her by third persons at the request of her husband, he paying the consideration.

As the ground for the relief asked, the complaint alleges as follows:

IV. That during his life-time and from the date of his intermarriage, in or about February 1, 1834, with the said Henrietta Pinckney, the testator lived with her (until his death) in the intimate and. confidential relation of husband and wife; and that in the course of such relations and by reason of the confidence reposed by the testator in his said wife the said testator, who carried on at said city of New York the business of buying and selling real estate, adopted and pursued the course and practice of causing conveyances of such real estate so purchased by him to be made in the name of the said Henrietta Pinckney as grantee; but that it was not the intention of the said testator, nor of his wife, that such conveyances should operate as gifts or grants to the said Henrietta Pinckney, absolutely; but, on the contrary thereof, it was mutually understood and agreed, between the said testator and his said wife, that all such real estate so purchased by him and conveyed to her should be held by her subject to the use, direction and control of the testator during his lifetime, and to such appointment, if any, as he might make by his last will and testament ; and that after his death she should stand seized of all such properties as she should not have conveyed pursuant to his directions during his lifetime, to the use and benefit of the issue of himself and his said wife in such estates, interests and shares, respectively, as they would be entitled to (the same) in case the said testator had died seized and actually possessed of the sainé; and that all such grants and conveyances of realty which were so caused to be made to the said Henrietta Pinckney by the said testator, and more particularly the grants and conveyances of the lands and tenements hereinafter more particularly described, were so caused to be made by the testator and accepted by her upon the promise and understanding on her part that she should and would hold the same to the uses and purposes aforesaid.

As to the supposed promise, it was not proved. If it had been proved it would have been void. This also is true of the so-called trust. If you suppose such an oral promise or oral trust to- have been made, it would not have been a fraud to refuse to recognize ,the validity of either. Levy v. Brush, 45 N. Y., 589. It is supposed that, as the gift was made by husband to wife, there was-some presumption of law against the gift which requires the wife' to explain something. Conceding this proposition, the wife as a. witness called by the plaintiff, and corroborated by probabilities and extrinsic circumstances, proved that her husband acted voluntarily without influence from her. The inference from the whole testimony is, that he did intentionally what he did, meaning that it should have its full legal effect

The rights of the parties as to the Third avenue property are in due course of administration and adjudication in the surrogate’s court, and there is no occasion for this court to proceed here if it would be legal to proceed under the circumstances.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


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    Ella M. Seybold, Resp’t, v. William Bostlemann, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Money paid.
    The right of a party to recover moneys advanced at the request of defendant, to he delivered to his agent, is not affected by the fact that some of such moneys were not delivered to the agent, but were disbursed by plaintiff at the agent’s request.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for a new trial.

      L. Laflin Kellogg, for app’lt; A. G. N. Vermilya, for resp’t.
   Per Curiam.

The action was for the recovery of an amount of money advanced by the plaintiff at the request of the defendant for his benefit, to be handed to Richard Seybold, an agent of the defendant.

The only dispute in the case is in regard to several advances when the plaintiff, it will be assumed, did not draw any check to the order of Richard Seybold, but did at his request and under his direction obtain money on her check and with that money make disbursements upon the work which Richard Seybold had in charge. This was the same as if Richard Seybold first received the money and then placed it in the hands of a disbursing agent for disbursement. For such a purpose the plaintiff might be a disbursing agent. For Richard Seybold to have taken it would have been a mere ceremony.

Judgment and order affirmed, with costs..

Sedgwick, Oh. J., and MoAdam, J., concur.


author: Freedman, J.

text:
    The Mayor, Etc., of New York, Resp’t, v. Thomas S. Constantine and Andrew J. Constantine, App’lts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. New trial—Code Civ. Pro., § 999. .
    A motion for a new trial on the judge’s minutes under § 999 of the Code cannot be made where the trial was before the court without a jury. Such section applies only to jury trials.
    2. Disorderly persons—Bond—Bar.
    A general judgment in favor of the surety in an action upon an undertaking given upon conviction of a disorderly person, in the absence of proof that it was given for a specific reason.which preserved the right to bring another action, constitutes a former adjudication and is a bar to another action against the surety on the same recognizance.
    Appeal from a judgment rendered in an action brought upon an undertaking executed by the defendants which recites that Thomas S. Constantine, one of the defendants, was convicted of being a disorderly person, in that he had abandoned and failed to support his family, and upon such conviction it was adjudged by the justice convicting him that he should pay to the commissioners of public charities and correction the sum of ten dollars per week for the support of his family for the period of one year, and from order denying motion for new trial.

      John D. Quincy, for app’lts; Louis Hanneman, corporation attorney, for resp’t.
   Freedman, J.

The issues in this case were tried by a judge of this court without a jury and he filed his decision containing his findings of fact and conclusions of law and the direction for judgment, and judgment was entered accordingly. In such a case there is no jurisdiction to entertain a motion for a new trial upon the minutes of the judge under § 999. That section applies only to jury trials. The motion for a new trial which was made upon all the grounds stated in said section was therefore properly denied irrespective of the particular reason which may have influenced the learned judge.

Upon the appeal from the judgment various reasons have been assigned for reversal, bat it is only necessary to notice one of them, because it is fatal. The printed case leaves it somewhat uncertain whether both defendants appeal, or only the defendant Andrew J. Constantine, but from, the points submitted it clearly appears that the appeal is prosecuted by him alone. As to him, the former judgment of, the district court which was in his favor, and which he pleaded herein as a defense, is a bar to this action.

The present action was brought in December, 1887, by the above named plaintiffs against the defendant Andrew J. Constantine as surety upon a recognizance or undertaking given by the defendant Thomas S. Constantine upon his conviction before a police justice of this city of being a disorderly person for neglecting to support his wife and children. The recognizance or undertaking was given under the provisions of the Code of Criminal Procedure, and the condition was that Thomas S. Constantine should be of good behavior for one year and should pay ten dollars weekly to the commissioners of public charities and correction for the support and maintenance of his family. The breach alleged is that Thomas S. Constantine had not paid to said commissioners the ten dollars per week from the giving of the recognizance or undertaking until the expiration of the year therein mentioned.

Upon the trial it was shown that in February, 1887, the same plaintiffs-brought an action against the same defendants upon the same recognizance or undertaking, and for a breach thereof, in the district court in the city of New York for the third judicial district ; that Andrew J. Constantine answered and set up various defenses; that, upon a trial of the issues raised by the pleadings in that action, a general judgment in favor of said defendant was rendered on or about June 10, 1887, and that upon an appeal by the plaintiffs from said judgment to the general term of the court of common pleas, the said judgment was, on or about October 29, 1887, in all respects affirmed.

As it seems to be well settled that there can be but one recovery upon the recognizance or undertaking sued upon, that a recovery may be had upon refusal to support at any time after the recognizance or undertaking has been given, and that the whole amount is forfeited upon a single breach, the judgment referred to, in the absence of proof that it was given for a specific reason which preserved the right to bring another action, constitutes a former adjudication and as such it is conclusive between the parties on every question covered by it and a complete bar to the present action, at least so far as the appellant now before the court is concerned.

Moreover it may well be doubted whether upon the. last trial the plaintiffs sufficiently established a breach of the condition within the rule laid down in People v. Pettit, 74 N. Y., 320.

The order denying defendants’ motion for a new trial should be affirmed, but the judgment should .be reversed and a new trial ordered, with costs to the appellant Andrew J. Constantine to abide the event.

Sedgwick, Ch. J., and McAdam, J., concur.


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    Justus Hoerle, Pl’ff, v. Joseph McIlhargy, Def’t. In the Matter of the Application of The McFarlan Carriage Co., App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Partnership—Receiver—Priority.
    A creditor who brings action against partners after a receiver has been appointed in an action for dissolution of the partnership does not by his judgment and execution obtain a lien on the firm assets, and an application for payment of said judgment by the receiver is properly denied.
    Appeal by the McFarlan Carriage Company, a creditor, from an order made at special term, denying an application to compel the receiver to pay a judgment recovered subsequent to the appointment of the receiver.

      William King Hall, for app’lt; Michael Jacobs, for resp’t.
   Per Curiam.

The action is for a dissolution of a partnership, and for an accounting. In it a receiver had been duly appointed, and had taken possession of the partnership property. After this the appellant began ah action against the partners for a partnership indebtedness, and recovered judgment in the sum of $90. On these facts, the appellant made petition to the court below that the receiver pay out of the funds in his hands the amount of the judgment. The court denied the application, and this appeal is taken from that denial. The decision was correct There was no legal lien on the property through the judgment and execution. The property was in custody of the law and was inaccessible to an execution or its usual consequences. The sheriff to levy, would be obliged to ask the leave of the court to that end. As the receiver had not taken possession after the execution had issued, the court would not be pressed by the consideration that there was a legal lien. In a case like this the court should look into the whole case, and find whether substantially the applicant had a right to a preference. If the estate were certainly solvent, leave might be given. But if insolvent and there was nothing in the nature of the claim that should give priority, the court should deny the application. In this case, there was no reason why the applicant should not share equally with other creditors.

Order affirmed, with ten dollars costs.

Sedgwick, Ch. J., and McAdam, J., concur.


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    Julius Lehman, Rec’r, Resp’t, v. George F. Bentley, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Fraud—Transfer by debtor.
    A conveyance of property, the only consideration of which is an agreement by the transferee that he will apply the proceeds in payment of the debts of the transferor, is void unless executed in the manner prescribed for a general assignment.
    S. Same—Future services.
    A conveyance in consideration 'of future services of any kind is also void against then existing creditors.

      Appeal from a judgment rendered at equity term adjudging that the transfer of certain book accounts and chattels by the firm of Wilkinson & Sterling to the defendant was made to hinder, delay and defraud creditors, and directing a reconveyance of the chattels and accounts not reduced to money, and a money judgment of $681.47, being for the value of the property and accounts sold or collected, with interest and costs.

      John B. Uhle, for app’lt; Hatch & Warren, for resp't.
   Freedman, J.

A careful examination of the whole case has satisfied me that the evidence amply sustains the- findings of fact made by the trial judge, and that the judgment creditors represented by the plaintiff as receiver are not estopped from maintaining the action. The admissions made by the defendant in his answer are conclusive upon him. Under these circumstances the legal conclusions reached are the logical and inevitable result-. Even in the absence of an actual intent to hinder, delay or defraud creditors, a conveyance of property, the only consideration of which is an agreement on the part of the transferee that he will apply the proceeds in payment of the debts of the transferor, is void unless executed in the manner prescribed for a general assignment. Britton v. Lorenz, 45 N. Y., 51. And a conveyance in consideration of future services of any kind is also void against then existing creditors. Davis v. Briggs, 24 St. Rep., 896; Swift v. Hart, 35 Hun, 128.

The exceptions taken by the defendant are untenable.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurs.