text:
    Thomas A. H. Hay et al., as Survivor, etc., Resp’ts, v. Jacob Jackele et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Bills and notes—Bona fide holder.
    Where a person takes a note before maturity and pays full value therefor, and there is no evidence of actual notice of bad faith on his part, and no suspicious circumstances as to his bona 'fides in purchasing the note, there is no error in the court’s holding as matter of law that such person was a bona fide holder of the note.
    2, Same—Accommodation paper—Diversion.
    Where commercial paper is given to enable a payee to get the money at a particular bank, and he procures "it to be discounted at another bank, it does not constitute a diversion of such paper.
    Appeal from a judgment entered on a verdict in favor of plaintiffs.

      Myron H. Glark, for app’lts; Henry B. Loveland, for resp’ts.
   Davy, J.

This action was brought upon a promissory note dated June 5, 1891, made by the defendant Jackele, to the order of A. 0. Briggs, for $550, payable two months after date at the American Exchange Bank, Buffalo, H. Y. The note was indorsed by the defendants A. C. Briggs and J. H. Buck, and delivered to the plaintiffs before maturity. It was given at the request of Gr. D. Briggs, who was the agent of his wife, A. C. Briggs, and was solely for her accommodation.

The defendant Jackele contends that the time the note was given Gr. D. Briggs agreed to have it discounted at' the Farmer’s & Mechanics’ Bank, in Buffalo, where he had, or claimed to have securities, and that he also agreed to take care of it when it became due. It appears that the note was not discounted at the bank, but was sent to the defendant Buck, .who sent it to the plaintiffs, with a request that they discount it and send him $400 in money and apply the balance on his account. The plaintiffs discounted the note, as requested, and sent over $300 to Buck, in cash, and credited him with the balance. The note was not paid at maturity, but was duly protested for nonpayment. On the 8th day of December, 1891, a new note was given by the defendant. A. 0. Briggs, payable to the order of J. H. Buck, for $550, which was delivered to the plaintiffs. The defendant Jackele claimed upon the trial that the new note of December 8th was given in payment of the first note. This was denied by the plaintiffs, who contend that it was taken as additional security for the unsecured accounts. The learned judge at the trial held, as matter of law, that the plaintiffs were bona fide holders of the first note, and were entitled to recover thereon, nnless the second note was given in payment or as collateral security for the first note.

It is now nrged by the appellants that the court erred in holding as a matter of law that the plaintiffs were bona fide holders of the first note. It appears from the evidence that the plaintiffs took the note before maturity and paid full value therefor. These facts are not disputed, and there is no evidence in the case that would raise even a suspicion that they purchased the note in bad faith. The defendant Buck, about the 14t,h of June, mailed a letter, with the note inclosed, to the plaintiffs, requesting them to discount it and" send to him their check for $400, and to apply the balance, $150, on his account. Buck was owing the plaintiffs at that time $2,250. He wanted more goods, and the understanding and agreement between them was that if he would furnish the plaintiffs with good securities or notes they would continue their line of credit. This arrangement was made in May, before the plaintiffs received the note in question, and in pursuance of that agreement, they continued to send him goods. No suspicions circumstances were connected with this transaction that can be discovered from the evidence. The business was done in the ordinary and usual way of transacting business among merchants. In the case of Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 201; 33 St. Rep. 369, the court held that:

“The payment of value for negotiable paper is a circumstance to be taken into account with other facts, in determining the question of bona fides of the transaction, and, when full value is paid, is entitled to great weight. But that fact is never conclusive, except in the absence of evidence tending to show notice or bad faith.”

The defendant offered no evidence showing actual notice or bad faith on the part of the plaintiff, and there were no suspicious circumstances as to the bona fides of the plaintiffs in purchasing the note. Therefore the learned judge committed no error in not submitting that question to the jury.

The learned counsel for the appellants also contends that, while the defendant gave the note and intended that it should be a negotiable promissory note, yet, .on account of the agreement with Briggs that it was to be discounted at the Farmers’ & Mechanics’ Bank, in Buffalo, it lost its negotiability, and the failure to get it discounted at that bank was a fraudulent diversion of the note, and therefore the plaintiff cannot recover. I think it is very doubtful whether the defendant Jackele ever gave his note relying upon Briggs’ representations. The note was made payable at the American Exchange Bank, and not at the Farmers’ & Mechanics’ Bank. There can be no question but that the defendant Jackele gave his note to Mrs. Briggs to enable her to raise money on it and to use it as she saw fit. What difference, then, did it make to him who discounted the note ? How was he injured in any respect because the note was not discounted at the Farmers’ & Mechanics’ Bank? His injury arose from the fact that the note was not paid, and that fact is no evidence that Briggs did not have securities in the bank at the time that he made the representations, or that he did not intend to pay the note at maturity. The elementary writers, in discussing the subject in reference to the diversion of commercial paper, all agree that where such paper is given to enable a payee to get the money at a particular bank, and he procured it to be discounted at another bank, it did not constitute a diversion of the paper for which it was given. Daniel, in his work on Negotiable Instruments (section 782), lays down the rule in reference to what amounts to a diversion of accommodation paper. He says:

“ In order to constitute a misappropriation, there must be a fraudulent diversion from the original object and design; and it is now well settled that where a note is indorsed for the accommodation of the maker, to be discounted at a particular bank, it is no fraudulent misappropriation of the note if it is discounted at another bank, or used in payment of a debt or otherwise for the credit of the maker. If the note has effected the substantial purpose for which it was designed by the parties, an accommodation maker or indorser cannot object that the accommodation was not effected in the precise manner contemplated.” Schepp v. Carpenter, 51 N. Y. 602; Bigelow, Bills & N. 456.

It was held in Brooks v. Hey, 23 Hun, 372, that:

“When a note is made for the general accommodation of the payee, and no restrictions are placed upon him as to its use, he may use it in any way which seems beneficial to him, provided it is not negotiated usuriously ; and his failure to apply the proceeds according to the previous agreement with the maker constitutes no defense to the latter in an action brought against him thereon.”

The learned judge says:

“ The failure on the part of a payee of an accommodation note to appropriate the proceeds according to a previous agreement is no defense for the accommodation maker; otherwise there could be no recovery on an accommodation note.” Bank v. Comstock, 55 N. Y. 24.

We m ust therefore hold that the note in question was not diverted from the purpose for which it was given. The plaintiffs,having taken it in good faith before maturity in the usual course of business, and having paid full value for it, must be regarded as bona fide holders thereof.

It follows, therefore, that the judgment appealed from should be affirmed, with costs against the defendant Jackele.

All concur. Judgment affirmed.


source: Caselaw Access Project

author: MoAdam, J.

license: Public Domain

text:
    George Lewis Prentiss, as Guardian, etc., Resp’t, v. Ellen Bowden, App’lt.

      (New York Superior Court, General Term,

      Filed October 24, 1895.)

    Appeal—Waiver of right.
    The entry and satisfaction of a judgment for costs are a waiver of the right to appeal from any part of such judgment.
    Motion by plaintiff to dismiss the appeal.

      G. F. Bently and W. B. Wilder, for motion; B. Patterson, opposed.
   MoAdam, J.

—Upon filing the remittitur from the court of appeals the question arose whether the defendant—the party finally successful — was entitled to costs in that or all the courts. The special term judge decided that as the suit was in equity, and no costs had been awarded by the trial judge, the prevailing party was entitled to the costs of the court of final resort, and to thpse alone. The defendant acted upon the order, and entered judgment for such costs, aggregating $116.23, which were paid, and about the same time appealed from so much of the order as denied her the costs of the court below. The plaintiff now moves to dismiss the appeal upon the ground that by the entry of the judgment, and its satisfaction, the defendant waived the right to appeal from the order directing the entry of the judgment. The judgment to be entered on the remittitur was, in its nature, final —one from which no appeal could be taken—for it directed judgment absolute against the plaintiff on his stipulation; and the costs to which the defendant was entitled were those recoverable only upon such a judgment. When the defendant entered that judgment, she concluded herself by it; her power to appeal from or enlarge it was gone; and its satisfaction discharged all obligations which could flow from it. The appeal taken by defendant from the order as to the amount of costs to which she was entitled is inconsistent with the entry of such judgment; for, if part of the order which was appealed from were reversed, she could not enter another judgment for the costs which she claims were wrongfully disallowed. Such costs would not be interlocutory, but those which follow a final judgment, go into the judgment, and form an indivisible portion of- it. An order granting an extra allowance must therefore be made before judgment, “ for the costs enter into and form part thereof.” ' Clarke v. City of Rochester, 34 N. Y., at page 356. A judgment is “the final determination of the rights of parties in the action.” Code, § 1200. And see Patten v. Still, 50 N. Y. 591; In re Braiser, 2 How. Prac. (N. S.) 154; Wilkin v. Raplee, 52 N. Y. 248 ; Smith v. Dittenhoefer, 1 City Ct. R. 143. There can be but one judgment in the action. Canfield v. Gaylord, 12 Wend. 236; Johnson v. Farrell, 10 Abb. Prac. 384; National Board of Underwriters v. National Bank of the Republic of New York, 146 N. Y. 64; 65 St. Rep. 755, and that the one authorized by the remittitur. Macgregor v. Buell, 17 Abb. Prac. 31. In some cases the judgment contains several provisions. Here there was but one. The defendant had the undoubted right to appeal from any part of the order; but, if she expected to obtain thereby a more favorable allowance of costs, she should have refrained from entering judgment until the question of costs had been finally determined, to the end that all to which she was entitled might form part of it, once for all time. She could not enter more than one judgment on the remittitur. There is no accommodating practice which permits the entry of such judgments on the installment plan. There was but one subject before the court below, and- that was the amount of costs which the defendant- was entitled under the remittitur. It was not a question involving independent causes of action, or disconnected rights. There could be but one bill of costs taxed under the remittitur, and the fact tnnt items were claimed in the several courts, or on different appeals, did not divide the matter into so many distinct controversies, involving the right to as many independent appeals. On the contrary, the relief sought by the appeal is predicated upon, and indissolubly connected with, that which had been already awarded and enforced. Bennett v. Van Syckel, 18 N. Y. 481; Genet v. Davenport, 59 id. 648. In short, the acts of the defendant were not the assertion of concurrent rights, but were so inconsistent that the election to assert the one amounts in law to a renunciation and waiver of the other. See Baylies, Mew Trials, 18, 19. The cases relied on by the defendant relate to . independent causes of action, or grounds for relief, and are inapplicable. It follows that the plaintiff’s motion must be granted, .and the appeal dismissed, with costs.


author: Ward, J.

text:
    The People ex rel. Hoffman v. Rupp et al.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    'Givn, service law—Mandamus.
    Under section 1, chapter 16 of 1894, the appointment of a veteran to an office to which he is entitled to preference, may he compelled by mandamus, though another person has been appointed and is in possession of the office.
    George> W. Cothran, for app’lt; Frank C. Laughlin, for appellees.
   Ward, J.

(dissenting).—It became the duty of the respondents, the board of police of the city of Buffalo, to appoint an assistant sealer of weights and measures for said city. The salary of an assistant is $1,000 a year. The duties of such officer are to test all scales and measures used for the sale or weighing of commodities within the city, and to collect fees therefor, and to report all violations of the ordinance on the subject to the law department of the city for prosecution. While a vacancy existed in that office, the relator, Charles 'Hoffman, a resident of said city, presented a written application to the police board for the position of assistant sealer, stating that he was fifty-one years of age, a resident of the city, by occupation a grocer, and that he served in the war of the Rebellion from August 26, 1864, until the close of the war, and for which service he held an honorable discharge j that he made his application under chapter 717, Laws M. Y. 1894. The board of police considered this application with others, took proof upon the subject and as to the duties of these officers, and the proof discloses that the -application of the relator was true in fact, and no substantial objection appeared as to his competency and ability to discharge the duties of the office. On the 12th of December, 1894, the respondent appointed Adolph Karl and ‘Charles Hannafelt assistant sealers "to fill said vacancies, and refused to appoint the relator, and on the 31st of December this court, upon the petition of the relator, granted an alternative mandamus requiring the board to appoint the relator to the office of assistant sealer, or show cause to the contrary at a special term of the court on the 21st of January, 1895. The board made return to this writ, and the court, at special term, made findings of fact establishing such vacancies in the office of assistant sealer, the appointment of the persons named above, and proceeds as follows :

“ That the relator, Charles Hoffman, was a volunteer soldier in the army of the United States of America in the war for the suppression of the Rebellion, and was honorably • discharged therefrom. That said relator applied for appointment to the office of assistant sealer, and his application, setting forth his military service and honorable discharge therefrom, was duly presented to said board of police. The said relator was competent to fill the-duties of said office of assistant sealer, and he was the only honorably discharged soldier who applied for either of such vacancies. That said appointees (Karl and Hennafelt) each possessed qualifications for the fulfillment of the duties of such office superior to those possessed by said relator, and each- was better fitted to discharge the duties thereof than said relator; and such superior fitness was the impelling motive and inducement for their selection by said defendant board in preference to appointment of relator.”

The court-found as a conclusion of law that the alternative writ, of mandamus was not the proper remedy to test the disputed right of relator. He therefore dismissed the proceedings, and judgment was entered accordingly, and the exception to this conclusion brings the'matter before us.

_ The learned judge at special term has favored us with an opinion which indicates that in dismissing the writ he relied upon People ex rel. v. Wren, 133 N. Y. 569 ; 44 St. Rep. 503, and cases there cited, which seemed to hold that the proper remedy in testing the right to an office was quo warranta. In the case cited the relator had been appointed cleric of the police court in the Third judicial district of Brooklyn, and, after serving some years, was removed in 1889. The clerk was an honorably discharged soldier, and complained that he had been removed without cause, and took a writ of mandamus to be reinstated. The trial court rightly held that the provision of law under which the clerk claimed the preference as g soldier did not apply to a clerkship in a police court in Brooklyn, and dismissed the writ. The clerk appealed to the court of appeals, and that court disposed of the case upon the ground that the mandamus would not lie. That decision was made in April, 1892. An important change in the law governing this case was made in 1894, two years after the decission referred to. That decision was made under chapter 312, Laws 1884, as amended by chapter 464, Laws 1887. By those acts, in every public department of the state and of the cities, towns, and villages, and in noncompetitive examination under the civil service laws, honorably discharged soldiers and sailors should be preferred for appointment and employment. And the statute of 1884, section 4, premises this preference to the soldier with the statement that it is done “ in grateful recognition of the services, sacrifices, and sufferings of persons who served in the army or navy of the United States in the late war, and have been honorably discharged therefrom.” No remedy for any violation of this right of the soldiers is given by either of the acts in force in 1892, but by chapter 716, Laws 1894, which took effect May 19th of that year, the legislature amended chapted 312, Laws 1884, as amended by chapter 464, Laws 1887, as follows:

“ Section 1. In every public department, and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties involved. And in all cases of such * * * refusal to allow the preference provided for in this act of and for any honorably discharged Union soldier or sailor, or marine, for partisan, political, personal or other cause, except incompetency zand conduct inconsistent with the position so held, such soldier, sailor or marine, so wrongfully * -s * , refused such preference shall have a right of action in any court of competent jurisdiction for the damages as for an act wrongfully done, in addition to the existing right of mandamus; the burden of the proving such incompetency and inconsistent conduct, as a question of fact shall be upon the defendant.”

The clear intent of the statute last quoted was to confer upon the soldier the right to resort to the remedy by mandamus to correct immediately the wrong of refusing him the office which the statute gave him, with the- right also to proceed by the more deliberate course of action in the proper court for such damages as-he had sustained by the wrongful act. While it would have been better to have said that the soldier should have the right to the remedy by mandamus instead of “ in addition to the existing right,” yet when we consider the purposes of the statute, and the condition that created it, the legislative intent becomes clearly indicated, though awkwardly expressed. The statement of the existing right of mandamus is equivalent to a declaration conferring such right. If this is not the true construction, the statement as to the remedy by mandamus is senseless. Effect will be given to every part of a statute except such parts as are utterly repugnant to the. other portions of the statute and to the purpose of it. The legislature undoubtedly had in view People ex rel. Wren v. Goetling, supra, and gave the soldier this remedy by mandamus to do away with the effect of that decision, and not require him to resort to the long and expensive action of quo warranta.

The apprehension of the learned counsel for the respondent that the appointees to the office would not have their day in court, not being parties to the mandamus proceedings by name, and therefore injustice might result to them, is without foundation. When these appointments were made, they were in violation of law by a board charged with public duties. At least one of these appointees took his office clouded bv this inherent vice, and he was liable to be deprived of it in a proper proceeding against the power appointing him. He had no vested right to the office thus coming to him through a violation of law. In disposing of the question as to the right of a soldier to the preference, the police board was the only necessary party. The' only remedy sought was the correction of the illegal act of the appointing power, and the board, for all the purposes of that proceeding, represented its appointees, Hardly a proceeding by mandamus against a public body or officer has oepurred or can be conceived where the rights of persons interested are or may not be affected who are not named in the proceeding. At all event, the legislature has given the soldier, in the respect we aré considering the right to the writ of mandamus; and the power has been constitutionally' conferred, and we,must administer the law as we find it.

The legislature, in many statutes, has indicated its determination to give the veterans of the late wars preference to appointive offices, and that has become the settled policy of this state. A struggle has been going on in the courts in consequence of the desire to make partisan appointments, and the result has been to a great extent to nullify or evade the laws upon the subject. The last statute cited indicates an unmistakable determination to enforce this preference in favor of the soldiers. It condemns their exclusion for “partisan, political or personal” reasons. It. tenderly declares that age, loss of limb, or other physical impairment which does not incapacitate shall not be deemed to disqualify, and it concludes with the sweeping statement that the “ burden of proving incompetency ” shall be upon the defendant; so that, when the scarred and maimed veteran with his honorable discharge presents himself to the appointing power, though -his hair is gray, and his wrinkles deep with coming age, he is presumed to be competent for the place, and must have it; and, if he is refused, the 'defendant must establish his incompetency, or'its action will be overruled. There is no discretion left in the appointing power unless if can establish the incompetency. The statute is mandatory. When the statutory standard of competency is reached, the preferred candidate takes the office. It is of no consequence that others not preferred have superior qualifications. The appointing power cannot indulge in speculations as to comparative merit above that standard. If they are allowed to do this, it will be easy to evade the statute, and make partisan appointments. The court does not assume that partisan appointments were made or intended to be made in this particular case, but we wish to emphasize our position in this regard for the general good. '

Turning to the facts in this ease, we find that the respondents do not dispute the competency of this soldier to discharge the duties of this office. The court below, on the contrary, finds that he is competent, as we have seen; but that court and the respondents do say that the appointees would better discharge the duties of the office than the relator, and that is all. By chapter 717, Laws 1894, the civil service laws and rules do not apply to soldiers whose compensation does not exceed four dollars per day. This relieves the appellant from a civil service examination as prerequisite to an appointment.

These views lead to the conclusion"that the judgment, herein should be reversed, and a new trial had, with costs to abide event.


author: Beekman, J.

text:
    The People ex rel. John H. Conway, Pl’ff, v. Edward P. Barker et al., as Board of Commissioners, etc. Def’ts.

      (Supreme Court, New York Special Term,

      Filed November, 1895.)

    1. Civil service laws—Deputy tax commissioner.
    The word “deputy” in the proviso in section 1, chapter 119 of 1888, as amended by chapter 577 of 1892, applies only to a deputy having a confidential relation to the appointing officer and to whom under certain circumstances the powers and duties of such officer may be delegated, but does not apply to a deputy tax commissioner appointed under section 813 of the consolidation act of 1882, and said commissioner cannot be removed except for cause after hearing had,
    2. Same—Removal—Notice.
    "Where the removal of such deputy is made or attempted to be made on the ground of incompetency, he is entitled to a reasonable notice of the delinquency with which he is charged, and of the time and place where the hearing will be accorded.
    Application for mandamus to compel the board of commissioners of taxes and assessments of the city of New York to restore relator to the position of deputy tax commissioner.

      Edward Browne, for relator; Francis M. Scott, Corp. Counsel {James M. Ward, of counsel), for resp’ts.
   Beekman, J.

In the month of July, 1893, the relator was appointed to the position of deputy tax commissioner in the department of taxes and assessments of the city of New York. He entered upon the performance of his duties as such, and continued in his office until the 1st day of August, 1895, when he was removed by the commissioners, no charges against him having been "preferred, and no hearing having been afforded him in respect to the cause of the removal. The facts of the case are entirely undisputed. It appears on or about the 23d day of J uly, 1895, the commissioners of taxes and assessments requested the relator to resign his position, which he declined to do. Again, on the 1st day of August, 1895, the relator was present by invitation at a meeting of the board, at which he was again requested to resign, which he refused to do, stating that there was no reason why °he should resign ; that he had faithfully performed the duties which had been assigned to him; that he was a veteran of the late war, and as such was entitled to the protection of the law from wrongful removal. In response to this, the president of the board stated to relator that, if he did not resign, charges of imcompetency would be preferred against him, to which the latter replied that any such charges would be without foundation; whereupon he was removfed by the commissioners, and on the following day received a written notice, signed by the secretary of the board, stating that at said meeting he had been removed by the board from the position of deputy tax commissioner. It also appears that the relator’s claim that he was a veteran of the late war was well founded. He enlisted in the United States naval service on October 21, 1862, and was discharged on the 31st day of December, 1863. It also appears that he joined the voltmeter fire department in the city of New York in the spring of 1864, and was in the service of the same until it was abolished by law.

He now moves for a premptory writ of mandamus to compel the respondents to restore him to his position as deputy tax commissioner, predicating his motion upon section 1 of chapter 119 of the Laws of 1888, as amended by chapter 577 of the Laws of 1892, which reads as follows:

“ Section 1. No person holding a position by appointment in any city or county of this state or who may hereafter be appointed, receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honestly discharged soldier or marine, having served as such in the Union army or navy during the war of the Rebellion or the Mexican war and who shall not have served in the Confederate army or navy, or who shall have served the time required by law in the volunteer fire department of any city, town or village in the state, or who shall have been a member thereof at the time of the disbandment of said volunteer department, shall be removed from such position except for cause shown after a hearing had; but this provision shall not be construed- to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer.”

It is therefore perfectly plain that, unless the relator comes within the exception expressed in the statute, his right to reinstatement is clear. The counsel for respondents, however, contends that he does not come within the proviso which expressly excepts deputies from the operation of the act, for the reason that the statute which creates the office or position which was held by the relator prescribes that the incumbent shall bear the title of deputy tax commissioner. This contention, however, proceeds upon too narrow a construction of the statute. The court is not tied down to a literal interpretation, but has a right to inquire into the reason for the enactment, and to consider the purpose which the legislature sought to accomplish ; and, when this is revealed, the living principle of the law is discovered, and an unerring guide is found for its correct application.

The rule is well stated in People v. Lacombe, 99 N. Y. 43. It is there said, at page 49 of the opinion (99 N. Y.):

“ In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is" not always to be adhered to, and, where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation; and, if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the lawmakers. ”

We are therefore at liberty to consider a deputy tax commissioner, although a “deputy” so styled, is still deputy within the meaning of the veteran law, and therefore excepted from the benefits of the act under which the relator claims reinstatement. A “deputy ” is defined by Webster to be “one appointed as the substitute of another, and empowered to act for him in his name or his behalf.” He also states: *

“Deputy is used in composition with the names of various executive officers to denote an assistant empowered to act in their name, as deputy collector,, deputy marshal, deputy sheriff.”

The following definition is also found in 5 Am. & Eng. Enc. Law, p. 623 :

“A deputy is one who, by appointment, exercises an office in another’s right, having no interest therein, but doing all things in his principal’s name, and for whose misconduct the principal is answerable. He must be one whose acts are of equal force with those of the officer himself, must act in pursuance of law, perform •official functions, and is required to take the oath of office before acting.”

Again, we find in chapter 681 of the Laws of 1892, styled the “Public Officers’ Law,” a statement of the powers and duties of a deputy which is in harmony with the definitions above given. By section 9 of the law above mentioned, it is provided, among other things, as follows :

“Every deputy, assistant or other subordinate officer, whose appointment or election is not otherwise provided for, shall be appointed by his principal officer, board or other body, and the number thereof, if not otherwise prescribed by law, shall be limited in the discretion of the appointing power. If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his principal during the absence or inability to act of his principal, or during a vacancy in his principal’s office. If there be two or more deputies of the same officer, .such officer may designate, in writing, the order in which the deputies shall act, in case of his absence from the office or his inability to act, or in case of a vacancy in the office, and if he shall fail to make such designation, the deputy longest in office present shall so act.”

Where, therefore, any statute of the state authorizes a public officer' to appoint a deputy, but fails to express his powers, the general law supplies a definition. We would therefore naturally expect to find, as we do, such officers included in any statutory provision dealing with public servants standing in a confidential relation towards an official superior. The function of a deputy, possessing the power, as he does, under certain circumstances, to act as if he were himself the actual incumbent of his principal’s office, implies a correlative duty and right on the part of the principal to exercise an unfettered personal selection in the appointment of such a subordinate, and also a corresponding freedom in exercising the power of removal whenever his confidence in the integrity, capacity, truthworthiness, or adaptability of the subordinate is in the least shaken. He should not be called upon to specify the grounds of his dissatisfaction, still less to make proof of charges when his objection, thoug hsubstantial, may rest, as is frequently the case, upon moral evidences only, or upon well grounded suspicion, equally destructive of that confidence which is of the very essence of the relation. It is also apparent from the context of the statuute in question that the word “deputy” was used in this sense. The other employes or officers in the enumeration of those excepted from the operation of the act hold places commonly understood to be confidential in their nature, and that they were so regarded by the legislature is made certain by the fact that the specific enumeration is followed by a general clause including “any other person holding a confidential relation to the appointing officer.” The principle, HNosciiur a sociss,” applies.

We are thus naturally led to a consideration of the nature of the office of deputy tax commissioner, for the purpose of determining whether he is such á deputy in the sense of standing in a confidential relation towards the commissioner of taxes and assessments. Section 813 of the New York city consolidation act of 1882 authorizes the commissioners to appoint persons to be known as “deputy tax commissioners,” who shall perform, under their direction and supervision, such duties as the commissioners shall prescribe. They shall hold their office during the pleasure of the said commissioners. By section 814 of the same act it is declared that:

“It shall be the duty of the deputy tax commissioners under the direction of the commissioners of taxes and assessments, to assess all the taxable property in the several districts that may be assigned to them for that purpose by said commissioners, and they shall furnish to them, under oath, a detailed statement of all such property showing that said deputies have personally examined each and every house, building, lot, pier, or other assessable property, giving the street and ward map number of such real estate embraced within said districts, together with the name of the owner or occupant, if known; also, in their judgment, the sum for which such property under ordinary circumstances would sell, with such other information, in detail, relative to personal property or otherwise as the said commissioners may from time to time require. Such deputies shall commence to assess real and personal estate on the first Monday of September in each and every year.”

It will thus be seen that certain specific duties are directly'cast by the statute upon deputy tax commissioners, for the due performance of which they are responsible to the public; and that, while their duties are to be performed under the direction of the commissioners, such direction, from the nature of the case, cannot involve any interference on the part of the commissioners with. their duties, in so far as the legislature has expressly provided that certain acts must be performed by them. The duties they are thus required to perform are their own, and not those of their immediate superiors,' who have therefore deputed nothing.

The assessment of the real and personal property within the city and county of New York, as a statute expressly declares, must be made primarily by the deputy tax commissioners themselves. By section 817 of the consolidation act, the commissioners of taxes and assessments are required to keep in their office books to be called “the annual record of the assessed valuation of real and personal estate,” in which shall be entered in detail the assessed valuations of such property within the city and county of New York, which books are to be open 'for examination and Correction from the second Monday of January until the 1st day of May in each and every year. During that period the commissioners themselves, and they alone, have full power to review the assessments which have been made, and to make such changes therein as the justice of the case may require; and when the books are closed, on the 1st day of May, it then becomes their duty, and fheirs alone, to prepare assessment rolls for delivery to-the board of aldermen for the levy of the tax. It is quite plain that none of the deputy tax commissioners can perform the duties of the commissioners themselves in respect to a review of the assessments which have been made, or in the preparation and delivery to the board of aldermen of the assessment rolls. The commissioners themselves, in the performance of these duties, can only act together in a so-called “corporate capacity,” sitting as a board,— a duty which it is quite clear no deputy could perform; and while it is true that, under section 813 of the consolidation act, the deputy tax commissioners are required to perform “ such duties as the commissioners shall prescribe,” it would be a most unreasonable and inadmissible construction to hold that this authorized the tax- commissioners to delegate their judicial functions to the deputies. The power to delegate the performance of such duties can only be found .-in a statute where the intention to authorize it appears beyond question; and it is needless to say that in this case no such intention is disclosed, nor has it ever practically been assumed to exist. Nor does the fact that the tax commissioners may require the deputies to perform any duties which they may prescribe make the office a confidential one. Such power rests in every public officer who is authorized to employ subordinates to enable him properly to discharge his duties, so that the acceptance of any such interpretation as this would necessarily involve the absurdity of holding that all employes who are under the control of a head of a department stand in a confidential relation towards him, within the meaning of this statute. People v. Sutton, 88 Hun, 171; 68 St. Rep. 494. As was said in that case, which arose under the same statute (chapter 577, Laws 1892):

“In order to fall within the exception of the statute, the relations between the clerk and the appointing power must be of a personal nature. The performance of official duties does not establish a confidential relation to the head of the department.”

I think it will be found upon an examination of the laws particularly relating to the city and county of New York that wherever it was intended to provide for a “deputy,” in the proper sense of that word, the confidential function of the officer plainly appears upon the face of the statute. In the case, however, of the deputy tax commissioners, there is absolutely nothing which expresses the slightest purpose on the part of the legislature to place them, or any of them, under any circumstances, in the position of their official superiors, or to confer upon them the right, at any time, to perform any of the functions immediately belonging to the board of commissioners which constitutes the head of the department of taxes and assessments. How, then, can it be said that these deputy commissioners stand in any confidential relation towards the head of the department ? And how can they be regarded as deputies standing in a confidential relation to the appointing power when none of the duties of the- latter can be deputed ? It is not enough that the legislature has seen fit to call them “ deputies ”; it must further appear, in order to bring them within the exception of the statute under consideration that they are deputies, standing as such in a confidential relation to their chief. In re Ostrander, 12 Misc. Rep. 476; 68 St. Rep. 599.

I am therefore of the opinion that the relator was not a deputy within the meaning of the statute above referred to, and that consequently he could not be removed except for cause after hearing liad. I think it is plain from the facts that the removal was made, or attempted to be made, on the ground of incompetency. Under such circumstances, the relator was entitled to a reasonable notice of the delinquency with which he was charged, and of the time and place where a hearing would be accorded. As this was not done, the removal was unlawful, and he is therefore entitled to reinstatement.

The motion for a peremptory writ of mandamus is therefore granted, with costs.


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    Emily L. Harris, Resp’t, v. Archibald M. Graham, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1, Equity—Removing cloud from title.
    The purchaser of lands subject to an apparent lien of judgment,_ which has been paid, may have it canceled as a cloud on title, though his deed contains no covenant requiring him to pay it.
    3. Same—Parties.
    In an action to conceal such apparent lien, the owner of the land and the holder of the lien are the only necessary parties.
    Appeal from a judgment in favor of plaintiff.

      Charles T. Saxton, for app’lt; E. W. Hamm, for resp’t.
   Ward, J.

On the 8th of January, 1887, the defendant recovered a judgment of foreclosure and sale against Hiram W. Bradshaw and Mary,'his wife, and another, in the Wayne county court. The judgment was for $2,374.76, and it was adjudged that Hiram W. Bradshaw should pay any deficiency that might arise upon the sale. The mortgaged prenaises were duly sold by a referee in March, 1888, and were purchased-by defendant at the sale for $1,400. The referee certified a deficiency of $903.23 on the 2d day of April, 1888, and on June 27th judgment was entered in the Wayne -county clerk's office, the referee’s report having been confirmed for such deficiency and interest. On February 20, 1890, Hiram W. Bradshaw died intestate, and. his wife and William W. Gat-chell were appointed his administrators. In March, 1891, the administrators commenced a proceeding to sell the real estate of the intestate for the payment of his debts. A decree for the sale of the premises was made by the surrogate of Wayne county (he having jurisdisdiction), and in pursuance thereof certain real property of Hiram W. Bradshaw, on the 23d day of January, 1892, was sold at public auction, and bid off by Albert Harris, the husband of the plaintiff, but for her, for $310. These premises'were subject to the apparent lien of the deficiency judgment. A deed was afterwards executed by the administrators conveying the premises sold to the plaintiff. At the time of the sale the terms thereof were in writing, signed by one of the administrators, and presented to the bidders before sale, and those terms provided that the premises would be sold subject to all taxes, assessments, and other incumbrances which at the time of the sale were liens or incumbrances upon the said premises. A similar statement was contained in the deed to the. plaintiff, but there was no covenant in the deed binding the plaintiff to pay such incumbrances or taxes. E. L. Harris, the plaintiff’s husband, upon the purchase signed a writing agreeing to comply with the terms and conditions of the sale. The plaintiff claimed that at the time of the foreclosure sale an arrangement was made between Bradshaw, the defendant, and one Jacob Barclay, who had come to bid on the premises, that the defendant should bid them off, and deed them to Barclay for $2,800; and whatever there was over and above defendant’s claim in the foreclosure judgment and costs Bradshaw should have the benefit of. After the sale, and before the confirmation of the referee’s report, and the entry of judgment for deficiency, Barclay paid the defendant $2,800— $1,000 down, and-the balance on the 9th of April, 1888,—and received a quitclaim deed of the premises covered by the foreclosure judgment from the defendant on that day. The plaintiff, after her purchase under the administrators’ sale, went into possession of the premises covered-by her deed, and demanded of the defendant the cancellation of the deficiency judgment, and that it be removed as a cloud upon her title, which was refused, whereupon this action was commenced ; and the court, upon the trial, found in favor of the plaintiff, and directed judgment that the deficiency judgment be canceled of record as a cloud upon the plaintiff’s title, and that- defendant execute and deliver a proper satisfaction of such judgment The court found the facts substantially as above stated, and also found that the said deficiency judgment was paid in full before it was entered.

The eighth finding of fact was as follows :

“ That, just before the sale by the referee, Jacob Barclay (this defendant) and Hiram W. Bradshaw made an agreement by which Barclay was to purchase the mortgaged premises for $2, 800, and that the property should be put up at sale by the referee and struck off to this defendant for a nominal price, and that he should give Barclay a deed of the same.”

The defendant claims error in this judgment for the following reasons: First. There was no such agreement as contained in the eighth finding of fact, but the preponderance of evidence before the special term was that no such agreement was made; that the defendant purchased the premises, and afterwards sold them to-Barclay, still retaining his deficiency judgment. Second. That Harris was informed at the administrators’ sale of the deficiency judgment, and that it was a lien upon the premises sold, and was a part of the consideration of the sale to be paid by Harris. Third. That the proper parties were not before the court, as, according to the plaintiff’s claim, the sale was for the benefit of Bradshaw, and his personal representatives should have been made parties to the action, and the complete determination of the controversy could not be had without their being made such parties.

The pivotal question in the case is whether there was a contract between Barclay, the defendant, and Bradshaw, as claimed by the plaintiff and found by the court. A careful examination of the evidence in the case would seem, to sustain the finding of the trial court upon this question. Three witnesses testified upon, the subject,—Barclay, the defendant, and his attorney, Yan Den-burg. Barclay swears unequivocally to the contract as claimed by the plaintiff. The defendant and Yan Denburg both admit in their testimony that Barclay and Bradshaw were both present at the sale; that Barclay said that he would not bid at the sale, but that the defendant could bid off the property, and he (Barclay), would take the title to the premises from the defendant; that before the sale the defendant and Barclay had a conversation, and entered into an agreement that Barclay should pay $2,800 for the premises, and that the defendant should deed them to him. No evidence was given showing that the amount of the deficiency judgment was to remain, but, the amount paid being in excess three or four hundred dollars of the entire claim of the defendant, in the foreclosure judgment, the inference seems irresistible from the testimony of these witnesses that. Barclay took title from the defendant discharged of the said foreclosure judgment and all interest and costs. It was the duty of the defendant, if he intended when he sold this property to Barclay, to reserve the right to enforce a deficiency judgment against it of nearly $1,000, to have so notified Barclay; and his failure to do so sustains the contention of the plaintiff'as to what the real transaction was.

In regard to the second objection raised by the defendant, it is sufficient to say that it cannot be maintained for the reason that Harris in no manner assumed to pay the said deficiency judgment, or any portion thereof as a part of the consideration of the purchase. The agreements specified in the deed of the plaintiff that she took the premises subject to all liens and incumbrances simply meant such liens and incumbrances as were valid and could be enforced. This deficiency judgment should not have been entered. It was in fraud of the rights of Barclay. The deficiency on which the judgment was based had been paid before the judgment was entered. As the judgment was paid, it could not be enforced at law or in equity, but it was an apparent incumbrance upon the plaintiff’s property, and she could directly attack it as such, and none of the rights of the Bradshaw estate could be possibly affected by the judgment removing such cloud from her title. But, assuming it to have been a valid incumbrance, the plaintiff simply taking her deed subject to it did not create an obligation on her part to pay it. In order to bind her so to do, there must have been a covenant or obligation contained in her deed that she should pay it; and then, if she accepted the deed, she would be bound to do so. Belmont v. Coman, 22 N. Y. 438; Society v. Bostwick, 100 id. 628; Smith v. Truslow, 84 id. 660.

Several witnesses on behalf of the defendant testified that when the terms of sale were read the question arose as to what these incumbrances were, and that the defendant’s deficiency judgment was mentioned as one of them. Some of these witnesses are not" clear whether this statme&t was made in the hearing of Harris. Harris denies that he heard anything of this kind, and the case does not contain any proof that Harris agreed, verbally or in writing, to pay the deficiency judgment as a part of the purchase price of the property. Some evidence was given to the effect that Harris had learned of this deficiency judgment before or at. the time of the administrators’ sale, but the plaintiff gave evidence tending to show that Harris and others connected with the sale claimed that the judgment had been paid, or could not be enforced. The special term finds that the terms of the sale were in writing, and there was evidence to sustain that finding, and it will not be - questioned here. The conclusions of the special term upon the facts seem to be fairly sustained by the evidence, and are conclusive upon this appeal.

As to the third contention, as to there not being the proper parties, the answer does-not set up any defect of parties, nor did the special term reach the conclusion that it was necessary to bring in other parties before a complete determination of the matters in controversy in this action could be had, nor can we see that such action was necessary. The owner of the land upon which the deficiency judgment was an apparent lien and the owner of such judgment are parties to the action, which would seem to be all that is necessary for the purpose of the action, which is simply to remove the cloud of the defendant’s judgment from the plaintiff’s land. But the defendant also contends that the effect of this judgment is to deprive the Bradshaw estate of the benefit of the alleged agreement testified to by Barclay, and transfer the same to the plaintiff. This could only relate to what remained of the $2,800 paid by Barclay to the defendant over and above the amount of the defendant’s costs, interest, etc. That amount is in the defendant’s hands, and if it belongs to the estate of Bradshaw, the defendant holds it as trustee of the Bradshaw estate, and may' be liable to account as such to that estate. Be that as it may, the question does not concern us here, nor is it necessary to determine that question in this action. But the judgment should be modified so as to make it effectual to remove the ■clould of the deficiency judgment from the plaintiff’s land so as to satisfy it as against her, and as so modified, affirmed, with costs to the plaintiff.

All concur.


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    Anna Brown, App’lt, v. John C. Moore, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Slander—Words imputing unchastity,
    To say that a woman is “not a lady,” or mean or low, or labors for low people, does not impute unchastity to her.
    Appeal from a judgment of nonsuit, and from an order denying a motion for a new trial.

      John H. Keef. for app’lt; William Johnson, for resp’t.
   Ward, J.

The plaintiff was nonsuited at the Monroe circuit in March, 1895, upon the close of the plaintiff’s evidence, upon the ground that the words spoken if proved, were not slanderousyjer se and that no special damage was alleged. The plaintiff was a married woman, and brought this action against the defendant charging that he had in a public place, and in the presence of others, said concerning the plaintiff: “ What are you ? You were a cook in Martin Burns’ low hotel. And one that worked there ain’t much, and I dare you to arrest me (meaning thereby and by those words that plaintiff was and had been a common prostitute and of bad character),”—to which plaintiff said, “That this is not so.” Whereupon the defendant maliciously said: “You are a liar. You are crazy.” And on another occasion, later on, the complaint charged that the defendant wickedly and maliciously said, in the hearing and presence of one Mr. McFadden, “ that he (meaning Mr. McFadden) was a gentleman, but you (speaking to the plaintiff) are not a lady (meaning thereby to hold out plaintiff to be a bad character).” It was proved by several witnesses that these words were spoken of and concerning the plaintiff in the presence of others in the city of Rochester. The plaintiff claimed upon the trial, and takes the position here, that the words used imputed unchastity to the plaintiff, or at least it was a question for the jury to determine whether they imputed such unchastity, and it was error not to submit the case to the jury.

The action is brought under section 1906 of the Code of Civil Procedure, which provides that,“in an action of slander brought by a woman for words imputing unchastity to her, it it not necessary to allege or prove special damages.” This section is the subtance of chapter 219 of the Laws of 1871. Prior to that time, words imputing unchastity to a woman were not actionable per se, but, if special damages as aresult of such words were alleged in the complaint and proved in the action, they might be recovered by the party aggrieved. . There is no special damage alleged in this complaint, and none was proved upon the trial. We meet upon this appeal the simple question whether the words spoken imputed unchastity to the plaintiff, and whether the words used could be fairly construed in that direction by the jury, even with an innuendo averring that the intent was to charge her with being a prostitute. Innuendoes cannot extend the meaning of the words beyond what is justified by the words themselves and the extrinsic facts with which they are connected. Sanderson v. Caldwell, 45 N. Y. 398. It does npt follow because a woman is called “not a lady,” or mean or low, or labors for low people, that she is unchaste. She may have habits and vices and associations that might subject her to the imputations contained in the words used, and still not be subject to the charge of unchastity or guilt of it Words in these actions are things, and, where they are actionable par' se, they must make a clear statement of the actionable charge, and the court and jury will not guess and surmise what might have been intended by the words that is not borne out by the words themselves. It has been held in Massachusetts that to say of a female that she is a bad girl or a bad woman was not actionable, even with an innuendo-averring that the intent was to charge her with being a prostitute, unless at the same time there were averments and colloquium that would warrant the innuendo. Snell v. Snow, 13 Metc. (Mass.) 278; Fitzgerald v. Robinson, 112 Mass. 380; Riddell v. Thayer, 127 id. 489. Such averment or colloquium are lacking in this case. We have only the words used, and the occasion on which they were used, and the innuendo stated in the complaint.

The judgment and order should be affirmed.

All concur.


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    Adelbert Moot, as Trustee, etc., Resp’t, v. Business Men’s Investment Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Contracts—Performance—Time of essence.
    Where the parties make time of the essence of a contract, they must • perform it within the time specified.
    Appeal from a judgment, rendered in favor of plaintiff.

      Spencer Clinton, for app’lt; Adelbert Moot, for resp’t.
   Ward, J.

The defendant is a corporation. Mr. Moot, as trustee, represented certain parties, whom we shall style the plaintiff. On the 5th of May, 1893, the plaintiff and defendant entered into a contract in writing, whereby the defendant agreed to sell to the plaintiff certain real estate in the city of Buffalo for $127,400, for which plaintiff agreed to pay in installments, except the sum of $1,000, which was paid upon the execution of the contract by the plaintiff to the defendant. Four thousand dollars was to be paid upon the delivery of a deed to said premises, which should be on or before May 20, 1893. The balance was to be secured by assuming a mortgage upon the premises, and executing another mortgage; and, if such payments were made and security given, the contract provided that the defendant would, “ on or before the 20th day of May, 1893, execute and deliver to tho parties of the second part (the plaintiff) good and sufficient deed of said premises containing a covenant of warranty, which deed shall convey good and satisfactory title, a search truly showing the condition of the title being furnished at the expense of the party of the first part ” (the defendant); and the contract further provided: “ And it is further expressly -agreed that time is of the essence of this contract, and that performance thereof must be made on or before the 20th day of May, 1893.” The plaintiff performed the Contract, so that it was entitled to the search and deed provided therein, on the 20th day of May, 1893. The learned court found as a fact :

“ That while said contract was still in force the defendant delivered to the plaintiff a search of the premises in question. That said search did not show, a good and satisfactory title, and did not show the condition of the title of the defendant to said premises. That said search showed the notice of pendency of an action in partition in the superior court of Buffalo in which Evered Palmer was plaintiff and Cynthia J. Curtis and others were defendants ; and said search also showed that by the records in the clerk’s office of the county of Erie a certain judgment in said action of partition of a part of the premises in question and others in the superior court of Buffalo, which judgment was entered in the office of the clerk of the superior court of Buffalo on the 24th day of July, 1866, and a copy thereof was recorded in- Erie county clerk’s office, with a report of commissioners herein, on. the 4th day of August, 1866, in Liber 258 of Deeds, at page 383, which showed that a portion of the premises in question was described therein. That no search was ever delivered to the plaintiff or his attorney while said contract remained in force, showing good and satisfactory title, or truly showing the condition of the title of the defendant.”

The plaintiff refused to accept the search as offered, and subsequently brought this action to recover the $1,000 paid upon the contract, with interest. Thfe decision of the court was filed January 8, 1895. • At the time of such decision the court found “that the defendant now has a good title to the premises in question by virtue of various deeds and judgments,” etc., which the court proceeds to enumerate; but the court also found that “time was the.essence of said contract, and, after said contract had ceased to exist by virtue of its terms, or by virtue of extensions thereof, the plaintiff was not and is not under obligations to accept the title since tendered plaintiff by defendant in this action." The court also found that the plaintiff had demanded the repayment of the $1,000 advanced, and was entitled to recover the same, with interest. The action was commenced August 10, 1893. The trial was had the 6th of September, 1894. The evidence in this case sustains the findings of the court set forth above. This was an important contract, involving the sale of valuable property at a period of rapid sales and exchanges in Buffalo of real estate, and time was material. Hence it was stipulated that it should be of the essence of the contract, and stipulated that the defendant should not only convey title to the property, but should, on the 20th of May, produce a search that should exhibit such title. The parties, by their contract, made the exhibition of such a search a condition precedent to further performance of the contract on the part of the plaintiff, and it was immaterial that the court should be able to say, a year and a half after that time and after an action had been brought to recover the purchase-money paid, that the defendant then had title, and the court properly refused to compel the plaintiff to take the title tendered after that lapse of time, when circumstances and the conditions of property may have greatly changed.

We find no reversible error in the proceedings of the trial court, and the judgment should be affirmed.

All concur.


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    Louis W. Becker, Resp’t, v. Alfred S. Warner, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Innkeepers—Liability,
    Watches are not “ jewels ” nor “ ornaments ” within- the meaning of chapter 227 of 1883, regulating the liability of innkeepers for loss of such property of a guest.

      2. Same—Contbibutoby negligence,
    Where the owner is guilty of negligence contributing, and without which the loss would not have occurred, the innkeeper is relieved from responsibility for the loss.
    3. Same—Evidence—Intoxication.
    In such case, the evidence of the intoxication of the owner is admissible upon the question of negligence.
    4. Same—Contbibutoby negligence.
    The question of the contributory negligence of the owner was held, under the circumstances of this case, to be a question for the jury.
    6. Same—Duty of guest.
    A guest, going to a hotel, should use reasonable care and caution to protect his property and himself from thieves that infest hotels and cities.
    Appeal from an order granting plaintiff’s motion for a new trial.

      Moses Shire, for app’lt; Hudson Ainsley, for resp’t.
   Ward, J.

On the 20th and 21st of July, 1893, the defendant was keeping an hotel in Buffalo, known as the “ Stafford House.” At that time the plaintiff (respondent here) was a guest at the hotel. He was a merchant from the country, and was there in connection with his business. On the evening of. the second night, the plaintiff went out riding with some friends in the city, and remained out until about one o’clock. A clerk in the hotel conducted the plaintiff to his room, which was on the ground floor of the building, with a window opening on a public street,, the bottom of the window being about three feet above the street. The plaintiff knew this fact. There were two clerks at the hotel, and a bell boy; one clerk leaving and the other coming on at one-o’clock. The clerk who left saw the plaintiff come in, and testified that he had known him for some time; that he appeared as-usual, but he thought he had been drinking. Albert S. Bice, the clerk who came on at one o’clock, testified, in substance, that he gave the plaintiff the key to his room, to which he went, accompanied by the bell boy. At two o’clock the clerk sent a boy around the hotel to look after it He came back and made a report to the clerk. Bice went and looked into the window of the plaintiff’s room, and saw him lying on his bed in his underclothes, not under cover. The window, which was sufficient to admit a person was open, and the blinds were open. The gas in the room was burning brightly, so that everything could be seen therein, practically. Rice then went inside to the door of the plaintiff's, room, and, after a loud knocking, aroused the plaintiff, who let him in. The plaintiff appeared drowsy. His clothes were upon the floor. The plaintiff picked up his clothes, looked through them, said he had lost his watch and money. The clerk asked him if he had put down his window. He said' he had not, but that v,.he blinds were down. The bell boy was sworn, and he testified" that at two o’clock he went around the house, and found plaintiff’s window open; the gas was burning high, and the blinds were open ; that plaintiff was lying on "top of the bed, in his underclothes; that he reported the matter to the clerk; and that they went to the door of plaintiff’s room, when they rapped three or four minutes on the door, and finally succeeded in waking the plaintiff up. The plaintiff asked him what his name was, and said that he (plaintiff) was pretty drunk when he went to bed, and told the bell boy that he ought to know better than show him to a room with the windows open. The plaintiff testified, in substance, that, when he went to the room, he had a gold watch with him, and a chain attached, and about $50 in money ; that he knew he was on the ground floor, and that a man could step right into his room from the street; he. did not know whether the window was open, but that the inside blinds on the window shoved up and down,,and they were closed; there was a bath room connected, in which he -took a bath; that when he retired, he put his vest on a hook in the room, and his watch was in his vest pocket; he put his pants on the bedpost, and his money was in the pants pocket; that he was awakened at two o’clock, and he observed that these things were gone, and he never found them. As to the light, he first testified: "1 left that light that night; the gas was burning at full head, and it was so burning when I woke up.” As (he examination proceeded, he said he did not remember swearing to just what bar. been stated, but stated the fact was that, while the light was burning in his room, he had turned it partially down ; that, when he awoke, he found the window wide open from the bottom, and the inside shutter had been pushed together; that, when he retired, he did not go to look as to whether the shutters were closed or latched ; that he paid no attention to the window; but persisted in saying that the blinds were closed. He denied that he was under the influence of liquor, but he admitted that he had taken a glass or two of beer with his friends with whom he had been riding, at a saloon, before coming to the hotel.

The defendant had put the proper notice in his hotel that was required by chapter 421 of the Laws of 1855, as amended by chapter 227 of the Laws of 1883, notifying the guest that a safe had been provided in the hotel in which money, jewels, or ornaments of the guest might be deposited, and, if they should neglect, to deliver such money,-jewels, or ornaments to the person in charge of the office for deposit in such safe, the proprietor of the hotel would not be liable for loss of such jewels, money, or ornaments. The learned trial judge held that the plaintiff could not, recover for the money lost, as the statute protected the defendant in that regard, but might recover the value of the watch and chain, unless the plaintiff’s negligence under the circumstances had contributed to the loss of the property; and that question was submitted to the jury, who, after being out two days, brought in a verdict for the defendant A motion for a new trial was made upon the minutes of the judge, and the court granted a new trial, and, in a brief opinion, states the impression of the court that the verdict rendered was against the evidence, and the result of passion or prejudice on the part of the jury. The appellant insists that, under the statute cited, the defendant is not responsible for the loss of the watch and chain, as it comes within the description of property covered by the notice that should be deposited in the safe, and cites Rosenplaenter v. Roessle, 54 N. Y. 262, 266. As there is some confusion in the cases upon this subject, it may be useful to glance at the decisions relating tó it.

In Gile v. Libby, 36 Barb. 70, the action was against an innkeeper for the value of a watch and chain, gold pen and pencil case, and twenty-five dollars in money. The statutory notice had been posted in the hotel, and the court held that the watch and chain were neither jewels or ornaments, and the plaintiff might recover for those as well as the small amount of money which he had a right to keep about his person, and that the statute requiring the deposit of money in the safe referred, not to the small amount usually carried by guests, but to larger amounts. This was a general term decision of the first district, and was not reversed.

But in Hyatt v. Taylor, 51 Barb. 632, the Broome general term held that, as to money and jewels, the guest was not excused for retaining them to any extent. If he did, and they were stolen, he must bear the loss. The case went to the court of appeals, where the judgment, was affirmed (42 N. Y. 258), and the view of the general term as to jewels and money was sustained; and we may therefore regard Gile v. Libby, as'to jewels and money, overruled.

In Bernstein v. Sweeny, 33 N. Y. Supr. Ct. 271, an action was brought to recover for a watch and chain and diamond shirt studs, the court held that neither a watch nor chain was, within the meaning of the' statute, “ a jewel or ornament,” for the loss of which the hotel proprietor is not liable, but is protected under the statute. Allen, J., speaking for the court of appeals in Ramaley v. Leland, 43 N. Y. 539, at page 542, says:

“ The statute permits the proprietor of an hotel to relieve himself from the strict common-law liability in respe t to certain classes of property upon compliance with the prescribed conditions, but the exemption is limited to the particular species of property named, and, being in derogation of the common law, cannot be extended in its operations and effect by doubtful implication so as to include property not fairly within the term of the act. * * * By statute, the proprietors of hotels may provide a place of safe-keeping of money, jewels, or ornaments belonging to the guest,” etc. A watch is neither a jewel nor ornament as these words are used and understood either in common parlance or by lexicographers. It is not to be used or carried as a jewel or ornament, but a timepiece or chronometer—-an article of ordinary wear by most travelers, of every class, and of daily and hourly use by all. It is as useful and necessary to the guest in his room as out of it, in the night as in the day time. It is carried for use and convenience, and not for ornament.”

In Rosenplaenter v. Roessle, supra, an action was brought to recover a lady’s bracelet, stud, hairpin, sleeve buttons, etc., which were stolen from her trunk in the Delavan House, Albany. The court held that the statutory exemptions applied to these articles, and that the plaintiff- could not recover. Judge Earl, in the opinion in that case, in specking of the cases of Gile v. Libby and Hyatt v. Taylor, supra, says as follows, at page 266 :

“The law is thus settled in this state that if a guest, on retiring to bed atnight, removes a watch or jewelry from his person, or leaves money in his pocket, and neglects to deposit the same in the safe provided for that purpose, he cannot hold the landlord liable for the loss of the same, provided the notice required by statute has been posted,” etc.

In so far as the foregoing statement includes a watch, it was evidently an inadvertence on the part of the learned judge, or at least obiter. There was no watch in controversy in that case, but the question was directly up, in the same court, a short time before, in Ramaley v. Leland, supra, where an action had been brought against the Metropolitan Hotel in New York by a guest to recover the value of a watch that had been stolen from his room. We must hold that the law is correctly stated in Ramaley v. Leland, and therefore the first contention of the defendant cannot prevail.

But the defendant also contends that he is relieved from responsibility for the loss of this watch and chain because of the negligence of the plaintiff contributing, and without which it would not have occurred. The evidence of the intoxication of the plaintiff was received upon this question of negligence, upon the principle asserted in Walsh v. Porterfield, 87 Pa. St. 376, 378, that if the plaintiff was intoxicated, and' this in any way contributed to the loss, he could not recover. It is more probable that an intoxicated man, or one whose reason and judgment is obscured by drink, may be less cautious even of property upon which he sets high value. Such, indeed, is the common experience of mankind. The question was fairly submitted to the jury by the learned trial court, and, in our' judgment, was properly submitted, and the verdict of that; jury should not be disturbed.

We have stated the leading features of the evidence at some length bearing upon the question of the plaintiff’s negligence, without desiring to prejudice his case in any way upon another trial by a statement of the effect of the evidence upon this question. We simply say, without repeating the evidence, that the bare statement of that evidence must lead to the conclusion that a serious question exists as to whether the plaintiff was not so negligent as to destroy his right of recovery. A guest going to an hotel should use reasonable care and caution to protect his property and himself from the prowling night thieves that infest hotels and cities. There was evidence to go to the jury, and upon which they might act, showing that the plaintiff did not exercise that care which he should have done under the circumstances. Take the whole evidence together, and the jury might ■conclude that there was an open window in this room, on this •summer night, into which any street thief could creep with the slighest effort, and through which he could look on a broad light that fell upon a sleeper, with his vest hanging up on a peg, containing his watch, and his pants conspicously placed, containing his money ; and that condition created by the plaintiff hirnself,. or permitted from his negligent ignorance of the situation. It was held in Swann v. Smith, 14 Daly, 114, by the general term of the New York common pleas, that an hotel keeper was not liable for property stolen from the plaintiff’s room under the circumstances there stated, when the plaintiff had left the door unlocked, as in doing so he indicated want of ordinary care. And in Ramaley v. Leland, supra, the court say that the question whether the plaintiff could and did bolt his door was properly submitted to and passed upon by the jury, upon the question of plaintiff’s negligence. Certainly, if the failure to lock the inside door of an hotel in the plaintiff’s room was sufficient upon the question of negligence to carry the question to the jury, the circumstances in this case are sufficient.

Our attention is called to the rule that granting and refusing ■new trials on the minutes is a matter largely resting in the discretion of the trial court That rule does not assist the plaintiff in this case, as the circumstances of negligence to which the evidence points are so formidable that we must review the discretion of the trial court, and reverse this order.

Nor can- we discover anything in the case, or in the action of the jury, or in the length of time it took to consider the ease, to justify the conclusion that the jury were governed by passion or ^prejudice. "

The order granting a new trial should be reversed, and judgment in favor of the defendant entered upon the verdict, but without costs.

All concur.


author: Parker, J.

text:
    Percival R. Irving et al., Resp’ts, v. Walter Irving, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Reference—Compulsory.
    Though the cause of action set up in a complaint appears on its face to be nonreferable,_ yet, if the defense interposed to such cause of . action shows that the trial of that issue will necessarily involve a long account, a compulsory reference may be ordered.
    2. Same.
    Even though the action is not brought upon an account, a compulsory reference will be ordered where the trial of the issue will necessarily and directly involve the examination of a long account.
    Appeal from an order directing a reference.

      Edward Mitchell, for app’lt; Benjamin N. 0ardozo¡ for resp’ts.
   Parker, J.

This action is on a promissory note, of which the-plaintiffs are the payees, and the defendant the maker. The complaint, in addition to setting up a copy of the note, alleges that the note was made and delivered for value, and that the amount thereof is due from the defendant. The answer contains several separate defenses, the first of which reads: This defendant denies that the promissory note mentioned in the second paragraph of the complaint was made for value. He alleges that it was without any consideration.” And this is followed with a denial that any sum “ is due and owing from the defendant.” The second defense is of new matter, but does not allege a counterclaim or set-off. It contains a narrative statement of the facts, showing certain stock transactions of the parties, out of which was created a false account against the defendant, for which he was induced to give the note in suit. In addition to giving a statement of all the circumstances under which the note was made, it renewed the allegations in the first defense that the note was without any legal or valuable consideration, and that the defendant is not justly indebted to the plaintiffs in any sum whatever.

Undoubtedly, the appellant is right, in his contention that the answer gainsaid the plaintiffs’ cause of action. Although the defendant does not deny the making of the note, he does not thereby admit the plaintiffs’ cause of action, for he specifically denies the allegation in the complaint that it was made for value, and alleges that it was wholly without consideration. And the plaintiffs have not a cause of action if such be the fact. The appellant, starting with the proposition to which we have given assent, insists that Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236 ; 58 St. Rep. 765, requires a reversal of the order. In that case the cause of action stated in the complaint was not referable without consent, and it was put in issue by the answer, which' also set up a counterclaim consisting of a long account; and it was held that ihe order of reference granted on motion of plaintiff, against objection of defendant, was error. This case is quite different. The long account which persuaded the learned judge at special term to grant the order of reference will be involved in the issue as to whether the note was given without consideration. But it was said in /Steck’s Case that when the cause of action alleged in the complaint is not referable, and the same is put in issue, the account .cannot be made referable by anything which the defendant may set up iá his answer. The language employed by the court was broad enough, it will be seen, to fully sustain the appellant’s contention. But in Steak's Case, as well as in the several cases cited by the court, the counterclaim was a distinct and independent cause of action, and the fact that it involved a long account did not make it an element in the proof of the plaintiff’s cause of action.

The question sharply presented to the court was whether the fact that the trial of the counterclaim might involve an examination of a long account would justify a compulsory reference of the issues, where the plaintiff’s cause of action was controverted and nonreferable. Necessarily, therefore, the question involved in this case was not brought to the attention of the court, and the language employed by it was not chosen with reference to the situation. The ground of the decision was that as the constitution declared that trial by jury should remain inviolate forever in every instance where it had theretofore existed, and as to the date of the adoption of the constitution the law of pleading would not permit an assertion of a counterclaim, unless the defendant should admit the truth of the plaintiffs’ allegations, it followed, under the practice theretofore in .vogue, that there could not have been a counterclaim when -plaintiffs’ cause of action was gainsaid. Hence the necessity for the examination of an account, in connection with a counterclaim, could not support a compulsory reference of the issues, unless plaintiffs’ cause of action was admitted, or was itself referable in its nature. And, as such was the law at the time of the adoption of the constitution in 1777, it follows that in such cases its guaranty of trial by jury requires that the words “on either side,” in the section of the Code referring to compulsory references, be construed with this implied limitation. But, in reaching such conclusions, courts have from time to time used more comprehensive language than was required to assert that a cause cannot be compulsorily referred when a nonreferable cause of action is put in issue, by an answer which at the same time séts up a counterclaim involving a long account, and have said “that plaintiff’s right to a jury trial in such cases could not be taken away or destroyed by anything which the defendant may set up in his answer.” The courts have not said, nor have they intended to be understood as saying, that the answer could not be looked at in any case for the purpose of determining whether the action be referable. Of necessity, it must be examined for that purpose. The cause of action set up in a complaint may, upon its face, involve a long account, but it is not referable unless the items of the account are put in issue. And this can only be determined by an examination of the answer. So, we apprehend, if the cause of action set up in a complaint appears on its face to be nonreferable, yet, if the defense interposed to such cause of action shows that the trial of that issue will necessarily involve a long account, a compulsory reference may be ordered. It is true that, under these pleadings, all the plaintiffs will be required to do upon the trial will be to produce the note, and compute the interest, in order to establish a prima facie case. But that fact in no wise tends to prove that a long account is not involved. It relates to the order of proof solely. Upon the plaintiffs rests the burden of proving a valuable consideration. The production of the note, by presumption of law, accomplishes that result in the first instance ; yet, when the defendant has offered evidence in rebuttal of this presumption, the burden rests upon the plaintiff of sustaining, by further proof, the allegation of value. And, when the .tribunal which is to pass upon the evidence approaches its consideration, it does so with the rule of law-in mind, and controlling its action, that the burden of establishing the consideration rested upon the plaintiff throughout the trial, and that, from all the evidence, it must appear that he has met that burden in order to entitle him to recover. Farmers' L. & Trust Co. v. Seijke, 144 N. Y. 354-359 ; 63 St. Rep. 662.

The issues presented by these pleadings must be tried, in order that the plaintiffs may sustain the cause of action alleged in their complaint. It appears that, while the action is not brought upon an account, the trial of such issues will necessarily directly involve the examination of a long account; and, that being so, we think the cause is referable.

The order should be.affirmed, with $10 costs and printing disbursements.

All concur.


author: Per Curiam.

text:
    Lewis Abrams, Resp’t, v. Charles Lavine, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Attachment—Affidavit.
    An affidavit for an attachment, which merely alleges what third persons told affiant, is insufficient.
    2. Same.
    The affiant should allege an attempt to procure the deposition of the informant, and the refusal of the latter to make an affidavit.
    3. Same.
    The fact that the latter is a friend of the defendant, and has done business in the town where the defendant resides, is not a sufficient reason for not producing the affidavit.
    Appeal from an order denying a motion to vacate an attachment.

      Charles E. Patterson, for app’lt; Lyman Jenhins, for resp’t.
   Per Curiam.

The grounds upon which plaintiff applied for an attachment were that defendant had failed to meet him at Glens Falls as he had promised to, and that plaintiff sawand had a conversation with one Aronsen, in which the latter said that said Charles Lavine, the defendant therein ; that something about six months ago one Link failed at North Creék, N. Y., at the place where said Lavine is now, and was at that time, doing business; that said Link was assisted during said failure by said Lavine, and that he was now about to assist said Lavine to sell, assign, dispose of, and secrete his property with intent to defraud his creditors; and that said Lavine said that he, should make an assignment of all his property within about thirty days.” The statements of Aronsen, on which 0 plaintiff applied for an attachment, were mere hearsay. The plaintiff failed to give any sufficient reason why the affidavit of Aronsen was not produced. The fact that the latter is a friend of defendant, and has done business in the town where defendant resides, was not sufficient reason. The statement that Aronsen will not voluntarily make an affidavit is evidently a mere conclusion of the plaintiff’s. He should have alleged an attempt to procure the deposition of Aronsen, and the refusal of the latter to make an affidavit. Farley v. Shoemaker, 17 St. Rep. 205; Bank v. Alberger, 78 N. Y. 252. As said by Danforth, J., in the case last cited (page 258), “It would be intolerable if the property of a citizen was liable to seizure upon such vague and inconclusive averments as are contained in the affidavits before us.” Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.


text:
    Laura Cunningham, Resp’t, v. John Scott, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Bills and notes—Bona fide purchaser.
    Holders of negotiable paper are only entitled to the benefit of the commercial law, which forbids its validity being questioned when they have purchased such paper in good faith, and in the usual course of business, before maturity, for full value, and without notice of any facts affecting its validity.
    3. Same—Presumption.
    The holder may make out his title by presumption, but this may be impeached by evidence showing the paper had an illegal inception, and then he can no longer rest upon presumption, but must show the circumstances under which it came into his possession, and that he has acted in good faith.
    3. Same—Payment of value.
    The payment of value for negotiable paper is a circumstance to be taken into account, with other facts in determining the good faith of the pur chaser, but it is not conclusive, when it appears that the paper was obtained under such circumstances as would have prevented the original holder from maintaining an action thereon, except in the absence of all evidence tending to show notice to, or bad faith on the part of, the purchaser.
    4. Same—Question for jury.
    The question whether the plaintiff was a bona fide purchaser of the note was held, under the facts of this case, to be one for the jury.
    Motion for a new trial of exceptions, ordered to be heard at general term in the first instance.

      Dallas Flannagan, for pl’ff; Sol. Kohn, for def’t.
   Parker, J.

The note upon which recovery was had was made in the state of Texas, and is therefore governed by the law of that state. It does not appear, however, that the statutes of Texas affect in any manner the legal questions which grow out of this controversy, and, in the absence of proof to the contrary, the common law must be presumed to prevail in Texas, as it does in New York; and in this state the law applicable to the facts of the case is that holders of negotiable paper are only entitled to the benefit of the rule of the commercial law, which forbids its validity being questioned when they have purchased such paper in good faith, and in the usual course of business, before maturity, for full value, and without notice of any facts affecting its validity. The holder may make out his title by presumption, but this may be impeached by evidence showing the paper had an illegal inception, and then he can no longer rest upon presumption, but must show the circumstances under which it came into his possession, and that he has acted in good faith. While gross carelessness will not, as a matter of law, defeat title in the purchaser for value, it constitutes evidence of bad faith. The payment of value for negotiable paper is a circumstance to be taken into account, with other facts, in determining the good faith of the purchaser, but it is not conclusive when it appears that the paper was obtained under such circumstances as would have prevented the original holder from maintining an action thereon, except in the absence of all evidence tending to show notice to, or bad faith on the part of, the purchaser. With these rules as our guide, we shall briefly consider the evidence.

At the outset, it may be observed that it is undisputed that the note was obtained by the payee without-consideration. It was made under the following circumstances: In November, 1890, John Scott, the maker, while in the state of Texas, negotiated for the purchase of some land of one E. H. Eopes, with whom he had been acquainted for some period of time. Eopes supposed that he was, or, at least, said that he was, the owner of a tract of land in the county of Nueces, and he agreed to sell the same, and to take defendant’s note therefor, with vendor’s lien on the land to be conveyed. The note was made and delivered to Eopes, and therein was acknowledged the vendor’s lien on the land described as security for the payment of the note. The deed had not been made out when the defendant left the state, and it was agreed that it -should be made out, executed, and forwarded to him. It turned out that Eopes did not own the land, or, at least, he only had title to a part interest; the greater portion of it belonging to a corporation, of which one Stayton was the secretary and also the attorney, and to whom reference will later be made. Eopes, therefore, did not forward to the defendant a deed, as he agreed, as he neither had nor could obtain title. There was a total failure of consideration for the note, therefore, and Eopes had no right to put it in circulation. Eopes indorsed the note, and turned it over to Stayton, as the latter alleges, in payment of debt already due to him from Eopes for legal services rendered. Eopes testifies that it was a loan to Stayton, who reported to him that he would get into trouble unless he had some collateral to put up in addition to papers of his own. That Ropes, and not Stayton, gives the correct account of the transaction, is evidenced by a receipt signed by Stayton, which reads as follows: “ Received of E. H. Ropes, as a loan, one vendor’s lien note for $4,506, dated Corpus Christi, November 24th, 1890, and given by John Scott as part of the purchase money of block number 814, on Port Aransas Cliffs.” At least, the jury would have been authorized to find from this and the other evidence in the record that it whs a loan to Stayton, to be used temporarily as collateral, and then to be returned. They would have been further authorized to find from the evidence that Stayton well knew that there was no consideration for the note. The note, and also the receipt, bore evidence that the consideration for the note was the purchase price of the land referred to in both note and receipt,— land which was at that time owned by a corporation, of which Stayton was the secretary and attorney; and it appears from the testimony of Ropes that Stayton, at his request, had made a search of the title to such land, which showed that the greater part of it, if not all, belonged to the corporation. After Stayton had acquired possession of the note, he turned it over to Messrs. Swearingen & Brooks, for this plaintiff, to whom he was then indebted in the sum of. $2,040, considerably less than half the face value of the Scott note. Swearingen and Stayton would have it believed that Stayton sold to Swearingen’s firm, for the plaintiff, this" note for that sum in cash, but the plaintiff testifies that Stayton owed her that sum of money, with some interest, and that she had notice from Swearingen & Brooks of their getting the note. Under what circumstances they got it, and whether it was as collateral to plaintiff’s indebtedness, ór in payment of it, she does not seem to know, or, at least, her testimony is silent upon that subject. It is certainly quite remarkable that she should have no information in reference to it, and that she should not have felt called upon to inquire how it was that she should be given a vendor’s lien note for more than twice the amount of the indebtedness due to her from Stayton, if it was intended merely as a payment of such indebtedness. There is still another bit of testimony which should not be' lost sight of. As we have already observed, Stayton undoubtedly knew when he borrowed the note that it was without consideration, and that any attempted disposition of it by him would be fraudulent; and yet Ropes testified that he knew that at the time of the transaction Stayton was attorney for Mrs. Cunningham, this plaintiff. Although this testimony was weakened somewhat by a statement of how he acquired the information, still it was entitled to consideration.

In the light of these facts, we think it was a question for the j ury whether she was a good-faith purchaser for value, and not a question of law for the court.

The exceptions should be sustained, and a new trial ordered, with costs to the defendant'to abide the event.

• All concur.