text:
    Anthony Yeoman et al., App’lts, v. John Townshend et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Fraud—Presumption.
    Where actual fraud is alleged, it will not he presumed, hut the burden is on the party alleging it to prove it.

      2. Same—Attorney.
    Where an attorney, who has conduct of a sale, becomes a purchaser, his client may avoid the sale and claim the benefit of the purchase.
    3. Same—Limitation.
    In such case, the statute of limitations begins to run from the time the wrong was committed.

      Appeal from a judgment dismissing the complaint.
    J/. T. Rosenberg {John S. Davenport, of counsel), for app’lts; J'ohn Townshend, for resp’ts.
   O’Brien, J.

The complaint alleges that in 1865 John Townshend, then and still an attorney and counselor at law, approached one Anthony Yeoman, now deceased, and informed him that by reason of his relations to persons who had an interest in four lots of land at Eightieth street and Eleventh avenue he was possessed of certain rights therein, and requested to be intrusted to bring a suit in partition to settle the rights of the different parties, which request was acceded to, and a partition suit subsequently commenced. It is further alleged that upon a sale in such partition ■suit, although the property was bid off in the name of others, it was, in fact, purchased by Townshend, who thereafter, by various devices, succeeded in preventing the knowledge of such purchase being brought home to those who, after the death of Anthony Yeoman, in 1871, were interested in the property. Upon such facts amplified, the complaint by way of relief demands that Townshend be adjudged to hold the title to such premises in trust merely for the plaintiffs.

The first question presented relates to the form of the action— as to whether it is one for actual or constructive fraud. If the former—and this, as we understand it, is the plaintiff’s contention-then, upon the finding made by the learned judge below that no actual fraud is proven, which finding is justified by the evidence, the complaint upon this ground was properly dismissed. Where actual fraud is alleged it will not be presumed, but the burden is on the parties alleging it to prove it. Upon the theory of constructive fraud, which presents the other phase by which the rights of the plaintiffs may be determined, we shall take the facts as presen ted most favorably to the plaintiffs. The charge is that the defendant Townshend, as an attorney, purchased the property put up for sale, which it is insisted entitled the plaintiffs, as heirs at law of Anthony Yeoman, deceased, and as parties to such partition suit conducted by the attorney, to avoid the sale, and have it adjudged to be made for their benefit.

The defenses interposed were that the attorney did not purchase at the sale, and that, if he did, the plaintiffs have, by lapse of time, lost their right to avoid the sale. Notwithstanding the tendency of the evidence, which would seemingly show that the property was originally bought at the sale by one Huntington, who thereafter sold two of the lots to the wife of the defendant Townshend and two to one Mitchell, whom subsequently sold to a Miss Langdon, by whom, in 1887, they were conveyed to Townshend, we shall assume, ad did the trial justice, that the attorney, though not in name, was in reality the purchaser at such sale. It may be regarded as settled that, where an attorney who has conduct of a sale becomes a purchaser, his client may avoid the sale, and claim the benefit of the purchase. Fulton v. Whitney, 66 N. Y., 548. And to entitle the client to such relief he is not required to allege or prove any fraud, because such a purchase is one which equity forbids, and to avoid which all that is. necessary to be shown is the relation between the parties and the purchase. This appearing, it is at the option of the principal to1 repudiate or affirm the contract of sale, irrespective of any proof of actual fraud. Where, therefore, no actual fraud has been, proven, and the relief, if granted, is to be upon the theory of constructive fraud, the question is, what lapse of time will bar the-action? The sale was in 1867. The plaintiffs, ancestor did not-die until 1871, and from the date of the sale until his death in the latter year he took no action to repudiate the sale. This action was commenced in 1892.

The unauthorized purchase by an attorney of property intrusted to him to sell is sometimes termed a “ constructive fraud,” and the-attorney is termed a “ trustee ex maleficio. ” A distinction must-be drawn with respect to the statute of limitations between an actual, express, subsisting trust, or a case of actual fraud, and the-case of an implied trust, of a trustee ex maleficio, or a constructive-fraud. In the two former the statute does not begin to run against the beneficiary or cestui que trust until the trustee has openly, to-■the knowledge of the beneficiary, renounced, repudiated, or disclaimed the trust; while in the latter case the statute begins to run from the-time the wrong was committed by one chargeable as trustee by implication. This distinction is recognized by our Code of Civil Procedure. Thus, by section 410, it is provided that where a right grows out of the receipt or detention of money or property by an agent, trustee, attorney or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which the right depends. The two principal witnesses for plaintiffs, with some reluctance and some qualifications as to the exact date when the knowledge came home to them, admit that as early as 1871 they heard or were informed in some way of the claim made by the defendant Townshend to the property in question, but refrained from taking any action for more than twenty years thereafter. If, therefore, section 410 were applicable, we do not think the plaintiffs would receive much comfort therefrom, for it thus appears that, as to some of the plaintiffs at least, the right to demand the property was coniplete from the time that they were appraised of the attitude of the defendant in claiming the property as his own, and from that time undoubtedly the statute would run. We do not think, however, that upon the facts here appearing section 410 is applicable, but agree with the view taken by the learned trial justice, to whose reasoning nothing need be added, that the ten-years statute of limitations, as provided by section 388, applies; and in dismissing the complaint upon the ground that it was barred by lapse of time we think he correctly disposed of the case.

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

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    American Exchange National Bank, Rep’t, v. New York Belting & Packing Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Bills and notes—Diversion.
    In case a note has been wrongfully diverted, plaintiff is bound to show, not only that he is a holder for value, but that he had no knowledge or notice of its diversion or facts from which such notice is inferable.
    Appeal from a judgment entered on a verdict directed by the court in favor o£ plaintiff.

      Evarts, Choate & Beaman (Austin G. Fox and James J. Myers, of counsel), for app’lt; Billings & Cardozo (Michael H. Cardozo, of counsel), for resp’t.
   Follett, J.

This action was brought on a promissory note made July 18,1890, by the defendant, whereby it promised to pay to its own order $5,000, eight months after date, at the Maverick Rational Bank of Boston. The defense interposed is that the note was made, indorsed and delivered to the Potter-Lovell Company, as the agent for the plaintiff, for the purpose of having it discounted or sold, and the avails transmitted to the maker. It is also alleged that the Potter-Lovell Company wrongfully pledged it as security for its indebtedness to the plaintiff, and that the plaintiff did not receive it for value in good faith. It was shown beyond dispute that the note was made and delivered to the Potter-Lovell Company for the purpose of being sold or discounted, and the avails transmitted to the defendant. May 28, 1890, the Potter-Lovell Company borrowed $100,000 of the plaintiff, and gave its promissory note, whereby it promised to pay that sum four months after date. When this loan was obtained the PotterLovell Company held two notes made by the defendant for $5,000 each, one dated February 19, 1890, and the other March 26,1890. Whether these notes had been diverted or not does not appear. The Potter-Lovell Company pledged these notes to the plaintiff with other security as collateral on its note for $100,000. The plaintiff was a holder for value of these notes. Bank of N. Y. v. Vanderhorst, 32 N. Y., 553; Brookman v. Metcalf id., 591; Moody v. Andrews, 39 N. Y. Super., 302; affirmed 64 N. Y., 641. Subsequently the Potter-Lovell Company withdrew the notes of February 19th and March 26th, and substituted the one in suit in their place as security for the $100,000 loan, which made the plaintiff a holder for value of this note. These facts were proved by a witness called by the defendant, and it was not in a position to go to the jury on the question of his credibility. The note having been wrongfully diverted, the plaintiff was bound to show, not only that it was a holder for value, but that it had no knowledge or notice of the fact that the note had been wrongfully diverted, or facts from which the fact that it had no notice of the diversion—good faith—is inferable. Vosburgh v. Diefendorf, 119 N. Y., 357; 29 St. Rep., 448; Canajoharie Nat. Bank v. Diefendorf 123 N. Y., 192; 33 St. Rep., 389; Joy v. Diefendorf 130 N. Y., 6; 40 St. Rep., 491; Sixth Nat. Bank v. Lorillard Brick Works Co., 61 N. Y. Super., 29; 46 St. Rep., 235. But when it is shown that lull value was paid for a note, taken in the usual course of business, and there is no circumstance which tends to show that the purchaser had notice that it had been diverted, it is to be presumed that it was acquired in good faith and without notice of the diversion. Dalrymple v. Hillenbrand, 62 N. Y., 5; Cowing v. Altman, 71 N. Y., 435; Byles, Bills, 13th Eng. ed., 123 et seq.; Abb. Tr. Ev., 449; 1 Daniel, Neg. Inst., § 819. The evidence shows that the plaintiff acquired the note for value, and in the usual course of business, and no fact or circumstance has been called to our attention or found by us in the record which rebuts the presumption, or which made the question of notice—good faith—one for the jury.

The judgment should be affirmed, with costs.

All concur.,


author: Van Brunt, P. J.

text:
    Joseph Bacharach, App’lt, v. Charles Von Eiff, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December, 15, 1893.)

    Deed—Covenant.
    A grantee, who takes his deed with knowledge that an elevated railroad is in operation in the street on which his lot abuts, cannot recover from his grantor on the ground that such railroad is an incumbrance within a covenant against incumbrances.
    Appeal from' a judgment overruling a demurrer and directing judgment absolute for defendant.

      B. Lewinson, for app’lt; Henry Meyer, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleges a contract between one Beran and the defendant for the purchase of premises Ho. 347 Greenwich street; that, by this contract, a general warranty deed was to be delivered ; that Beran assigned the contract to plaintiff; that plaintiff paid the consideration named in the contract to the defendant, and on or about December 1, 1891, the defendant conveyed the premises to the plaintiff; that, in and by the deed of conveyance, the defendant covenanted “that the said premises are free from incumbrances,” (except a mortgage and lease therein referred to;) that defendant violated his said contract, and said covenant in his deed to plaintiff, in that said premises were not free and clear from all incumbrances, in that there existed, immediately in front of said premises, an elevated railroad, which railway interferes with the beneficial use and enjoyment of the premises ; and that the defendant has executed an instrument under seal, releasing all claims he might have as owner of the premises conveyed. The answer admits the contract, the deed, and the covenant in the deed, denies violation of the covenant, and alleges, as and for an additional defense, that the Manhattan Railway Company was in lawful possession of the elevated iron structure, and lawfully operated the steam railway mentioned in the complaint, past and in front of said premises, at the time of the making of said contract and the assignment thereof, and the execution of the deed, and that such possession and operation of said railroad was actual, open, visible, and notorious, and well known to the plaintiff and Beran. To this additional defense the plaintiff demurred, upon the ground that it was insufficient, in law, upon the face thereof. Upon the trial of this demurrer, the defendant attacked the plaintiff’s complaint, and the court, having held the complaint bad, gave judgment absolute for the defendant; and, from the judgment thereupon entered, this appeal is taken.

It seems to us that much learning has been wasted, and much confusion produced, in the consideration of the questions arising upon this demurrer, because of the failure to notice the paucity of allegation in the complaint, and the fact .that easements which do not exist cannot be appurtenant to an estate. The complaint nowhere intimates that any part of the demised premises are subject to any incumbrance, but simply alleges that immediately in front of said premises—whether in the public street, or upon other land, the complaint does not inform us—a railway is erected and operated, which railway interferes with the beneficial enjoyment of the premises of the plaintiff, and. that the defendant has executed an instrument under seal, a copy of which is annexed to the complaint; upon reference to which instrument, it is found to be a release and conveyance of all such easements, etc., as might be necessary for the elevated railway structure and the operation of the railway. There is, however, no allegation that there were any easements appurtenant to this land which was conveyed, and we cannot assume that there were. But even if it had been alleged in this complaint that this lot fronted on Greenwich street, and that appurtenant to such lots there is usually an easement of light, air, and access from the street, which passes upon the conveyance of the premises; in view of the allegations in the answer, would the situation have been changed ? We think not. Undoubtedly, all easements appurtenant to premises follow a conveyance thereof; but, when an easement has been extinguished, there is nothing to follow the conveyance of the premises. The allegation in the answer is that the plaintiff knew, at the time of making his contract and taking his deed, that this easement was in the actual use and occupation •of the railway company. This was notice to him that the railway had some claim of right to this easement, and that it was partially extinguished; and, if he took this conveyance with this notice, he cannot now be heard to complain that he did not get as much easement as he expected to do. He got all there was, and that is all that the defendant covenanted to give him. One piece of property may have more easements appurtenant to it than another piece; and, if no easement is appurtenant, none can follow a conveyance, as has already been said. There is no covenant in the deed as to what the appurtenances are; but all there are, are conveyed, and no more.

The judgment appealed from should be affirmed, with costs. If the plaintiff desires to amend his complaint,, he should be allowed to do so, upon payment of the costs of appeal and costs of the court below.


author: Per Curiam.

text:
    John D. Cheever, Resp’t, v. Pittsburg, Shenango & Lake Erie Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Costs—Witness fees—Affidavit.
    An affidavit for the allowance of witness fees and mileage, which states-that the persons attended for the purpose of being witnesses on the trial of the cause, and specifies the number of miles traveled by them within the state, is sufficient.
    2. Same.
    The affidavit, where it appears that the witnesses are officers of a corporation, should distinctly show, not only that the witnesses have attended but that the fees have been or will be paid.
    Appeal from an order denying a motion for a new taxation of costs.

      F. S. Smith, for app’lt; A. G. Fox, for resp’t.
   Per Curiam.

The claim made is that the clerk erred in refusing'to tax mileage and witness fees of certain officers of the defendant corporation, who came from another, state for the purpose of attending as witnesses upon the trial' of this action. The ground upon which it is sought to sustain the order of the court below is that the defendant could not tax the mileage of its officers who came to New York to attend the trial as witnesses upon its behalf, and it is urged that as they were not called as witnesses, and there is no statement in the affidavit that they attended only as witnesses, and not as officers, and because there is no statement that they were deemed absolutely material and necessary, nor any statement of any fact which the defendant expected to prove by them, witness fees and mileage cannot be taxed. The affidavit of the defendant alleges that each of the persons attended for the purpose of being a witness upon the trial of the case upon various-occasions, and also states the number of miles traveled within the state by the witnesses in question. There is no contradiction of this allegation. It is true that they were not called as witnesses for the defendant because the defendant admitted the cause of action upon which the verdict was directed, and, as to the two other causes of action which were litigated, the complaint was dismissed at the close of the plaintiff’s case. None of the grounds urged upon the plaintiff’s points seems to be well taken.

But it is manifest that the court below was correct in denying the motion for retaxation, for the reason that it is the duty of the taxing officer to see that the prevailing party recovers no more for the expenses of witnesses than he has himself actually and in good faith incurred. The object of the law is reimbursement, and not profit. Haynes v. Mosher, 15 How., 216. It is true that the affidavit of the managing clerk in the office of the attorney for the defendant states that the disbursements set forth in Schedule A,' annexed to and made a part of said affidavit, had been made or incurred at and for the February and April terms of this court. But there is no pretense that any witness fees were paid to any of the witnesses named, who are officers of the corporation, nor does it appear that there is any expectation upon the part of the attorney that such witness fees and mileage are to be paid to the various witnesses named in the affidavit. We think that, where it appears that the witnesses for whom the fees and mileage are charged are ■officers of the corporation, the affidavit upon which the taxation is claimed should distinctly show, not only that the witnesses have attended,'but that the fees have been or will be paid. It is to be noticed, upon a reference to § 3256 of the Code, that the object of the law, as has been already stated, is reimbursement, and not profit.

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


text:
    John R. Domschke, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Appeal—First instance.
    Failure to object to evidence when oSered, on the ground that it is not within the pleadings, is a waiver of the objection.

      % Damages—Flevated railway.
    An owner, whose premises abuts upon an elevated railway, if he convesy such premises pendente lite, can recover for past damages.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff.
    From May 1, 1884, to January 16, 1893, the plaintiff was the owner in fee of Nos. 1116 and 1168 Second avenue, between Sixty-first and Sixty-second streets. In 1879, the Metropolitan Elevated Bailway Company began, and in 1880 completed, an elevated railroad in said avenue, which the Manhattan Bailway Company has, since its completion, operated under a lease from the first-mentioned corporation. April 20, 1890, this action was begun, to recover the damages—alleged to be $3,000—caused to the premises by the construction and operation of the road, and for an injunction restraining its future operation. The referee awarded $611.49 as damages to the property, arising from the operation of the road between the date when the plaintiff acquired title and January 26, 1893, the date of the conclusion of the trial of this action, and directed that a judgment be entered therefor, and also that the defendants be restrainéd from further operating the road unless they, within 90 days after the notice of the entry of the judgment, pay to the plaintiff $1,000, with interest from January 26, 1892, for the right to maintain and operate, in the future, the road, provided the plaintiff, and all persons interested in the premises, execute to the defendants a grant of the right to maintain and operate the road. May 3, 1893, a judgment was rendered on this report, from which the defendants have appealed.

      Howard Me William, for app’lts; Henry 6?. Atwater, for resp’t.
   Follett, J.

On the 16th of January, 1893, and before the ease was decided, the plaintiff conveyed the fee of the premises to Max Frankenheim, by a warranty deed containing the iollowing clause:

“ The party of the first part, however, reserves any right of action which he has, or may have, against the elevated railroad, by reason of its structure in front of the above described premises, up to the date hereof; but this shall not be construed as in any manner giving the party of the first part the right to convey any easement in or to said premises.”

February 7, 1893, the defendants learned of the conveyance, and on the 9th of that month-they moved that the case be opened, and that they have leave to introduce the deed in evidence. The referee granted the motion, “with the limitation, however, that said deed shall be admitted as evidence only so far as it tends to show the value of said premises at the date of its delivery, and for no other purpose, and with no other effect, whatsoever. Plaintiff may introduce evidence in explanation or rebuttal.” Thereupon the deed was received in evidence, subject to said limitation, and the defendants “ excepted to the refusal to admit the deed as evidence of the conveyance of title from the plaintiff.”

The plaintiff insists that the deed was not admissible in evidence to defeat his demand for injunctive relief, because the conveyance was not set up in a supplemental answer. A perfect answer to this position is that no such objection was taken when the deed was offered in evidence. Corser v. Russell, 20 Abb. N. C., 316; 9 St. Rep., 56. In Gray v. Barton, 55 N. Y., 68, it was proved that, the plaintiff had gived to the defendant the demand on which the action was brought. On appeal, the point was raised that this fact was not pleaded. The court said:

“ The counsel for the respondent insists that the defendant cannot avail himself of the latter, for the reason that it was not set up in the answer. It might have been obviated by procuring an amendment, if necessary. Omitting to make it upon trial was a waiver.”

A memorandum of the decision of the supreme court, Gray v. Barton, 1 Alb. Law J., 122, shows that the gift was made before the action was begun. But the language quoted expresses the general rule that in case a relevant fact is offered to be proved, which should have been pleaded, the party against whom it is offered waives this point, unless the admissibility of the fact is objected to on the ground that it is not pleaded. Besides, this conveyance was the voluntary act of the plaintiff, and the rule requiring amendments in such cases is not as stringent as when the fact has occurred without the agency of the party against whom it is offered.

The plaintiff having parted with his title, and all right to the damages, to the fee, he was not entitled to injunctive relief In his conveyance it is expressly provided that he has no right to convey the street easements, and a deed or release from him would afford no protection to the defendants against the claim of his grantee, or of his successors in interest. The defendants insist that this being an equitable action, and the plaintiff having voluntarily divested himself of all right to equitable relief, the action should have been dismissed, and that the referee erred in awarding past damages. This precise question was decided against the defendants in Van Allen v. N. Y. El. Railroad Co., 3 Misc. Rep., 53; 51 St. Rep., 767; and substantially the same question was decided in Renwick v. N. Y. El. Railroad Co., 15 N. Y. Supp., 149; 39 St. Rep., 381. In this state legal and equitable relief is administered by the same court, and, when the action was begun, the plaintiff had a good cause of action for equitable relief; and the fact that since he has ceased to be entitled to such relief is not a sufficient ground for dismissing the action, and it should be retained for the purpose of assessing such damages as he is entitled to. We find no erroneous rulings in the reception or rejection of evidence, or in the findings, or refusals to find, relating to the question of past damages, and we think the judgment should be modified by striking therefrom the second and third divisions thereof, and, as so modified, affirmed, with costs in this court to the appellants, and against the respondent.

All concur.


text:
    Exchange Fire Insurance Company of New York, Resp’t, v. John G. Norris et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Pleading—Frivolous.
    When it requires argument to determine whether an answer sets up a good defense or not, the pleading is not frivolous.

      2. Mortgage—Tender.
    In order to extinguish a mortgage lien, the tender need not be kept good.
    Appeal from a judgment in favor of plaintiff on the ground of the frivolousness of the answer.
    The answer is as follows:
    “ The defendants Albert I. Sire and Meyer L. Sire, separately answering the complaint herein, respectfully show:
    “ (1) They admit all the allegations of said complaint, except-that they deny 1 that the interest upon said bond and mortgage, which became due and payable on the 1st day of November, 1892, has never been paid; that more than thirty days had elapsed since the same became due and payable; that the plaintiff has elected, and now elects, to deem the whole principal sum to be immediately due and ‘payable, and there is now justly due to plaintiff upon the said bond and mortgage the principal sum of $32,000, together with interest thereon from the 15th day of September, 1892,’ except as hereinafter alleged. •
    “ (2) And. further answering, defendants allege that on or about the date of the execution and delivery of the bond and mortgage referred to in said complaint, Mr. 0. AY. Bennett, the attorney acting on behalf of the plaintiff in closing the loan, represented to Albert I. Sire, acting on behalf of the mortgagor and defendant herein, John Gr. Norris, that the first installment of interest upon the mortgage, falling due by the terms thereof the 1st day of November, 1892, need not be paid until the second installment of interest became due, to wit, May 1, 1893; and the said attorney further represented that due notice to pay all interest would be sent said John Gr. Norris on or about the last-named date, and before he would have to pay the same.
    “(3) That on the 4th day of May, 1893, the defendant and mortgagor, Norris, received a written notice from the plaintiff, mailed the day previous, that interest amounting to $1,000 was due on the mortgage, and requesting him to call and pay the same, and that on the 3d day of June, and within thirty days from the receipt of said notice, said John Gh Norris, relying upon said representations and notice, and upon the thirty-days clause contained in the mortgage, by Albert I Sire, his attorney, duly tendered to the plaintiff before suit brought the said amount, of interest due, which plaintiff refused to accept.
    “(4) That on said 3d day of June, 1893, and after the said tender of interest as aforesaid, the plaintiff, without heeding the same, began the present action of foreclosure, and refused to withdraw the same, although said defendant Norris, immediately after the commencement thereof, offered again to pay said interest, together with all costs of the action ; and on the 16th day of June, 1893, duly made a retender to the plaintiff, and also to its attorney, of said interest, amounting to $1,000, and also interest on that amount, for delay, together with all costs of this action, and all of which was refused.
    “ (5) And defendants further allege that they are, both in behalf of themselves and of said John Gr. Norris, mortgagor, still ready and willing to pay plaintiff all of said interests and costs, for which defendants contend that there has been no default in payment of the said interest, or any breach of the conditions of the mortgage; and they further contend that, if there has been any default or breach of such conditions, the same is wholly technical in character, not injurious to the plaintiff, and such as a court of equity ought to relieve against. Wherefore defendants pray that this action may be dismissed, with costs, and for such other relief as to the court may seem meet.”

      A. I. Sire, for app’lts; Edward F. Brown, for resp’t'.
   Van Brunt, P. J.

The complaint in this action is the ordinary pleading upon the part of the plaintiff for the foreclosure of a mortgage upon failure to pay interest when due. The answer alleged an agreement extending the time of payment, and also a tender to the plaintiff before suit brought of the whole amount of interest due, and a refusal dpon the part- of the plaintiff to accept. It seems to be apparent that the learned judge who heard the motion in the court below did not think the answer was frivolous, because he thought it necessary to write quite alengthy opinion for the purpose of showing that.no defense was set up by the defendant. It is also equally true that the learned counsel for the respondent does not think that the answer is frivolous, as he has submitted lengthy points upon the question as to whether any defense is set up in the answer or not. It has been too often determined to require demon.stration here that, if the question as to whether an answer sets up a defense or not requires argument, the pleading is not frivolous. The ground upon which the respondent claims that the tender was a nullity was because it was not kept good, and the money paid into •court. That this is not necessary in order to make a tender extinguish the lien of a mortgage was held so far back as the case of Kortright v. Cady, 21 N. Y., 343. And it may very well be argued that by the tender of this interest, which was due at the time of the tender, and which was all that was due, because there was no evidence of any election at that time upon the part of the plaintiff the lien of the mortgage to that extent may have been extinguished. In such cases it is not necessary in order to defeat the lien, that the tender should be kept good. It was„ held in Cass v. Higenbotam, 100 N. Y., 248-253, that where a tender has only the effect to extinguish the lien, and not to discharge the debt, bringing the money into court is not required. The defendant undoubtedly set up a defense of greater gravity than he imagined at the time he pleaded it. It seems to us that the pleading is clearly not frivolous, and the order should be reversed, with ten dollars ■costs and disbursements.

All concur.


text:
    John P. Holt et al., as Assignees, etc., Resp’ts, v. James P. Streeter, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Arrest—Action in tort.
    A complaint, which alleges that defendant acted for plaintiff in a fiduciary capacity and, while so acting, collected, neglected and refused to pay over, money, states a cause of action in tort.
    "3. Pleading—Abatement.
    A plea in abatement for defect of parties, which fails to allege that the other parties are within the jurisdiction of the court, is bad.
    Appeal from an order denying a motion to vacate an order of .arrest.

      John A. Grow, for app’lt; Chas. K Rushmore, for res’pt
   Per Curiam.

The complaint alleges that the defendant, as the agent of the plaintiffs, was intrusted by them with the sale of certain goods, with authority to collect and receive the proceeds of such sales, and to remit and pay over the same to the plaintiffs, when collected, and that he acted for the plaintiffs in a fiduciary capacity. It further alleges that while so doing he sold the goods, collected the moneys, and neglected and refused to pay over the proceeds. The grounds upon which the order of arrest was sought to be vacated were: First, that the action itself was one ex contractu; and, second, that the defendant was a member of the firm of James P. Streeter & Co., the other members being one Richardson and the defendant’s wife, and that the failure to join them shows a nonjoinder of necessary parties defendant, which is urged as a plea in abatement.

With respect to the first, it is clear from the substance of the complaint given that the action is one in which it is to recover from the defendant the property of the plaintiffs which he has wrongfully converted, as alleged, to his own use. To the plea in abatement there are two answers. First, that the plea itself is bad, in that it fails to allege that the. other parties are within the jurisdiction of the court; and, secondly, because there being more than -one who had wrongfully converted the property of the plaintiffs, they would be at liberty to proceed against any one of the tort feasors. Apart, however, from this last consideration, we think it clearly appears that the transactions were with the defendant personally; but, whether this is so or not, the preponderance is not in favor of the defendant upon this question. Our conclusion is that the order was right, and should be affirmed, with $10 costs and disbursements.


text:
    James E. Howell, App’lt, v. William Donegan, Resp't.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)
    Fraudulent conveyances—Trust.

      A conveyance "by an insolvent debtor to a trustee to permit the former to use, occupy and enjoy the same so long as the title shall remain in the trustee, is void.
    Appeal from a judgment in favor of the defendant.

      Goodrich, Deady & Goodrich (H. W. Goodrich, of counsel), for app’lt; Reeves & Todd (Ambrose G.. Todd, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to compel the specific performance by the defendant of a contract for the purchase of real estate. The defense denied that the plaintiff was able to give a good title, and alleged that in the contract he was named as trustee, but the defendant had been unable to ascertain' the nature of the trust. Upon the trial it appeared that the premises in question had been conveyed by one Alfred Lister to the plaintiff, by a deed absolute on its face. Concurrently with the receipt of the deed by the plaintiff, he executed a declaration of trust, in which, after reciting that the firm of H. S. Miller & Co., composed of one Miller and the said Lister, and the corporation of H. S. Miller & Co., had found it necessary to ask for an extension of time in which to pay their creditors, and had formulated a plan therefor, a copy of which was set out in said deed of trust, and that certain of the creditors of said firm and corporation had consented to the extension agreement, which is also set out in full, and, after reciting the conveyance by the said Alfred Lister of certain lands in the state of New Jersey, and by a separate deed of the tract of land in question in this action, which deeds were by said declaration of trust made part and parcel of the same, the said declaration proceeds:

“ Now, therefore, in consideration of the premises, I, James E. Howell, do make known hereby and declare that I do now, and that I, and my heirs ahd assigns, shall and will at all times hereafter, hold the said lands and premises so conveyed to me upon the following trusts: First. To permit the said Alfred Lister to use, occupy, and enjoy the same, and to receive the rents, issues, and profits thereof to his own use, so long as the title to the said lands shall remain in me, he in the meantime paying all interest on mortgages thereon, and all insurance premiums, taxes, and other public impositions and expenses. Second. To sell and convey the said lands and premiums at such times, in such portions, and for such prices as I may in my discretion determine. Third. To pay the necessary and reasonable expenses attending the consummation of the plan of settlement hereinabove set out, including a reasonable compensation to myself and to the attorneys of the said Alfred Lister for their services in connection therewith. Fourth. To disburse the balance of the moneys received by me from the sale of the said lands for the purpose of carrying into effect the said plan of settlement, as the same shall be necessary for that purpose. Fifth. Upon the payment and settlement of the debts of the said firm and corporation, or upon the consent of their creditors thereto, to retransfer what shall remain of the said lands and premises to the said Alfred Lister, his heirs and assigns.”

The court dismissed the complaint upon the merits, and gave judgment for defendant for the amount paid upon the contract, and also for the counsel fees in searching the title, and the costs of the action; and from the j udgment thereupon entered this appeal is taken.

It is perfectly appárent that the title tendered was absolutely bad, and that the plaintiff could convey no title that could not be asailed by any of the creditors of Lister. The whole scheme upon its face shows that it was gotten up to hinder, delay, and defraud the creditars of Lister. A conveyance by an insolvent debtor to a trustee of his property, to permit the insolvent debtor to use, occupy, and enjoy the same, and to receive the rents, issues, and profits thereof for his own use, so long as the title of the land should remain in the trustee, does not require argument to show its nullity. The deed and the declaration of trust formed but one instrument. Where a deed and instrument of defeasance were executed pursuant to an original agreement, and constitute part of the same transactian, though not written at the same time, nor of even date, they must be read together. Kraemer v. Adelsberger, 122 N. Y., 467; 34 St. Rep. 24; Knowles v. Toone, 96 N. Y., 534. It is not necessary to consider the other points raised in the case, as it is apparent that the respondent was justified in refusing to take a title which would not have been of the slightest value.

The judgment should be affirmed, with costs.

All concur.


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    London & Brazilian Bank, Resp’t, v. R. St. G. Walker, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Injunction—Damages.
    Where a person is obliged to employ counsel to procure a modification of an injunction in order to carry on his ordinary business, he is entitled to recover the amount of expenses so incurred, though the parties to the injunction action have settled it.

      Appeal from an order' denying a motion for a reference to ascertain the damages sustained by defendant, by reason of an injunction.

      I. II Perry, for app’lt; J. W. Greene, for resp’t.
   Van Brunt, P. J.

The plaintiff in this action was a bank corporation, organized and existing under the laws of Great Britain, and having an office for the transaction of business in the city of New York; and in March, 1893, at the request of the firm of Barr & Co., also doing business in this city, issued its certain letter of credit for £9,100, and thereafter the plaintiff, pursuant to the terms of said letter of credit, duly accepted for account of said firm of Barr & Co. a certain bill of exchange drawn under said letter of credit for over £8,000, and as security for the payment of said draft Barr & Co. caused to be consigned to the plaintiff 2,000 bags of coffee, together with the invoices thereof, properly certified. The plaintiff subsequently delivered to said firm, at its request, said bill of lading, upon the express understanding and agreement that upon the sale of said merchandise by Barr & Co. they should hand over the proceeds of said sale to the plaintiff. On the 14th day of April, 1893, Barr & Co. sold the whole of said 2,000 bags of coffee, and received in part consideration therefor the sum of $53,000, and in violation of their agreement failed to pay said sum of $53,000, or any part thereof, to the plaintiff, but deposited the whole of said sum in the Corn Exchange Bank, which bank, upon its receipt, issued and delivered to said firm a certificate or cashier’s check representing the sum so deposited, by which said bank agreed to pay to the order of said firm of Barr & Co., or to such persons as the superintendent of the Coffee Exchange of the city of New York might direct. On the 18th of April, Barr & Co. made an assignment for the benefit of creditors to one Sherman. The defendant, Walker, was the superintendent of the Coffee Exchange, and upon the allegation that said Walker was about to direct said bank, pursuant to the provisions of said certificate, to pay the sums named therein, amounting in the aggregate to $53,000, to various firms, individuals, or coporations to plaintiff unknown, the plaintiff commenced this action against Barr & Co., their assignee, Walker, as superintendent of the Coffee Exchange, and the Corn Exchange Bank, to enjoin and restrain the Corn Exchange Bank from paying over or in any way parting with said sum of $53,000, and the defendant, Walker, from directing said bank to pay said sum, or any part thereof, to any firm, persons, or corporation. An injunction was issued as prayed for in the complaint, with an order to show cause embraced therein. Upon the return day of said order to show cause, Barr & Co., their assignee, the Com Exchange Bank, and Walker appeared by their respective attorneys, and, it having been made to appear to the court that said defendant, Walker, had, on and after the 14th of April, 1893, received and deposited in said bank, in all, the sum of $178,500, and had received certificates of deposit therefor, payable to said Barr & Co., which sum was received as security for the performanee by Barr & Co. of contracts between them and members of the Coffee Exchange, upon which contracts Barr & Co. had defaulted, and that by the rules and regulations of the exchange said sum of $178,500, less about $15,250, had become payable to said members, and it became the duty of the defendant to direct, and he was about to direct, said bank to pay said sum, and that by said injunction order he was prevented from making such direction, the court directed a partial dissolution of the injunction, and a modification thereof. Subsequent to this time the plaintiff and Barr & Co. and their assignee settled this action, and desired to discontinue the same. The Corn Exchange Bank and the defendant, Walker, refused their assent thereto, and a motion was made for discontinuance, which the court granted upon payment of costs, which costs have been paid. Subsequently the defendant, Walker, moved for a reference under the provisions of the undertaking given upon the injunction to ascertain the damages sustained by him by reason of the injunction, which was denied upon the ground that the discontinuance was the result of an amicable settlement between the plaintiff and the only defendants who were interested in the fund; and that the defendant, Walker, was not directly or personally interested in the fund, and was made a party only because his presence was essential to a complete adjudication as between the plaintiff and the defendants, who were thus interested, and who consented to the discontinuance, and that, therefore, the motion was controlled by the case of Palmer v. Foley, 71 N. Y., 111, and was distinguished from, the cases of Pacific Mail S. S. Co. v. Toel, 85 N. Y., 646, and Wynkoop v. Van Beuren, 63 Hun, 506; 45 St. Rep., 325.

In this conclusion we cannot concur. The injunction as it was originally issued against the bank and Walker, was so broad that it affected them in respect to their relations with others. They were compelled to retain counsel, and to procure the modification of the injunction, in order that the ordinary business in which they were engaged might be prosecuted with other persons whose money had been deposited by Walker with the bank, and this modification was made. It was not until this modification had been made that it could possibly be said that Walker was not personally interested in the result of this controversy, because he was thereby prevented from performing the functions of the position which he occupied, and from directing to be paid out money to which others were entitled. It seems to us that under these circumstances the plaintiff cannot get rid of Mr. Walker against his will without to some extent indemnifying him for the expenses which he has incurred in the procuring of the modification of this injunction, so that it would not affect others than those against whom it was issued.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concur.


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    Edward A. Morrison, App’lt, v. Metropolitan Elevated Ralway Co. et al., Resp’ts. George G. Moore, App’lt, v. Same, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Reference—Agreement.
    An oral agreement to refer a cause is not binding.
    Appeals from orders denying motions for references.'

      S. W. Dexter, for app’lts; A. 0. Townsend, for resp’ts.
   Per Curiam.

Section 1011 of the Code requires a reference to be ordered “ upon the consent of the parties, manifested by a written stipulation, signed by their attorneys, and filed with the clerk; ” and ruje 11 of the general rules of practice provides that no oral agreement entered into between the attorneys or counsel for the parties shall be binding. It is conceded that no written stipulation signed by the attorneys has been filed here, nor do we find any agreement between the parties which is evidenced by a writing sufficient to bind them. All that appears is that negotiations were pending looking towards a reference of these cases; and before the referee was selected, or the particular cases in which a reference was to be had was agreed upon, the plaintiffs terminated the negotiations by withdrawing their consent. Under these circumstances, whatever criticism might be indulged in as to their good faith in withdrawing it after a verbal understanding had been reached, it was the exercise of a legal right which should not, against their consent, be interfered with.

Our conclusion, therefore, is that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.


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    John W. Moran, Resp’t, v. Racine Wagon Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December, 15, 1893.)

    Master and servant—Negligence.
    Before an employe can recover for injuries, he must show, not only that the machinery was out of repair, hut that the master negligently suffered it to remain in that condition.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles M. Earle, for app’lt; John J. Delany, for resp’t.
   Follett, J.

This action is by an employe against his employer to recover damages for a personal injury, caused, it is alleged, by the neglect of the defendant to provide a safe elevator, and keep it in repair. The Lorillard estate is the owner of a building, completed in 1890, on lots Nos. 151 and 153, South Fifth avenue, which was leased to Frankenthal Bros., who sublet to the defendant the store floor and basement of the building, “ including the steam heat and elevator usage.” The defendant entered into possession on February 1, 1890, but the building was not fully completed until May or June following, during which months the elevator was put in by the estate for the use of the defendant. The carriage of the elevator consists of a platform about twelve feet long by six feet wide, suspended by four cables, and runs between the basement and the store floor, a distance of about nine feet. The elevator was kept in place by guides which extended from the floor of the basement to the store floor, but not above, as it was not designed to pass that floor. It is for freight, not for passenger’s ; and was operated by steam, which was furnished by Frankenthal Bros., who employed the engineer. The defendant used the first floor and basement for the storage and sale of wagons. September 29,1890, the plaintiff, who had been employed by the defendant five or six months, entered the basement for the purpose of removing a wagon. In going to the place where it was stored, he passed underneath the elevator, which fell upon him from the second floor, inflicting severe and permanent injuries. The elevator was operated by defendant’s employes, no particular person having charge of it. In the language of the plaintiff: “ Everybody ran the elevator. I did myself. I didn’t run it quite as much as anybody else. The men who worked there, Tom Considine, or any one who worked in there, they used the elevator.’’ The cause of the fall of the elevator is not clearly established by the evidence. The elevator was not inclosed in a shaft, but was open on" all sides. There is some evidence that it was so adjusted that the platform, instead of stopping, as it was designed, even with the store floor, would sometimes rise five or six inches above it, and when it came down, instead of passing through the aperture, one side or end of it would catch on the floor; and, if the connection with the power were not shut off, the drums around which the cables were wound would continue to revolve, leaving the cables slack; and if by accident or otherwise the platform of the elevator slipped from the floor, it would fall to the floor of the basement. In case the check rope was pulled in time, the elevator could be stopped at any point, and would not rise above the level of the floor. There is no evidence that the plaintiff ever discovered any defect in the construction of the elevator, or knew that it was out of repair, nor is there any evidence which tends to show that the defendant’s superintendent knew, or should have known, that the elevator was defective in design or construction or that it was out of repair. The only evidence that the elevator had ever failed to. work properly was given by John Sodan and Thomas Considine, employes of the defendant. The former was called by the plaintiff and testified:

“ Q. Did you see the elevator after it had fallen on John Moran ? A. No. I seen it falling twice before it fell on John Moran. It came near killing me. It took off the frame going down. The north side catched it, and then it went off on a slope—and if you want to check it, you were afraid,—on the northwest end, where the brake was. The check was on the northwest end. I seen it plain with my eyes. The check was in the northwest end, and it stood in a foot under the elevator on the north side, and of course you had to run under the elevator to stop it. If you didn’t you couldn’t get at it any other way. The men had to run under the elevator to stop it. You coudnt do it any othher way. The check line ran down through the platform of the elevator. You had to check it. When you were going down you pulleql down the check, and when you were going up you pulled it so (illustrating). Q. On the first occasion when you saw this elevator fall, describe how it happened. A. There were two men working there, and this elevator fell down. I was just working on carriages, over the elevator, at the same time. I ran to it, and seen it, and then Mr. Smith went and got this Mr. Pinney to print letters underneath that elevator that any man that would leave anything under that elevator, why, he would be fined or discharged.. This is all I have to say. Then the elevator fell that time in March. That was the only regulation that was made. Then it fell again in February, and I was under it at the same time, and only that I had God’s blessing I would be killed. That was in. February, 1890. I will tell you how the elevator acted when it was in operation. If it went three inches above the floor it struck on the frame, and in coming down it went off on a slope—come right down on a slope.”

Werner, who put up the elevator, testified that it was not done until May or June, 1890, so it is not probable that it was out of repair in February and March before.

Considine testified:

“ Q. Didn’t you notice that the elevator would veer from side-to side? A. Well, a little, when there was a heavy load on it. Q. And as it went up beyond the floor of the elevator it was. likely to catch on the floor? A. Well, it did catch one or twice, and they had it fixed. Q. You have seen it there? A. I didn’t see it, but I heard she was fixed. (Objected to. Stricken out.) A. No, sir. Q. But you have seen it catch on the flooring? A. No, sir; but I heard."

This evidence has no probative force, as the witness neither saw the elevator work defectively, nor did he see it repaired. He simply heard that it had caught on the floor, and that it had been fixed.. The only person about the premises who represented the defendant, or who was engaged in discharging master’s duties, was the superintendent; and there is no evidence that he was incompetent,, or that he had actual knowledge of any defect in the construction! or operation of the elevator, nor is there sufficient evidence to authorize the jury to find that he was negligent in not having discovered some defect in its operation. There is no evidence tending to show when or by whom the elevator was used before the-happening of the accident. It is urged that the fact that the elevator fell is sufficient to warrant .the jury in finding that it was. out of repair. Assume this to be so, and it would be so had there been any evidence that some co-emoloye had not been negligent, and left it without throwing off the power, which was not shown. The plaintiff was bound to prove more than that the elevator was out of repair. He was bound to show that the defendant negligently suffered it to be so; and this he utterly failed to do. An employer is not an insurer of the safety of his building. nor of the machinery, but is simply bound to exercise due care that they shall be safe; and before an employe can recover for injuries sustained he must show that the master failed to discharge his duty in this respect. Without considering the question of contributory negligence, we think the evidence insufficient to sustain the verdict, and that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


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    In the Matter of the Estate of Eunice A. Roberts, Deceased. In the Matter of Samuel C. Mott et al. In the Matter of Patrick J. Smith.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Appeal—Surrogate.
    Where the surrogate has not made, and was not requested to make, any findings or decision, and there is no exception by the appellant to any finding, or refusal to find, the appeal brings up no question for review.
    Appeal from a decree settling the accounts of the executors.

      Miller & Miller {Jacob F. Miller, of counsel), for app’lts; Parsons, Shepard & Ogden {II. B. Olosson, of counsel), for resp’t.
   Per Curiam.

A petition having been presented by one Smith to the surrogate to obtain an accounting from the executrix and executor, and the prayer of the petition having been granted, and an accounting ordered, the same was referred to a referee, among other things, to examine the account of the executors, and the objections of the petition thereto, and to hear and determine all questions arising upon the settlement of such account. Thereafter, the referee made his report, and, upon the motion to confirm the same, it was modified as to a single item of $68.10, which, by the final decree of the surrogate, was directed to be paid to the petitioner, and the account of the executors was in other-respects approved and settled. The decree, in addition, allowed the petitioner the sum of $128.87 for his costs, counsel fees and disbursements in the proceeding. Requests to find were presented to the referee, and passed upon by him, and, to his refusal to find certain of the requests presented by the petitioner, exceptions were filed. The modification of the referee’s report is to be found only in the final decree; no requests having been made or passed upon by him, and no exceptions having been filed to the modification, the appellant confining himself to a notice of appeal. In view of the small amount involved, it was of doubtful benefit, in any event, to the estate, to have the executors appeal; but, whether they are right or not in the questions sought to be presented as to the surrogate’s conclusion with respect to the $63.10, we think the point well taken by the respondent that there is-nothing before us for review, and that his statement is correct The surrogate made, and was requested to make, no findings or decision; and there is not an exception by the appellants to any findings or refusal to find either of surrogate or referee. Under these circumstances, their appeal brings up no question for review. The point has been decided over and over again. In re Sprague, 125 N. Y., 732; 35 St. Rep., 450 (by the court, Earl, J.):

“ The surrogate did not make any findings, as required by § 2545 of the Code, and the recprd does not contain any exceptions to the findings, or to the decision of the surrogate. Therefore, the general term did not have jurisdiction, on the appeal to it, to review the surrogate’s decision upon the facts, and neither has this court. If the appellant desired to bring to the general term or to this court questions of fact or of law involved in the accounting, and to review the decisions of the surrogate in reference thereto, he should have procured findings of fact and of law, and should have made proper exceptions thereto. Hewlett v. Elmer, 103 N. Y., 156, 164; 3 St. Rep., 1; In re Kellogg, 104 N. Y., 648; 5 St. Rep., 668; Angevine v. Jackson, 103 N. Y., 470; 3 St. Rep., 643.” (Decree affirmed.) In re Kellogg, 104 N. Y., 648; 5 St. Rep., 668 ; In re Marsh, 45 Hun, 108 ; 9 St. Rep., 441; In re Falls’ Estate, 10 N. Y. Supp., 41; 29 St. Rep., 759 ; In re Front’s Estate, 11 N. Y. Supp., 160; In re Moulton’s Estate, 10 N. Y. Supp., 717; 32 St. Rep., 631; Otis v. Hall, 6 St. Rep., 592; In re Peck, 14 N. Y. Supp., 899 ; 39 St. Rep., 234; In re Hood, 104 N. Y., 103, 106; 5 St. Rep., 501; Angevine v. Jackson, 103 N. Y., 470; 3 St. Rep., 643.

The appeal should, therefore, be dismissed, with ten dollars costs and disbursements to respondent.


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    Nassau Bank, App’lt, v. Joseph Campbell, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Appeal—Fobmeb.
    The law of the ease is settled upon the former appeal, where the testimony, on the second appeal does not present any different question which will render the decision then reached not controlling.
    Appeal from adjudgment dismissing the complaint.

      Aaron P. Whitehead, for app’lt; William H. Arnoux, for resp’t.
   Per Curiam.

On the 12th of April, 1886, the firm of Phyfe & Campbell made two promissory notes to the order of William Campbell, who indorsed the same. These notes, • on their face, expressed that they were what are commonly termed “stock notes,” having certain bonds deposited therewith as collateral security. After the notes were made and delivered, and without the consent of William Campbell, the bonds were stamped on their face as subordinate to a junior lien on the land, upon which there was a mortgage to secure such collateral bonds.

The law of this case was settled upon the former appeal, which is reported in Nassau Bank v. Campbell, 63 Hun, 229; 44 St. Rep., 191. Upon the new trial, counsel was asked to state wherein the proof differed from that appearing before this court upon the former appeal; and he thereupon stated that the certificates were not before the general term, and there may have been other testimony. These certificates were certificates that the notes themselves were bona fide notes, and that there was no defense to the same. But these certificates did not change the rule of law to be applied, because no question was made as to the validity of the notes, the question being as to whether the indorser of the valid notes was not discharged by the action of the holder thereof in impairing the collateral security. Upon this appeal, what other testimony there may be in the case has not been pointed out by the appellant; and upon examination we do not see that there is any testimony which would present any different question from that disposed of on the former appeal, and which would not make the decision then reached controlling. Though some of the exceptions to rulings upon the questions of evidence might be good, no advantage therefrom could be derived by the appellant, for the reason that there was sufficient competent evidence to raise one point involved, and which was controlling upon the trial judge, and justified his dismissal of the complaint.

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


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    A. J. Seasongood et al., Resp’t, v. James A. Fleming, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Pleading.—More definite and certain.
    A motion to make a complaint more definite will be granted, where the the title of the action indicates that it was brought against defendant individually, but the complaint seems to support an action against him as treasurer of a territory.
    Appeal from an order denying a motion to make the complaint more definite.

      R. F. Clarice, for app’lt; Rush Taggart, for resp’ts.
   Per Curiam.

The title of the action would indicate that it was brought to charge the defendant individually, but a reading of the allegations of the complaint would seemingly support a cause of action against either the territory of Arizona, or against the defendant as treasurer of that territory; and, as the inconsistency thus created might produce confusion and injury if the election which the plaintiffs should make were left until the trial, we think it was but right that, instead of leaving the defendant to guess in what capacity he was sue'd, the plaintiff should be compelled to make the complaint definite by a proper allegation as fo whether he intends to charge the defendant personally or officially.

The order should therefore be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.


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    Richard T. Wilson, App’lt, v. Lewiston Mill Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

      1. Contract—Statute of frauds.
    An employe of plaintiff, who transmits defendant’s bid to plaintiff, does not act as agent of defendant so as to charge the latter under the statute of frauds.
    2. Same—Lex loci contractus.
    Where an offer to buy goods was made by defendant to plaintiff’s agent in Maine, where the goods were to be delivered, the transaction is governed by the laws of that state, though the offer was accepted by plaintiff in New York.
    Appeal from a judgment entered upon a verdict directed by the court in favor of defendant.

      Treadwell Cleveland, for app’lt; JEdward B. Hill, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for a breach of an alleged contract for the purchase of cotton. The answer consisted of a general denial, a defense that the contract was void under the statute of frauds of Maine, and also that, according to the custom of the cotton trade, no contract was ever made. "Upon the trial the defendant offered evidence tending to' show that one Hawley, an employe of the plaintiff, being atLewiston, in the state of Maine, on Saturday, November 1, 1890, called at defendant’s place of business, and saw the president and treasurer of defendant, and had a conversation with them in reference to the sale of cotton to them, and they requested Hawley to communicate with his firm, and ask for an offer to sell cotton for a little later shipment than customary, the payment to come in February; and that the same day he wrote to his firm,, requesting them to send an offer to the defendant (which letter was excluded, and an exception taken to the ruling). That on Monday, November 3d, the plaintiff telegraphed the defendant, as follows:

Nov. 3, 1890.
To Lewiston Mills, Leioiston, Maine:
“We will sell five hundred Middling, and five hundred Strict Middling, January shipment, ten one half landed, based on January contracts, nine sixty-three.
“R. T. Wilson h Co.”

That Hawley, on that day, subsequent to the receipt of the telegram by the defendant, saw the president and secretary of defendant, and after some conversation they authorized him to transmit a bid to plaintiff of 10 3-8 cents ; and that the defendant gave him until Wednesday, November 5th, to accept the offer. That Hawley then wrote to the plaintiff, among other things, as follows:

“They did, however, too late in the day to telegraph you, make me a bid of 10 3-8 c. for 500 B-C Mid. and B-C Strict Mid., terms and conditions same as those mentioned in my letter of Saturday. * * * You are to reply to the Lewiston mills, Wednesday morning.”

That, on Wednesday morning, plaintiff telegraphed defendant as follows:

“ Day Message. Nov. 5, 1890.
To Lewiston Mills, Lewiston, Maine:
“ Your offer accepted. Ten three-eighths five hundred Mid-filing, and five hundred Strict Middling, January shipments, delivered Lewiston.
[Signed] "R. T. Wilson & Co.”
And also wrote the defendant a letter on the same day as follows:
“New York, Nov. 5, 1890. u Lewiston Mills Co., Lewiston, Maine:
“ Dear Sirs.—We hereby confirm our sales to you of 500 B-C Midd., land at Lewiston, January shipment, cash on arrival, at 10 3-8 per lb., and 500 B-Cotton, St. Middling, January shipment, cash on arrival, at 10 3-8 per lb. Thanking you for the order, Yours truly,
[Signed] “R. T. Wilson & Co.,
Per Walker

That on the 5th of December the defendant wrote the plaintiff as follows:

“ Lewiston, Maine, Dec. 5th, ’90. u B. T. Wilson & Co., New York:
“We find it will be impossible for us to take the 1,000 bales of cotton mentioned in yours of the 5th ult., as it is impossible to get the funds. Our payments for the next three months are all we can meet without taking any more burdens. The hope that the present stringency in the money market would cease soon, seems certain' not to be realized.
“Yours truly,
“F. W. Parker, Treas."

And that Hawley and the defendant’s officers had some conversation about arranging the matter amicably, which resulted in nothing. The plaintiff also gave evidence tending to show damage because of failure of defendant to take the cotton. The defendant offered in evidence of the statute of frauds of Maine, as follows:

“No contract for the sale of goods, wares, or merchandise for thirty dollars or more shall be valid unless the purchaser accepts and receives part of the goods, or gives something in earnest to bind the bargain or in part payment thereof, or some note or memorandum thereof is made, and signed by the party to be charged thereby, or by his agent.”

Both sides offered in evidence certain authorities of Maine relating to the statute of frauds; whereupon the court directed a verdict for defendant, which was duly excepted to, and, from the judgment thereupon entered, this appeal is taken.

The only question involved upon this appeal is whether there was a sufficient memorandum in writing to comply with the statute of frauds. It seems to us clear that, notwithstanding the testimony of Hawley that the defendant told him to transmit its bid to the plaintiff, he did not imagine for one moment that in writing •any part of the letter of November 3d he was acting as the agent of the defendant. It will be seen that he is writing about a bid that he has received as representing the plaintiff, and not making an offer as the representative of the defendant. Hawley, in his letter after telling his employers about the difficulty he had had to get any offer out of the defendant, says : “ They did, however, * * * make me a bid,” etc., clearly showing that Hawley, in transmitting this bid, was acting for his employers, and for no one else; and, therefore, Hawley’s letter of November 3d was not a sufficient memorandum or note to satisfy the statute of frauds.

It is, however, urged by the plaintiff that, even if this letter of Hawley was not a sufficient memorandum, the recognition of the contract by the letter of the defendant of December 5, 1890, together with the prior correspondence, did constitute such memorandum. In considering this question, it may, perhaps, be of some importance to determine whether the locus contractus was in Maine or New York. We think that the law of Maine must control, as the lex loci contractus almost invariably governs. The transaction in question took place in Maine, the bid was made to plaintiff's employe in Maine, and the cotton was to be delivered in Maine; and the fact that the acceptance of the plaintiff was mailed in New York could not make the contract a New York contract. It seems to be the law of Maine that in order to satisfy the statute, the memorandum must contain, within itself, or by reference to other written evidence, the name of the vendor and vendee, and all the essential terms and conditions of the contract, expressed with such reasonable certainty that all its terms may be gathered from the written evidence, without any aid from parol testimony. Williams v. Robinson, 73 Me., 186. If the telegram of November 5th, and the letter of November 5th, had contained the whole of the terms and conditions of the contract, then the reference, in defendant’s letter of December 5th, to the communication of the plaintiff of 5th ult., would have so identified those papers as to have entitled them to be read with the letter of December 5th, and thus the complete contract would have been shown by writing. But it is conceded that neither the telegram nor letter of November 5th contained the whole of defendant’s offer, and that they do not contain all the terms and conditions of the alleged contract. In order to ascertain these, we must refer to Hawley’s letters of November 1st and 3d; and these are in no way referred to in the only communication signed by the defendant, and therefore cannot be appealed to, according to the rule laid down in the case cited, to establish the contract. The case of Jenness v. Iron Co., 53 Me., 20, seems to esablish that there was no sufficient memorandum to satisfy the statute.

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Mary P. Brater, Resp’t, v. Addison F. Andrews, as Testamentary Trustee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Appeal—Interlocutoby jttogmemt.
    An appeal from a final judgment does not bring up an interlocutory judgment for review.

      Appeal from a judgment in favor of plaintiff.

      George M. Bayne, for app’lt; Francis A. Winslow, for resp’t.
   Per Curiam.

The notice of appeal was from the tinal judgment, no appeal having been taken from the interlocutory judgment. The questions sought to be raised, therefore, are not before us for review, and the judgment must be affirmed, with costs.


author: Parker, J.

text:
    William A. Baldwin, Resp’t, v. Jane E. Baldwin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Partition—Joint tenants.
    A joint tenant may sue for partition of land acquired after the enactment of § 1532 of the Code.
    Appeal from an interlocutory judgment directing the sale of the property.

      Mr. Moissen, for app’lt; James A. Donnegan, for resp’t.
   Parker, J.

This appeal brings up for review a judgment in partition of certain premises conveyed to the plaintiff and defendants as joint tenants, the deed declaring that the estate was conveyed to them “as joint tenants, and not as tenants in common.” The joint tenants other than the plaintiff deny his right to maintain an action of partition, and insisted upon the trial, and again upon this appeal, that compulsory partition of lands owned and possessed by joint tenants cannot be made; and their contention is founded on the doctrine of survivorship, which is the distinguishing incident of title by joint tenancy. That, as the whole estate or interest held in joint tenancy may pass to the last survivor, and become vested in him absolutely, there is secured to him a right to such interest as may accrue to the survivor—a right which cannot be taken away from him without his consent. A serious consideration of the appellant’s contention is embarrassed by the fact that § 1532 of the Code of Civil Procedure expressly authorizes partition of such an estate as was conveyd to these parties as joint tenants. It reads as follows:

“ Where two or more persons hold and are in possession of real property, as joint tenants, or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made without great prejudice to the owners.”

It is suggested by the appellants that a joint tenant cannot be deprived of his right of survivorship by statute. If that suggestion be seriously made, it certainly requires no other answer than that prior to the execution and delivery of the deed by which the joint tenancy in question was created a statute was enacted providing that, in case an estate of inheritance, or for life or for years, should be vested in two or more persons as joint’ tenants, any one of them may maintain partition. Thus the parties to the conveyance were apprised at the time of its making and execution that the right of survivorship would depend upon the consent of the joint tenants, and their conveyance will be deemed to have been made with reference and in subordination to this provision of the statute. The right to maintain such an action has been recently considered in Cloos v. Cloos, 55 Hun, 450; 29 St. Rep., 200. The conveyance was to the husband and wife,as joint tenants, and not as tenants in common.” The wife subsequently commenced an action of partition, and the' special term, reaching the conclusion that the action was not maintainable, dismissed the complaint This judgment the general term reversed, holding that "where husband and wife hold lands as joint tenants, an action of partition lie at the suit of either. In Jooss v. Fey, 129 N. Y., 23 ; 41 St. Rep., 211, the premises in controversy were conveyed to husband and wife as joint tenants. Subsequently the wife conveyed her interest to the plaintiff, who brought an action of partion. The court held that the interest acquired by the wife was alienable by her, and, plaintiff having acquired title through her •conveyance to him, he was entitled to maintain partition under § 1532 of the Code, quoted supra. But the authority to partition lands held by joint tenants is not by any means of modern creation, as its discussion at this time would seem to suggest. At common law it was the rule that neither joint tenants nor tenants in common could compel partition. Alin. Partit., 55.

To remedy this evil, in 1540 the statute of Henry VIH., c. 1, was enacted, providing for the partition of estates of inheritance vested in joint tenants or tenants in common; and the year following, by chapter 32, the provisions of the first act were extended so as to include estates for life for years. The precedure provided by those acts was simplified by St. 8 & 9 Vm. III., e. 31. “At the close of the Revolution, -and in 1788, the above-mentioned English statutes were re-enacted. 2 Greenl. Comp. 13. These statutes put the right to compel partition between tenants in common and joint tenants upon the same footing as coparceers.” Will. Eq. Jur., 699, 700; Kent, Comm., 6th ed. p., 364. The inadequacy and inefficiency of the statutory remedies led courts of chancery to assume jurisdiction in partition. 17 Amer. & Eng. Enc. Law, 679; Story, Eq. Jur., § 651. An investigation of the subsequent development of the subject of partition fully bears out the statement in 11 Amer. & Eng. Enc. Law, 1144, in .which the matter is accurately summed as follows:

“ Through the medium of equity, and by means of statutory enactment, the right to have partition made has become an incident to ownership in joint tenancy and tenancy in common in all the United States and in England.”

The judgment should be’affirmed, with costs.


text:
    Joseph P. Carson, Resp’t, v. New York Terminal Express Company, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed December 15, 1893.)

    Receivers.—Modification oe order.
    In the absence of proof that a creditor is entitled to perfect his judgment in preference to other creditors, or that a judgment, if perfected, will be of any avail to him. a motion by him to vacate, as to him, an order appropriating a receiver will not be granted.
    Appeal from an order modifying an order appointing a receiver.

      Alexander & Green {O. B. Alexander, of counsel); for app’lt; Frank D. ArtMir, for resp’t.
   Per Curiam.

In this action a receiver was appointed of the defendant ancillary to appointment in the state of New Jersey. An ■order was granted by the special term that all persons be enjoined :and restrained from bringing or prosecuting any suit against the •defendant, or in any manner interfering with its assets until the further order of the court. A condition was made of granting this •order that the defendant should not remove from this state any of its property. A motion was made by the respondents, D. D. Man■gam & Co., creditors of the defendant, for the vacation of this injunction so far as it affected them, which motion was granted, •without any reason therefor appearing in the affidavits upon which •the respondents moved, except the statement that the defendant was insolvent at the time it bought the goods and merchandise of the respondents, and that the directors of the defendant company knew at the time that it was insolvent. It is claimed upon the part of the respondents that the questions on this appeal resolve themselves into—First, whether the creditors (the Mangams) have any right to perfect their judgment; and, second, whether ■any further proceedings under the judgment are necessary. There was nothing in the papers upon which this order was granted to show any propriety in allowing these respondents to perfect their judgment in preference to other creditors; and there was nothing whatever in the papers to show that any proceedings under the judgment could be taken by the respondents which would be of any avail to them after the appointment of receivers. We think, therefore, that the order was improvidently granted, and should be reversed, with ten dollars costs and disbursements, and the motion ■denied, with ten dollars costs.


text:
    Edmund W. Converse et al., Resp’ts, v. Daniel E. Sickles, as Sheriff of, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Money paid, etc.—Judgment.
    Money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the judgment debtor.
    Appeal from a judgment dismissing the complaint.

      Garter, Hughes & Kellogg (Frederic JR. Kellogg, of counsel), for app’lts; Hays & Greenbaum {A. Blumenstiel, of counsel), for resp’t.
   Parker, J.

The defendant, as sheriff of the city and county of New York, about the 1st of May, 1890, took possession of the entire stock of goods then possessed by Feckheimer, Rau & Co., under executions issued against them. Such goods included certain merchandise, which the plaintiffs contend were procured from them by Feckheimer, Rau & Co., through fraud and deceit. Thereafter these plaintiffs elected to rescind the sales by reason of the alleged frauds, and commenced two replevin suits to recover them from the defendant, under which they obtained possession of the goods, and afterwards sold them. Subsequently, the actions coming on for trial, plaintiffs’ counsel stated, in his opening, that he would not be able to prove that plaintiffs had demanded possession of the goods from the sheriff before their commencement. The court held, following Goodwin v. Werthheimer, 99 N. Y., 149, that, in the absence of such proof, plaintiffs could not recover, and in each action directed the jury to find a verdict in favor of the defendant, for the return of the goods or their value. In pursuance of such direction, a judgment in each case was duly entered, execution thereon being stayed for a specified time. At the expiration of the period for which "a stay was granted, the plaintiffs, having reached the conclusion that an appeal could not be successfully prosecuted, paid to the sheriff' the amounts of the two judgments, aggregating $5,312.99, at the same time serving upon the sheriff a written protest, in which they alleged that payment was made under duress of execution and judgment, and demanded an immediate return of the sum so paid. Their demand being refused, this suit was commenced to compel restitution; the grounds assigned as a basis for the recovery being that, the goods having been obtained from them by fraud and deceit, they were entitled to their return from Feckheimer, Rau & Go., or the sheriff, and, inasmuch as the goods had been disposed of, the plaintiffs assert the right to-charge the sheriff, as trustee of the money in his hands, representing the goods.

The trial resulted, as we think correctly, in a dismissal of th& complaint upon the merits. The general rule is that money paid in satisfaction of a legal judgment cannot be recovered back, though not justly due from the defendant. Insurance Co. v. Robinson,, 82 Pa. St., 357-359 ; Insurance Co. v. Heath, 95 id., 333-340 ; 6 Amer. & Eng. Enc. Law, 75, and cases cited. An exception to-the rule is where the money is paid in-satisfaction of an erroneous, judgment, which is subsequently reversed or set aside. In such case the money paid may be recovered back. Scholey v. Halsey, 72 N. Y., 578 ; Peyser v. Mayor, etc., 70 id., 497; Insurance Co. v. Heath, supra. And it is not necessary in order to maintain the-action, that the payment should have been coerced by execution; it is sufficient if paid after judgment. Lott v. Swezey, 29 Barb., 87; Scholey v. Halsey, supra; Peyser v. Mayor, etc., supra. The-cases cited by the appellants are not in conflict with the. rule asserted. Aside from those already referred to, they call attention to Bank of Commonwealth v. Mayor, etc., 43 N. Y., 188: Phelps v. Mayor, etc., 112 id., 216; 20 St. Rep., 238; and Vaughn v. Village of Port Chester, 32 N. E., 137; 23 St. Rep., 994. In Bank of the Commonwealth v. Mayor, etc., a municipal corporation collected a tax from the plaintiff, which was unlawfully assessed; and, the assessment being subsequently annulled, in proceedings taken for that purpose, it was held that the corporation was bound to refund the money which it had unlawfully collected. In Phelps v. Mayor, etc., the right to recover the money paid on a void assessment was denied, on the ground that the ordinance was on its face illegal and void, and payment without coercion of assessment was therefore a mistake of law, furnishing no basis for a recovery In Vaughn's case the assessment was invalid, and, the trustees of the municipality having passed a resolution for an advertisement and sale of all property upon which the assessment had not been collected, Vaughn offered to deposit sufficient money to abide the result of a test suit as to the validity of the assessment. His offer being denied, he paid the amount under protest. Subsequently, the assessment was adjudged illegal, and the court held that the payment was made under such coercion of law as would permit a recovery back of the moneys. In the case under consideration the judgment was legally rendered. Ho effort was made to reverse it on appeal, nor was it attacked by a motion to set it aside. The money paid was therefore in satisfaction of a valid judgment, and, under the rule established by the cases no which we have referred, there can be no recovery by the plaintiffs of the sum so paid.

The judgment should be affirmed, with costs.

All concur.


text:
    William E. Demarest, App’lt, v. Mayor, etc., of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Officer—Salary.
    Where an intruder into a public office discharges its duties and receives the compensation, the duly elected officer cannot recover the salary from the municipality.
    Appeal from a judgment dismissing the complaint on the the pleadings and opening.

      George G. Mdridge (George W. Miller and Seaman Miller, of counsel), for app’lt; William H. Clark, Corp. counsel {W. A. Sweetser, of counsel), for resp’t.
   Follett, J.

Section 3 of article 2 of chapter 137 of the Laws of 1870 provided: “ Sec. 3. The board of aldermen shall consist of fifteen members to be elected upon a general ticket from the city at large.” The sixth section of the act provided that subsequent to 1870 the aldermen should be elected at the general election held in Hovember of every year thereafter Pursuant to this section the plaintiff and fourteen others became candidates for the office of aldermen at the general election held Hovember 7, 1876, and received a majority of all the votes cast for candidates for such offices created by chapter 137 of the Laws of 1870. They took and filed an official oath, and on the first Monday of January following met and assumed to organize as a board, and expressed their willingness to discharge the duties of the office. It does not appear that any certificate of their election was made or filed by the board of canvassers. It is asserted that they were legally elected aldermen of the city, and were entitled to hold the office from the first Monday of January, 1877, to the first Monday of January, 1879, and were entitled to the salary provided by law, for the recovery of which salary for the first year this action was brought.

By § 119 of chapter 335 of the Laws of 1873, chapter 137 of the Laws of 1870 was expressly repealed, and the number of aider-men increased from fifteen to twenty-one, and a new mode for their election prescribed. This act was amended by chapter 757 of the Laws of 1873, and again by chapter 515 of the Laws of 1874, by which it was provided:

. “ Sec. 4. The board of aldermen now in office shall hold office until the first Monday in January, in the year eighteen hundred and seventy-five, the same being the term for which they were elected. There shall be twenty-two aldermen elected at the general state election which shall occur in the year eighteen hundred and seventy-four, three of whom shall be elected in each senate district, except the eighth senate district, and shall be residents of the district in which they are elected, but no voter shall vote for more than two of said aldermen. In the territory comprised within the eighth senate district, and the twenty-third and twenty-fourth wards, there shall be elected four aldermen, and the aldermen to be elected in said district may reside either in said eighth senate district or in the twenty-third and twenty-fourth wards, but no voter shall vote for more than three of said aldermen. There shall also be elected six aldermen at large to be voted for on a separate ballot, but no voter shall vote for more than four of the said aldermen at large, and the voters of the twenty-third and twenty-fourth wards of said city are hereby authorized and empowered to vote for aldermen at large. The members of the board of aldermen shall hold office for the space of one year, and shall take office on the first. Monday in January, next succeeding their election, at noon. Annually thereafter, at the general state election, there shall be elected a full board of aldermen as herein-before provided.”

■ At the general election held in November, 1876, and 1877, aldermen were elected under the section quoted, who discharged the duties of the office, and received the salaries provided by law. It is asserted that chapter 335 of the Laws of 1873 and the two amendatory acts violated § 1 of art. 2, of the constitution, which provides, “Every male citizen * * * shall be entitled to vote * * * for all officers that now are, or, hereafter may be, elected by the people.” The view which we take of the case renders it unnecessary to consider the constitutional question; or, assuming that § 4, above quoted, is unconstitutional, it is unnecessary to consider the effect of the repealing clause contained in § 119, chap. 335, Laws 1873. The last question would not seem to be quite the same as the one considered in People v. Tiphaine, 3 Parker, Crim., 241; Devoy v. Mayor, etc., 35 Barb., 264; and in Harbeck v. Mayor, etc., 10 Bosw., 336—which arose under unconstitutional statutes repealing all acts inconsistent with them. Chapter 335, Laws 1873, contained many provisions, most of which are confessedly unconstitutional, and by it the act of 1870 was repealed, mot by implication, nor by general term, but expressly. Conceding that chapter 335 of the Laws of 1873 and the two amendatory acts are unconstitutional, and that the repealing clause therein is not effective, the plaintiff is not entitled to recover the salaries provided for persons holding the office of aldermen. The plaintiff and his assignors, though ready and willing to discharge the duties of the office, did not actually perform those duties which were discharged by others under color of legal right, who have been paid by the defendant the salaries attached to the office. During the entire term of the offices to which the plaintiff and his assignors claim to have been elected they took no steps to establish their title to them, but permitted others to perform the functions of the offices and receive the salary which they now seek to recover from the city. This they cannot do. In case a person legally elected to a public office is prevented by another, under color of legal right, from enjoying it, and the intruder discharges its duties, and is paid the compensation provided for the service, the person so elected and excluded cannot recover the salary attached to the office from the municipality by which it is payable. In Dolan v. Mayor, etc., 68 N. Y., 274, it was held that payment to a de facto officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary, brought after he has acquired possession. The same rule was held in the later case of Mc Veany v. Mayor, etc., 80 N. Y., 185, and in the earlier case of" Smith v. Mayor, etc., 37 N. Y., 518. The case of Devoy v. Mayor, etc., 36 N. Y., 449, is in harmony with the other cases cited. In that case the plaintiff was the actual incumbent of the office, and discharged its duties during the time for which he recovered the salary against the city. See, also, Throop, Pub. Off., § 13 ; Dill. Mun. Corp. 4th ed., § 235, note; Beach, Pub. Corp., § 199. Without considering the other questions discussed, we think the judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    James H. Ferguson et al., as Surviving Partners, etc., Resp’t, v. George H. Gill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Appeal—Discretion.
    Where the trial court has not abused its discretion, an order setting aside a verdict on the ground that it was not supported by the evidence, will not be disturbed on appeal.
    3. Corporations—Trustees.
    In an action to charge a trustee for corporate debts on the ground that he had signed a false certificate, evidence of plaintiff’s knowledge that the whole stock was to be issued in payment for property of slight value, is immaterial.
    3. Appeal—Right decision.
    A right decision will stand whether all the reasons are, or are not, given.

      Appeal from an order setting aside a verdict in favor of defendant and granting a new trial.

      Charles E Eushmore, for app’lt; Benjamin Estes, for resp’ts.
   O’Brien, J.

This action was brought to . enforce a liability against the defendant for certain debts ef a corporation organized under the manufacturing act (Laws 1848), on the ground that he, being a trustee of that company, joined in the making and filing of a false certificate that the capital stock of the company had been paid in. The trial resulted in a verdict for the defendant, and thereupon the plaintiffs moved the trial court, on the minutes, to set aside the verdict and grant a new trial, on the ground that it was against the evidence, and on the ground of rulings made upon the trial, and upon all the grounds mentioned in § 999 of the Code of Civil Procedure. The motion was granted, and it is from the order granting such motion that the defendant appeals. .

In the memorandum filed by the learned judge, he says, “ I am of the opinion that the verdict rendered by the jury was contrary to the evidence.” The liability sought to be enforced was predicated upon the fifteenth section of the manufacturing act of 1848, which reads as follows:

“ If any certificate or report made or public notice given by the officers of any such company in pusuance of the provisions of this act should be false in any material representation, all the officers who shall have signed the same knowing it to be false shall be jointly and severally liable for all the debts of the company contracted while they are stockholders or officers thereof.”

It will thus be seen that the burden was placed upon the plaintiffs of establishing two things : First, that the certificate filed was, in point of fact, false; and, second, that with the knowledge of its falsity, the defendant signed it. Upon an examination of the evidence, we think that a preponderance thereof inclined to the view that the burden upon the first question, as to the certificate being false in point of fact, was -sustained.

Upon the second question, as to whether the defendant knowingly signed it, there was an undoubted conflict of evidence, and neither side took exception to the presentation by the court of this question to the jury. Subsequent to the rendition of the verdict, and upon consideration, the trial judge, as shown by the memorandum, reached the conclusion that the verdict of the defendant was contrary to the weight of evidence, and upon this ground granted the motion. In passing upon a motion of this character, it must be remembered that the trial judge has had the advantage of seeing the witnesses, hearing their testimony, noting their manner, and of becoming impressed with the weight to be attached to evidence offered, which it is impossible to have photographed upon the record on appeal; and in a case where he becomes impressed with the preponderance in favor of either side, or thinks that injustice has been done by the verdict, it is a proper exercise of the power vested in him to set aside such verdict. We are unable to see that the power thus vested in the trial judge has, in this instance, been abused.

But, apart from the ground upon which he placed his decision, we think that there are other reasons, which are available upon appeal, though not referred to in the memorandum of the trial judge in granting the motion, which would have justified the disposition made. The most, we think, that could be claimed by the defendant upon this question of the known falsity of the certificate, is that, upon the evidence, it was a close one; and the effect of immaterial or incompetent evidence cannot be overlooked because it is difficult to determine what effect such testimony may have had on the minds of the jurors. Thus, in this case, against the objection and over the exception of the plaintiffs, considerable testimony was admitted tending to show that one of the plaintiffs, Ferguson, was cognizant of the steps leading up to the formation of the corporation; that he had knowledge of the way in which it was proposed to issue the stock, and of the slight value of the patent, in payment for which the entire capital stock of $100,000 was issued. That the plaintiffs, or either of them, aided or abetted in the plan by which the entire capital stock was issued for the letters patent, is not claimed; and, in the absence of such a contention or issue, we fail to see how their knowledge of what was done by the corporation, or of the value of the patent can affect the question of whether or not the defendant knowingly signed the false certificate. We think that such evidence was both incompetent and immaterial, and no doubt tended to prejudice the plaintiffs with the jury. There are other rulings to which exceptions were taken by plaintiffs, equally good, but we think sufficient has been said to show that, where there are other reasons than those assigned by the trial judge for setting aside a verdict, these must be given due weight, upon an appeal such as this; the rule being that a right decision should stand, whether all the reasons be assigned or not Marvin v. Universal L. Insurance Co., 85 N. Y., 278, 284. The order should be affirmed, with costs and disbursements.

All concur.