text:
    William Roe, Resp’t, v. Thomas E. Crimmins, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

      1. Municipal cobpobations—Stbeets—Excavations.
    Persons making excavations in the public street, are bound to keep them in a safe condition for use in the usual mode by travelers.
    2. Same.
    The mere presence of a party among the number of those who were watching the returns affecting the result of a presidential contest, does not render him guilty of contributory negligence
    3. Negligence—Question oe pact. , t
    Unless negligence is the inevitable and necessary inference from the facts, it is a matter for the jury.
    4. Witness—Pebjuby—Cbedibility.
    Where a party willfully swears falsely upon any material point, the jury have the right to disregard the whole, or any part,' of his testimony.
    Appeal from judgment entered on verdict of jury in favor for plaintiff.

      C. G. Nadel and T. S. Moore, for app’lt • M J. Nathan and F. L. Wellman, for resp’t.
   Ehrlich, C. J.

The action was brought by plaintiff to recover damages for personal injuries received November 8, 1892, by falling into a trench which had been dug by the defendant in Park Eow near Frankfort street, in the city oí New York. At that time the defendant was building the cable for the Third Avenue Eailroad Company, November 8, 1892, was presidential election day and in the evening a large crowd congregated in front of the World building on Park Eow for the purpose of» reading the election returns. The plaintiff left his home at 178 Jlenry street shortly before ten o’clock that evening, walked down to the World building and formed one of the number congregated there for the purpose stated. He stood in the middle of the street, about fifty feet from the World building, and had been there about half an hour before the accident occurred. The crowd increased while the plaintiff was standing there. The trench was dug between the easterly side of Park Eow and the westerly car track, and was six feet deep and about eight feet in width. The crowd, in pushing forward, pushed the plaintiff in the trench. He tried to keep back but was unable to protect himself. The trench at this point had no protection whatever for about 100 or 150 feet; but above and below this point it was guarded by a wooden fence. When he fell into the trench the plaintiff struck his lips and mouth against an iron pipe which lay in the trench, knocked out three upper teeth and all but two under teeth; his lower lip was hanging on his chin He was conscious, was able to cross over to the Chambers Street Hospital, where he was treated by Dr. Stokes. He remained in the hospital over night, and saw the doctor every day for a month, during which time he was unable to work. His speech has been affected by the injury, and he has a scar on his lip, and cannot masticate meat of any kind, but is compelled to eat soft food. It is settled by a long line of decisions in this state, that municipal corporations or persons making excavations in the public street are bound to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for a special injury resulting from neglect to perform this duty. The defendant was clearly guilty of negligence in leaving the trench unguarded, and the only question is, whether the plaintiff, under the circumstances, was guilty of contributory negligence. It was presidential election night, and the plaintiff, following the custom of all good citizens, was watching the returns received affecting the result of the presidential contest. The purpose was certainly legitimate, if not praiseworthy, and as such congregations have been permitted for so long a time that the memory of man runneth not to the contrary, we cannot hold ,that the mere presence of the plaintiff among the number took from him any of the rights necessary for the security of life or freedom from bodily harm. The surging crowd did not commit any assault upon the plaintiff, nor did it designedly throw him into the trench ; and if it had been guarded as it should have been he might not have received any injury whatever. It will not do to hold that the plaintiff was necessarily guilty of contributory negligence, for this is a question about which minds might differ, and was, therefore one for the jury to determine The jury, by their verdict, have found that the plaintiff was not guilty of any negligence contributing to the injury, and their finding on this subject is satisfactorily sustained by the facts and the inferences to be drawn from them. When facts are capable of different inferences the question must go to the jury for determination, and unless negligence is the inevitable and necessary inference from the -fact, it is a matter for the jury. Lee v. Troy Citizens Gas Light Co., 98 N. Y. 115; Greany v. L. I. R. R. Co., 101 N. Y. 419, 423. The case seems to have been carefully submitted to the jury, and the only exception to the charge requiring comment is that at folio 134, in which the judge was requested to charge that if the plaintiff wilfully swore falsely upon any material point the jury should disregard his entire testimony. The judge charged the request with the modification, that they had the, right to disregard the whole of the testimony or any part thereof. The so-called modification did not prejudice the defendant; for the jury were practically told that they might disregard the entire testimony, and adding “ or any part thereof ” did not, in our judgment, detract from the force of the request. The plaintiff testified to some things about which there was no dispute, and in respect to which he was corroborated ; and there was no-reason why, in respect to matters not in dispute, the testimony should be disregarded because the plaintiff might in other things have testified falsely. The jury have found his testimony true, and it was hardly a case where the maxim invoked without the-modification would have been applicable. We find no error, and the judgment must be affirmed, with costs.

Van Wyok,'J., concurs.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    Frank Schulberg et al., App’lts, v. Jacob Gutterman et al., Resp’ts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Evidence—Pabtnebship.
    The declarations of a party to the suit as to the existence of a partnership, are competent to charge and prove him to have been a member of such alleged firm.

      Abraham Levy, for app’lts; Jacob Barnett, for resp’ts.
   McCarthy, J.

This was an action brought against the defendants for goods sold and delivered. The defendant Younger-man did not defend, but made default, and the defendant Gutter-man appeared and answered in effect a general denial. The defendant Youngerman was the son-in-law of Gutterman, and question principally contested was that of the alleged partnership. One of the plaintiffs, and another witness testified to statement made by Gutterman admitting the partnership and bis liability for the goods in question. This Gutterman denied and said : “ I have never at any time been in the collecting business with any one in my life. Mr. Youngerman was at no time a partner of mine in business,” and absolutely denied the statements testified to by plaintiff and his witness. On rebuttal oneYriedlander was called on behalf of plaintiff, and among other questions asked was the following: Q. Did you have any dealings with Jacob Gutterman and Joseph Youngerman, the firm of Gutterman & Youngerman ?' Defendant’s counsel objects. Objection sustained. Plaintiff excepts. Q. Did Mr. Jacob Gutterman at any time buy or tell you that it was all right for you to ship goods to the firm of Gutterman & Youngerman at Goldsboro, North Carolina, because he was a partner ? Defendant’s counsel objects. Objection sustained. Plaintiff excepts. We think this was error, for here was evidence contradicting the defendant and to show- that he claimed, represented and held himself out.to the world as a partner of Younger-man in this business. In action to charge defendants as co-partners, the partnership may be establishe4 as well by circumstances, declarations, admissions and conduct, as by direct proof. Rogers v. Murray, 110 N. Y. 658; 18 St. Rep. 598; Cassidy v. Hall, 97 N. Y. 169. See De Cordova v. Powter, 16 St. Rep. 1006. The declarations of a party to the suit as to the existence of a partnership, are competent to charge and prove him to have been a member of alleged firm and who were admitted by him to have been the persons composing it. See Kipper v. Sizer, 2 St. Rep. 386. This testimony was important as corroborating the contentions of the plaintiff and should have been submitted to the jury for their consideration. Judgment is therefore reversed, and a new trial ordered, with costs to abide the event. Ehrlich, C. J., and Van Wyck, J. concur.


text:
    Albert Waldheim, as Administrator, etc., Resp’t, v. The John Hancock Mutual Life Insurance Company, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Insurance—Life—Benefit of wife.
    Where a husband has, on his application, policies of insurance issued on his life for the benefit of his wife only, and pays the premium thereon, her interest in them, upon her death, passes to him.

      Langbein Bros., for app’lt; Moses Weinman, for resp’t.
   McCarthy, J.

This is an appeal from a judgment in favor of plaintiff, entered upon a direction to the jury to find a verdict for the plaintiff for $400.19. The defendant, in the years' 1884 and 1885, issued two policies, both on the life of one Christian Wurster, on his application, he paying the premiums, for the benefit of his wife Marianna Wurster, not to her administrator, executors, assigns, legal representatives, etc., but payable only to Marianna Wurster. Her name being the only one mentioned, in the policy. The policies were delivered to and held by him until his death. The beneficiary, Maria Wurster, died intestate about January 1, 1890, before the insured, Christian Wurster, who died about April 30, 1890, four months after the death of the beneficiary (the wife), retaining possession of the policies up to the time of his death, the plaintiff’s intestate never having had possession of them, he (Wurster) having paid the premiums up to the time and after his wife’s death. There was no issue of the marriage between plaintiff’s intestate and the insured, and plaintiff is a son of the intestate by a former marriage and no relative of the deceased. The necessary and ordinary allegations of the appointment of administration were alleged. To this state of facts the defendant demurred, as not alleging facts sufficient to constitute a cause of action, which was sustained at a special term of this court, but reversed at a general term, Chief Justice Ehrlich writing the opinion, which was filed March 10, 1891, and Order and judgment of reversal entered March 16,1891. This general term holding that, upon the face of the complaint no action appearing showing an intent of deceased to have the policy go elsewhere than to the personal representatives of the wife, the action was properly brought by them. Adopting the decision of the general term, the defendants thereupon paid $132 costs and answered over, denying that any policy had ever been issued to the plaintiff’s intestate, “Maria” Wurster, and alleging an assignment of the moneys under the policy to William Schweikert, after the death of Maria Wurster, the wife, and also a last will and testament by Christian Wurster, the insured, specifically bequeathing the insurance money to William Schweikert, and that the moneys had been paid to the executor under the will. On the trial, the defendant attempted to introduce evidence to meet the requirements of the general term opinion and carry out the idea of, and acts of Christian Wurster, which would have showed not only an intention to have this insurance money go contrary to the implied intention of the law {i. e., to the personal representatives of the wife), but did actually convey, transfer, assign and bequeath this insurance money to William Schweikert, a person other than a representative of the wife, viz.: a step-brother of the deceased insured. The justice directed a verdict against objection and exception of the defendant, and refused defendant’s request,to go to the jury on the facts as to the intention of the insured, and also on the question as to who should have these insurance moneys. This is not a case where it is provided that in case of the death of the wife before the insured it shall go to the children or her representatives, nor is it the case of the wife insuring the life of her husband for her sole use and benefit, and thus, in my judgment, not affected by statute law. The intention of the insured when he took out this policy was to make a provision for his wife only and no one else, in case lie should die before her. In Baker v. The Union Mutual Life Ins. Co., 43 N. Y. 286, Allen, J., says: “The insurance was affected by the husband for the benefit of his wife, and as a provision for her in case of his death. He was the party contracting with the defendants, and the consideration for the agreement to insure proceeded from him, not from his wife. The statutes of this state authorize a married woman to insure the life of her husband for her own benefit, and declare that -the insurance shall be payable to her free from the claims of the representatives and creditors of her husband; but the exemption is restricted to policies upon which the annual premium shall not exceed $300.” Laws of 1840, chap. 80; Laws of 1858, chap. 187. “But the plaintiff had an-interest in the life of her husband, and an insurance procured by him for her benefit is goodjat common law. The policy would not be void as a gaining policy. This policy does not purport to have been effected or procured by the wife, or at her instance. The deceased had an insurable interest in his own life, and could lawfully insure for his own benefit or in favor of any -one having an interest in his life as wife, child or creditor, and could secure the insurance to the party intended to be benefited, either by taking a policy iiaming such intended beneficiary, or by taking a policy payable to himself or his representatives and transferring it.”

In Olmsted v. Keyes, 85 N. Y. 598, Earl, J., says: “ This policy was taken out by Lester for the benefit of his wife. It was an insurance on his own life for her benefit. While one cannot insure a life in which he has no interest, every person can insure his own life for any sum upon which he can agree with an insurance company. A life insurance is not like fire insurance, a contract of indemnity, but a mere contract to pay a certain sum of money on the death of a person in consideration of the due pay: ment of certain annuity for his life.” Dailey v. The India and London Life Ass. Co., 28 Eng. Law Eq. 312 ; Rawls v. Am. Life Ins. Co., 36 Barb. 357; S. C., 27 N. Y. 282 ; Ins. Co. v. Bailey, 13 Wall. 516.

Like every other contract to pay money, such a policy is a chose in action with all the' ordinary incidents of every other chose in action. It is abundantly settled in this state, that one who takes an insurance upon his own life may make the policy payable to any person whom he may name in the policy, and again at page 602 he says: “All the choses of the wife not reduced to possession during the joint lives, by the common law passed to the husband on her death—rail without any exception— and there is no authority to the contrary, and this is true whether such choses are then payable or are mere reversionary or contingent interests payable at a future day, or mere possibilities. He may then release them or take payment of them without administration, if he can get payment. If administration is needed to reduce the choses to possession, he is entitled to it, and if there are no debts the administration is solely for his benefit. If, after his wife’s death, the husband does not release, assign, or reduce to possession her choses in action during his lifetime, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.” The wife’s interest in this policy was a chose in action. At her death it passed to her husband. He had a right then to assign, transfer or will it as any other chose in action. And where he failed to administer on the same, the obligation of the insured would be enforceable by the personal representatives of the husband. See Walsh v. The Mutual Life Ins. Co., 133 N. Y. 419; 45 St. Rep. 123. In all the cases where it has been held that it went to the personal representatives of the wife, as in Whitehead v. New York Life Ins. Co., 102 N. Y. 143; 1 St. Rep. 344, and others, the contract was made with the insurer by the wife on the life of the insured, for her sole use and benefit, or, the insured simply acted as her agent, and in almost each case the beneficiary and substitute are mentioned. All these cases and .distinctions are clearly and fully discussed in Walsh v. Mutual Life Ins. Co., supra. That is not this case. In determining the question on the former appeal, which was on a-demurrer to the complaint, the court wqs only passing on the sufficiency of the pleading, and did not have before it the contract or policy of insurance or other evidence presented on the trial, and which the plaintiff (if he succeeds) must have before the court as well as his complaint. ■ The one paves the way, the other is the substance and material, upon which the structure must stand or fall. The evidence and facts not being alike, there is not conflict with the former decision. For these reasons we think the trial judge erred in directing a verdict for the plaintiff, and judgment should be reversed and new trial granted, with costs to abide the event.

Ehrlich, C. J. and Van Wyck, J., concur.


text:
    Joseph Warren, an Infant, etc., Resp’t, v. Raymond Chase, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Costs — Taxation.
    In a case where the costs cannot exceed the damages, they, including the disbursements, cannot be taxed in excess of that amount.

      Mooney & Shipman, for app’lt; Thomas H. Bowlette, for resp’t.
   McCarthy, J.

The decisions are uniform that disbursements as allowed by law were always allowed by law as costs to the party entitled to recover costs. They cannot as in this case exceed the damages. § 3228, sub. 3, Code of Civil Procedure. We are clear that the justice erred in allowing the insertion of the disbursements in this case. The,plaintiff having recovered six cents for damages was only entitled to six cents costs, no matter what might be his disbursements.

The orders appealed from should therefore be reversed and the clerk’s taxation reinstated and affirmed.

Ehrlich, C. J., and Van Wyck, J., concur.


author: Ehrlich, C. J.

text:
    Edward Webber, Resp’t, v. Eugene S. Gotthold, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Bills and notes—Protest.
    Where an indorser has not indicated under his indorsement any specific place to which the notice of protest should be sent, it is sufficient to direct it to the city in which he resides.
    Appeal from judgment entered on verdict in favor of the plaintiff.

      Henry Cooper, for app’lt; H F. Lawrence, for resp’t.
   Ehrlich, C. J.

The making and endorsing of the note having been clearly established, the only question to be considered is as to the service of notice of protest on Mrs. Cotes, the appellant. The notice was addressed to Mrs. Cotes at New York city, duly mailed by depositing the same in the General Post Office and prepaying the postage. The note was drawn at New York city, dated there, and made payable there, and the appellant resided at that place at the time. The defendant, as indorser, not having indicated under her indorsement any specific place to which the notice should be sent, the law was sufficiently complied with by directing it to the city in which she resided. As the proof of service of the notice answers all legal requirements, there being no error in the rulings the judgment appealed from must be affirmed, with costs.

Van Wyck and McCarthy, J. J., concur.


author: Van Wyck, J.

text:
    Caroline Wilson, App’lt, v. Blumemthal, as Receiver, etc., Resp’t.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    .Appeal—Evidence.
    Where, in an action of interpleader by the wife of the judgment debtor against the judgment creditor for a deposit in bank, the testimony of the plaintiff and her husband, who were the only witnesses in her favor, bore such marks of incredibility as, standing alone and uncontradicted, might well have been disregarded, but was contradicted by her admissions, the judgment in favor of the defendant will not be disturbed as being against the evidence or weight of evidence.
    Appeal by plaintiff from judgment, on findings of fact and conclusions of law, filed by the judge, and decreeing that the defendant was entitled $o the fund on deposit with Seamans Savings Bank.’?

      James A. Peering, for app’lt; Daniel P, Hayes, for resp’t;
   Van Wyck, J.

This action was originally against Seamans Savings Bank, for a deposit claimed by plaintiff and also claimed by defendant as receiver of the property of the judgment debtor, Alanson Wilson, plaintiff’s husband, and by interpleader, such receiver was made defendant instead of the bank. The cause was tried at the equity term and the judge’s findings will not be disturbed because they are not against the evidence or the weight of evidence. The plaintiff and her husband, the judgment debtor? were her only witnesses, and he testified that he had on deposit in the bank in May, 1889, the sum of $1,059.87, evidenced by a pass-book in his name, and that he then owed his wife about $1,100 and delivered this pass-book to her, for such indebtedness, but he said he could not give the dates when the sums were lent to him by her at various times, nor any of the specific amounts, and that the account was not changed at the bank, nor the bank notified of such transfer, and that he himself, drew in September, 1889, $925 from this amount, but by his wife’s consent and as a loan from her, which left the balance of $134 still in bank, and that afterwards and between April and November, 1891, he made four deposits aggregating $400, but that these sums were hiswife’s money handed to him by her for deposit; however she testifies that she does not • remember whether these deposits were made or not, and that she did not so deposit, and that if they were made that he made them and both testify that in 1892, by her consent and as a loan from her, he drew $150 from the bank account, which left $384 on deposit. Both say that the bank was never notified of the alleged transfer, and that the husband in person drew all amounts and made all deposits; but that the moneys were drawn by her consent and used by the husband. The wife is the plaintiff claiming the fund, and the husband was the judgment debtor and deeply interested in the result, and the very testimony of both bears marks of incredibility, and standing alone and uncontradicted, might well have been disregarded by the judge trying both facts and law. But the judgment creditor testified that in .August, 1892, the wife plaintiff, told him that her husband had money in the Seaman’s Savings Bank, and that he was drawing it out and giving it to his son by a former wife, and that then was the first time that he had seen a chance of collecting anything on the old judgment which he held against the husband for $3,000, and Erhardt, a disinterested witness, testified that" he heard this conversation between the wife and judgment creditor. The findings of fact are justified by the evidence, and as the questions asked on the cross-examination of the judgment creditor were properly excluded, the judgment is affirmed, with costs.

Ehrlich, C. J., concurs.


author: Haight, J.

text:
    Harriet Cooper et al., Resp’ts, v. Caroline Monroe et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Statute of frauds—Part performance.
    Possession of land, under an agreement to convey in payment for services, in case the statute of limitations has run against such claim, is such part performance as to take the case out of the statute of frauds.
    3. Witness—Competency—Section 839.
    The right of curtesy initiate does not disqualify the husband, under §839 of the Code, from testifying in favor of his wife as to communications with decedent concerning her land.
    Appeal from an order granting a new trial on the minutes of the court after a verdict in favor of the defendants.
    A W. Mason, for app'lt Caroline'Monroe; A. B. Oitoiuay, for app’lt Simon Monroe; H. C. Kingsbury, for resp’ts.
   Haight, J.

This action is in ejectment to recover the possession of a house and lot of the value of about $450, in the village of Westfield, known as “TheExchange.” Henry Walker was the owner of the premises in question. The plaintiffs claim title as devisees under the last will and testament of Walker, which has been duly proved and admitted to probate. The appellant Caroline Moproe claims to be the equitable owner and entitled to retain the possession of the premises. The defendant “Simon Monroe is her husband. Henry Walker and Caroline Monroe were brother and sister. The evidence produced upon the trial on the part of the defendants tends to show that in the year 1868 Walker and the defendant Caroline had a mother that was aged and sick; that Walker then told Caroline that if she would take their mother home with her, and take care of her, he would pay her well for it; that she thereupon took her mother to her house, and cared for her until the time of her death, which was in the year 1874. In May, 1889, the defendants were living in the city of Buffalo, and Walker then agreed with the defendant Caroline to give her the house and lot in question for a home, in payment for what he owed her for taking care of his mother, and wanted her to remove from Buffalo to Westfield, take possession of the house and lot, and occupy it as her home; that in June following she did so, and has so continued to occupy the same ever since. In May, 1890, Walker executed his last will and testament, in which he first directed the payment of his debts, and then gave, devised, and bequeathed all the rest, residue, and remainder of my estate, both real and personal, to my sister, Harriet P. Cooper, and my nieces Mrs. Lucy Edes and Sarah Cooper, share and share alike.” In June following he suddenly died from an injury received.

The only evidence offered on behalf of the plaintiffs aside from the records was to the effect that Walker had in his lifetime kept the property insured in his own name. The case was submitted to the jury, and the verdict was in favor of the defendants. The trial court ordered a new trial upon the ground that the evidence was not sufficient to sustain the verdict. The reasons stated in the opinion written by the court are as follows:

To free the case from the operation of the statute it must appear that the purchaser expended money or made improvements which he would not have done except in reliance upon performance by the seller, and to recover for which he is remediless. The pay ment of the consideration and the simple act of taking possession has been held not to be such a part performance of the contract upon the part of the purchaser as to invoke the power of the court to decree specific performance.” Citing Lowry v. Tew, 8 Barb. Ch. 407; Malins v. Brown, 4 N. Y. 403—410; Freeman v. Freeman, 43 N. Y. 34; Miller v. Ball, 64 N. Y. 286; Hutchins v. Hutchins, 98 N. Y. 56-66 ; Haight v. Child, 34 Barb. 189; Winchell v. Winchell, 100 N. Y. 159.

We do not understand these cases as they appear to be understood by the trial court. In none of them was this question presented for determination. In Malins v. Brown, supra, the judge writing the opinion says that “payment of the purchase money and being let into possession are sufficient,” citing the ease of Dugan v. Gittings, 3 Gill. 138-157; and the same expression was used by this court in the case of Devinney v. Corey, 23 St. Rep. 308 ; 5 N. Y. Supp. 289. Several of the elementary writers, and some of the decisions of the courts in other states, appear to support these expressions. Our view of the question is that the payment of the consideration to the vendor and the delivery of the possession by him to the vendee may in some cases, and in others not, be sufficient performance of the contract to enable the purchaser to invoke the power of a court of equity to decree specific performance. In Lowry v. Tew, supra, the chancellor says:

“ The principle upon which courts of equity hold that a part performance of a parol agreement is sufficient to take the case out of the statute of frauds is that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid because it was not in writing ; * * * in other words, upon the ground of fraud in refusing to execute the parol agreement after a part performance thereof by the other party, and where lie cannot be placed in the same situation that he was in before such part performance by him. Taking possession under a parol agreement, and in compliance ■with the provisions of such agreement, accompanied with other acts, whiph cannot be recalled, so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the operation of the statute of frauds."

The question is, therefore, as to whether the vendee, in taking possession of the premises, has done any act for which he cannot be fully compensated in an action at law. If he has expended money in placing permanent improvements upon the premises or paid the taxes thereon, he could not recover therefor in an action at.law, and to deprive him of the premises would be a fraud upon him where the improvements were made and the taxes paid upon the reliance of the parol agreement of the vendor to convey the lands to him. Ordinarily the payment of the consideration in whole or in part could be recovered back in an action a,t 'law, but in case the vendor had in the mean time become insolvent, or if the statute of limitations had run against the plaintiff’s claim, the vendee could not be restored to the same situation that he was in before the agreement, and to restore the premises to the vendor under such circumstances would operate to defraud the vendee of the money that he had' paid thereon. In such case we think equity would have power to compel specific performance, and that this view is in accord with the general doctrine of the cases referred to. Kenyon v. Youlen, 25 St. Rep. 299; 6 N. Y. Supp. 784.

Again referring to the facts of this case, we find that Walker gave the premises to the defendant Caroline in payment for what he owed her in taking care of his mother. This was a legal obligation. He had agreed to pay her in case she would take his mother, and take care of her. She performed on her part. It is the duty of children to take care of their aged and indigent parents. Walker, in promising to pay for the care of his mother, was but performing a duty that rested upon him. The defendant Caroline accepted the premises as payment upon such indebtedness. The services were rendered in 1874,—nearly 20 years ago,— and the inference is that the statute of limitations has now run against the claim; so that, if she is now deprived of the premises, she must lose her claim for services rendered. It may be said that the statute of limitations had run when the agreement was made. Whether it had or not we'are unable to determine from the evidence presented. No claim of that character appeal’s to have been made upon the trial, and, if there had been, we think it would have made no difference, for Walker had the right to waive the statute, and recognize his obligation to pay, and this he appears to have done by the agreement in question. It is therefore apparent , that if she now be deprived of the premises, she will lose her claim for services. This would be a fraud upon her which equity has the power to prevent. If the facts are such that equity would afford her relief, she may avail herself of them as an equitable defense to this action. Cavalli v. Allen, 57 N. Y. 508.

An exception was taken to the evidence of Simon Monroe as to conversations had with Walker in reference to the conveyance of the premises in question to the defendant Caroline. It was claimed that he had such an interest as would disqualify him under § 829 of the Code; that he might become entitled to a life estate as tenant by curtesy. This question was fully considered by this court in Re Clark, 40 Hun, 233-237, and the conclusion was then reached that the husband did not have such an interest in the real property of his wife as to disqualify him from being a witness. A different conclusion appears to have been reached by this court in the case of Devinney v. Corey, supra, but the question does not there appear to have been fully considered, or the attention of the court called to the former decision. Children may become heirs at law of their parents, and as such entitled to the real property of which the parents may die seized, but during the lifetime of the parents the children are not vested with any interest in the real estate, and are consequently not disqualified, under the provisions of the Code, from testifying; and the same, we think, may be said in reference to a husband. He has no present interest. The wife may convey or devise by will, and thus deprive him of any estate that he otherwise might have had upon her death. In order to be disqualified under the Code, the witness must have a present, certain, and vested interest, not an interest remote, uncertain, or contingent. Hobart v. Hobart, 62 N. Y. 80; Nearpass v. Gilman, 104 N. Y. 507; 5 St. Rep. 745; Wallace v. Straus, 113 N. Y. 238-241; 22 St. Rep. 984. See also Whitman v. Foley, 125 N. Y. 651-659 36 St. Rep. 133. The order appealed from should be reversed, and judgment ordered for the defendants upon the verdict. All concur


text:
    Henry H. Gee, Resp’t v. Hiram J. Torrey et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Limitation—Commencement op action—Mechanic’s lien.
    Section 3 the Code applies to a proceeding to foreclose a mechanic’s lien under tne Act of 1880, and it will be deemed to commence when notice is delivered to the sheriff for service.
    Appeal from a judgment in favor of plaintiff.

      Frederick II. Church, for app’lts; Rufus Scoot, for resp’t.
   Haight, J.

— This action or special proceeding—whichever it may be—was brought or commenced to foreclose a lien given by chapter 440 of the Laws of 1880, known as the “Oil Well Mechanic’s Lien Act.” The plaintiff had erected for the defendants a derrick to be used for the drilling of an oil well upon their lands. On the 31st day of May, 1883, and within sixty days after completing the work, the plaintiff filed a notice of lien, under which he acquired a valid lien, under the act. Within six months after filing such notice of lien, the plaintiff delivered to the sheriff, for service, a notice containing a statement of the facts constituting his claim, and the amount thereof, on the property of the defendants, and requiring them to appear, in person or by attorney, within thirty days and answer the same, or in default thereof, that he would take judgment against them for the amount claimed to be due, etc. This notice was served on the defendant Hiram J. Torrey, December 1, 1883, and on the defendant, Horace Davis, December 10, 1883, the first service being one day after the expiration of six months from the filing of the notice of the lien. The defendants, in their answer, set up the six-months statute of limitation provided for,in § 10 of the act. The-provision is as follows:

“Every lien created under the provisions .of this act shall continue until the expiration of six months from the time of filing the notice prescribed in the second section .of this act, unless sooner discharged by the court or some legal act of the claimant in the proceedings; but if within such period of six months proceedings are commenced to enforce or foreclose snch lien, then such lien shall continue until judgment shall be rendered thereon, and for one year thereafter. Such lien shall also continue during the pendency of an appeal, and for one year after the determination thereof.”

It will be observed that the provisions of this section do not designate or specify what shall be deemed a commencement of proceedings. Controversy has arisen as to whether the remedy provided by this act was an action or a special proceeding; but, under the view taken by us, it is unimportant, so far as the determination of the question under consideration is concerned. In the section quoted the word “proceedings” is used, while in ofher sections the word “action” is usedj and, after issue is joined, the provision is to the effect that the case shall be governed and tried in all respects as upon issues joined and judgment rendered in other actions arising on money demands upon contracts. We recognize -much force in the argument that under these provisions the remedy provided is by an action, and that the word “proceedings,” used in the' provisions of the section quoted, was used through inadvertence, and without intent to change the remedy from an action to a special proceeding. But passing this question, for a consideration of the one involved, we find that under the provisions of § 5 the owner of the lien, if the claim exceeds $50, may— “ Bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, to enforce such lien, which action shall be commenced, and the proceedings therein conducted, and judgment entered, in the same-manner and to the same effect as in actions brought in said courts to enforce liens provided by chapter 402 of the Laws of 1854, and the several acts amending the same.”

By § 6 of chapter 402 of the Laws of 1854 it is provided that such action— “ Shall be commenced by serving a notice containing a statement of the facts constituting the claim, and the amount thereof, on the owner of the property „or his agent, requiring the said owner to appear in person or by attorney within thirty days after such service and answer the same, and serve a copy of such answer, together1 with a notice of any set-off that he may have, on the claimant or his attorney, or, in default thereof, that the claimant will take judgment against the said owner for the amount claimed to be due for the labor performed or the material furnished, with interest thereon, and costs.”

Section 399 of the Code of Civil Procedure provides that:

“ An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff,” etc.

The question is as to whether this provision of the Code applies to the notice authorized by the statute referred to. It is said that these provisions of the Code apply to actions only. It is true that the word “ action,” only, is used; but it is a part of the provisions of chapter 4, tit. 3, of the Code. The concluding clause of subdivision 4 of § 414 of the same chapter and title provides that:

“ The word ‘ action ’ contained in this chapter is to be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein, or in an action.”

Under this provision, we are authorized to construe the word “ action ” as also meaning “ special proceeding.” But an action is ordinarily commenced by summons. Special proceedings may be instituted by summons, petition, or notice. Giving to the word “ action ” the broader meaning provided for, section 399 must be understood as providing an attempt to commence an action or a special proceeding in a court of record is equivalent to the commencement thereof against each defendant, within the meaning of the provision of this act which limits the time for commencing an action when the summons, or the instrument upon which the special proceedings are founded, is delivered, with the intent that it shall be actually served, to the sheriff.

Again, it is contended that under § 414 of the Code the provisions of the mechanic’s lien act are excepted from the provisions of the chapter of which § 399 is a part. We do not so understand it. It is as follows :

“ The provisions of this chapter apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: (1) A case where a different limitation is specially prescribed by law.”

The mechanic’s lien act, as we have seen, has a different limitation specially prescribed. It is therefore within the provisions of the exception. But, were it not for its exception, its different limitation would have been repealed by implication, for the provisions of this chapter constitute the only rules of limitation applicable to a civil action or special proceeding. But the exception preserves the different limitation, and the meaning of the section is the same as if it read: “ The provisions of this chapter, and the-cases in which a different limitation is specially prescribed by law, ■constitute the only rules of limitation applicable to a civil action or special proceeding.” As thus understood, the limitation of the mechanic’s lien act is preserved; and, if so, it appears to us that § 399 of the Code applies, and the delivery of the notice to the sheriff for service within the six months must be deemed equivaient to the commencement of the action or proceedings, under the provisions of § 10 of the statute referred to. This view makes the practice uniform, and is in accord with the result reached in Hammond v. Shephard, 50 Hun, 318; 19 St. Rep. 818. The judgment should be affirmed, with costs.

All concur.


author: Haight, J. Bradley, J.

text:
    Hiram F. Henry, App’lt, v. Norman M. Allen, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Bill and notes—Memorandum checks.
    The drawer can only become liable on memorandum checks by their transfer by the payee to a purchaser in good faith for value in the regular course of business, without notice of the arrangement under which they ■were issued.
    3. Principal and agent—notice.
    The principal ought to know that his agent is depositing his money in the latter’s name from the fact that checks issued therefor are issued to him and made payable to his order.
    8. Same—Knowledge.
    The principal is chargeable with the knowledge possessed by his agent and the manner in which he transacts the business placed in his charge.
    Appeal from a judgment dismissing the complaint on the merits.

      Shei-man S. Rogers, for app’lt; William II Henderson, for resp’f.
   Haight, J.

— This action was originally commenced against Norman M. Allen and Hoyt M. Allen as co-partners engaged in the business of banking at Dayton, N. Y, under the iirrn name of Norman M. Allen & Son, but since this appeal was taken Hoyt M. Allen died. The action was brought to recover the sum of $27,999, being the amount of thirty-three instruments in writing, each of which was in the following form, omitting dates and amounts

“$-- Dayton, N. Y. ,-, 188—.
“ Norman M. Allen & Son, Bankers.
“ Pay to the order of F. Monson--dollars.
“ N. M. Allen & Son.”

The plaintiff resided in the village of Gowanda, distant about four miles from the residence of the defendants, but had no personal acquaintance with either. One Forbes Monson, the person named as payee in the instruments sued upon, also resided in the village of Gowanda, with whom the plaintiff was intimately acquainted. On the 12th day of March, 1886, the plaintiff was the owner of three certificates of deposit issued by the Bank of Gowanda, one of which was for $1,163.54, and the other two for $1,000 each. Chiefly through the representations of Monson, lie had become suspicious of the solvency of the bank, and decided to withdraw his money therefrom. He accordingly entered into an agreement with Monson by which he was to deliver to him his three certificates of deposit for the purpose of having him withdraw the money from time to time, in such manner as not to create a suspicion on the part of the officers of the bank of his purpose,- or of where the same was to be placed, and to deposit the same with Horman M. Allen & Son. It was further arranged that from time to time thereafter he should send or deliver the, money that he might be able io save from his business as showman while upon the road ; and that Monson, acting for and on his behalf, should take it to the defendant’s bank, and there deposit it, and, as the referee has found, to send or deliver to him for each deposit so made either his individual check or the check of the defendants indorsed by Monson for the amount of each deposit; that Monson should have charge of that branch of his business, and of making deposits with the defendants, and of negotiating with them in reference. thereto, and of looking after the same, and, when the amount so deposited should aggregate the sum of $5,000, a loan to the defendant Horman M. Allen should be made therefor upon a bond secured by a mortgage upon real estate. As a part of such arrangement it was agreed that Monson should pay him six per cent, interest on all sums delivered to him for deposit. Pursuant to this arrangement he delivered to Monson -the three certificates of deposit and from time to time thereafter, up to the 4th day of March, 1889, sent by letter and delivered to Monson various sums of money for deposit with thé defendants, amounting in the aggregate to $27,999, which sums he charged to Monson as the same were remitted to him from time to time. On the 12th day of March, 1886, Monson opened an account with the defendants in their bank by making a deposit to his own credit therein of a part of the proceeds of one of the certificates of deposit delivered to him by the plaintiff, and from time to time thereafter made other deposits to his own credit of the various sums that he received from the plaintiff. In making such deposits- he procured from the defendants the thirty-three instruments upon which this action is founded, each instrument being filled out with the date and the amount of the deposit. In order to procure the same, he stated and represented to the defendants that the money was his own ; ■ that he was a co-partner of the plaintiff in his business, and that the money had been received by him as his share of the profits in the business ; and that he desired the instruments solely for his own accommodation, and as a memorandum only, to be used by him in his settlement with the plaintiff after which he would return the same to the defendants; and that they should not be transferred or delivered to any person or persons; and that neither of them should have any legality as commercial paper, and that _ neither should be a valid or binding obligation on the part of the defendants, or either of them. The referee has found that these representations were made with a fraudulent intent and purpose, to induce the defendants to execute and deliver to him the instruments in question, and that the defendants, relying upon such statements and representations, believing them to be true, were induced to make and did make, and deliver to Monson from time to time, the instruments in question, neither of which was charged up to him or his account; that he paid nothing therefor and that each and every one of them was and is entirely without consideration. It further" appears that, shortly after the receiving of each of such instruments, Monson wrote upon the back thereof to pay' to the order of the plaintiff, and signed his name thereto, and either mailed or delivered the same to the plaintiff, who received each instrument believing that Monson had deposited his money according to the terms of their agreement, and had procured each of the papers in consideration of such deposit. The plaintiff retained the instruments, and did not present them to the defendants for payment until the 12th day of February, 1891, when they were all presented together for payment by the plaintiff’s attorney. .In June, 1886, Monson paid to the plaintiff the interest on all moneys delivered to him up to July 1, 1886, at tiie rate of six per cent, and continued to pay such interest quaiterly upon all moneys received by him, up to January 1890. The defendants had no knowledge or information of the agreement existing between the plaintiff and Monson, or that the plaintiff had, or claimed to have, any interest in the money so deposited, ■ or that said instruments had ever been delivered to the plaintiff, until February, 1891. Lin the mean time Monson had checked out all the money deposited by him to' his credit with the defendants, and oh the 9th day of February, 1891, absconded. 11

Some criticism has been made upon the findings. It is said that the plaintiff never agreed to accept the individual check of Mon-son. For the first money derived by Monson upon one of the certificates of deposit delivered to him by the defendants he mailed to the plaintiff his individual check, inclosed in a letter, in which he appears to have apologized'for not procuring it to be certified, pleading as an excuse that he had forgotten to do so. To this the plaintiff replied,- saying : “ There is no earthly need of your having your check certified. Why, what an idea ! I don’t want your checks at all.” Thereafter Monson appears to have procured the defendants’ checks payable to his order, which he indorsed over to the plaintiff. The plaintiff testified that, in his conversation with Monson, Monson wanted to know of him if H. M. Allen’s check would be security; that he told him he would make inquiries, and subsequently told him that he would take H. M. Allen &'Son’s checks, provided he would indorse them; and that they began the businses with that understanding. It is, therefore, apparent that the plaintiff did not agree to take the individual check of Monson, but that the understanding was that he should take the check of the defendants, indorsed by Monson. It appears that Monson paid plaintiff the interest, the referee finds, down to January 1, 1890. That is the, last date of payment shown by the receipts, but it is claimed by the appellant .that it appears from the letters written by the plaintiff to Monson that the interest was paid down nearly to the time that Monson absconded. Under the view taken by us, this variance is unimportant. The plaintiff knew that Monson was paying the interest on his deposits. He testified that he supposed that Monson in some way obtained the interest frtini Allen. But his letters leave this question in some doubt, for he had the defendants’ check for each deposit in his possession, and these checks contained no promise J;o pay interest. In several of his letters to Monson he speaks of the interest, and expresses some doubt as to whether he ought to take interest from him. In his letter from Bangor, under date of “ 10-3-'87,” he says:

“ Just received yours 6th, mentioning payment to Leonard of §172.50, to my credit, same being interest on my deposits, as understood. I feel rather sheepish in this interest matter, but I presume, as long as you are bound to do it, I shall have to accept it. Inclosed find, my receipt for the same. With every appreciation, believe me, truly, Henry.”

And again, from Perth Amboy, October 5th (the year not given), he writes:

“ I don’t feel right to take interest from you on money that is actually a bother to you. I don’t want your friendship to extend to such matters.”

We shall, however, assume, for the purposes of this review, that the plaintiff supposed that Monson had procured the interest which he paid him from Allen & Son.

It is also claimed that the referee erred in finding that the defendants had no knowledge that the money deposited with them by Mons m. belonged to the plaintiff. It is claimed that Henry wrote a letter to Allen & Son about the time that Monson commenced depositing the money with them, in which he stated, in substance, that Monson had influenced him to withdraw his funds from the bank of Gfowanda, and to place them in the defendants’ bank; that Monson was a great friend of his , and very enthusiastic over his success, but wanted the matter to be strictly a business matter. He, however, kept no copy of the letter ; could not tell at what place he wrote it; his correspondence was very voluminous ; and that he could not be certain as to the exact contents of the letter. H. M. Allen testified that he remembered receiving a letter from the plaintiff ; that he was unable to find it among his files ; that he thought he had passed it over to Monson ; that he could not recall the contents of the letter further than that it conveyed to him no idea that the plaintiff had withdrawn any money from the Bank of Go wan da to be deposited with them through Monson. The referee appears to have believed the defendants’ testimony, and where there is a conflict between two interested parties it is our usual practice to follow the findings. We must, therefore, treat the instruments in suit as memorandum checks issued by the defendants to Monson without consideration, and in his hands creating no liability against the defendants. They could only become liable thereon by a transfer of the checks by Monson to a purchaser in good faith for value in the regular course of business, without notice of the arrangement under which they were issued. Is the plaintiff such a holder? It is not shown that he had actual knowledge of the facts under which they were issued, but it is found as a fact that he had constituted Monson his agent to take his money and deposit it with the defendants, and this we do not understand to be controverted. By delivering his money to Mon-son he invested him with the indicia of title, and thus enabled him to induce the defendants to believe that the money belonged to him. As we have seen, he took the money to the defendants, represented it to be his, deposited it with them, had credit given to himself in his individual account, and' subsequently withdrew it upon his own checks. Were it not for the checks, it would not be claimed that the defendants, after the repayment of the money so deposited by Monson, to him, were liable to the plaintiff. Their liability is sought to be established through the memorandum checks, but, as we have seen, they were induced to believe that the money belonged to Monson, and were induced by him, at the time of making the several deposits, to issue to. him the memorandum checks in question under the representation that they would be kept by him, and not delivered to any other person. Monson exceeded his authority as agent of the plaintiff, and, as found, intended to defraud the defendants. He did not deposit, the money in the name of his principal, as hev was expected to do. He procured the checks upon the representation stated and did not disclose that fact to the plaintiff ; but he was authorized h> take the money to the defendants, to ■ deposit it, to procure their checks therefor, to indorse the same, and to return them to the plaintiff. The plaintiff ought to have known that Monson was depositing the money with the defendants in his own nanje from the fact that the checks issued therefor were issued to him and payable to his order. This fact should have caused him to make inquiry, but he appears not to have done so, but to have rested under the belief that his agent had properly performed his duty. The rule, as we understand it, is that the principal is chargeable with the knowledge possessed by his agent, and the manner in which he transacts the business placed in his charge ; and, as appliéd to the facts of this case, the plaintiff must be charged with notice of the facts under which Monson procured the memorandum checks to be delivered to him by the defendants.

. Story on Agency, at § 140, says:

“ Upon a similar ground, notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject matter of his agency; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal; and, if he has not, still the principal having intrusted the agent with the particular business, the other party has a right to deem his acts and knowledge obligatory upon the principal, otherwise the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights and interests of such party.”

And again, at § 419, he says:

“ This doctrine applies, a fortiori, to every case where the agent does not contract in his own name, but solely in the name of his principal; for in such a case the principal is not only the contracting party, but he is the sole contracting party exclusive of the agent, and is alone competent to sue or enforce any other remedy thereon. In all cases of this sort, however, the principal, while he is entitled to all the advantages and benefits of the contract of his agent, must take them with all the attendant btirdens, and subject to all the attendant advantages, counterclaims, and defenses of the other contracting party. Thus, if the contract of the agent is impeachable on account of the fraud, imposition, misrepresentation, or other misconduct of the agent, the principal is affected with all the consequences thereof, and cannot avail himself of his own innocence to support what would otherwise be an unfounded or defective title. So, if the agent has sold goods in his own name, no other person being known as principal, and the agent agrees at the time of the sale that the vendee may set off against the price a debt due to him by the agent, that set-off will be as good against a suit brought by the principal as it would be if the suit was brought by the agent for the price.”

And again, at § 420, he says:

“Neither will it make any difference in such cases * * * that the principal at the time of entering into the contract is known or unsuspected; nor that a third person has dealt with the agent, supposing him to be the sole principal. The only effect of the last consideration is that the principal will not be permitted to intercept the rights of such third person in regard to the agent, for he must take the contract, subject to all equities, in the same way as if the agent were the sole principal. Thus, for example, if the agent is the only known or supposed principal, the person dealing with him will be entitled to the same right of set-off as if the agent were the true and only principal. But,' subject to these rights, and those of the agent himself, the principal may generally sue upon such a contract, in the same manner as if he had personally made it.”

Mechem in his work upon agency, at § 773, says:

“ But if the principal would avail himself of the benefits of a contract made by an agent in his own name without disclosing his principal, he must also assume the responsibilities' of the contract. He must take the contract as it exists at the time he interposes, and subject to all the rights which the other party then possessed against the agent. In the homely but expressive language of a learned judge, the principal must 1 step into the shoes of the agent.’ Hence, where a third person, who has entered into a contract with the agent in ignorance of the fact that he was not the real principal, as he assumed to be, is sued upon the contract by the principal, he may avail himself, as against the principal, of every defense, whether it be( by common law or statutes, which existed in his favor against the agent at the time the principal first interposed and demanded performance to himself. This right is not affected by the fact that the agent, in thus entering into" the contract in his own name without disclosing his principal, acted in contravention of the express direction of his principal.”

In the case of Bank v. Davis, 2 Hill, 451, the action was brought to recover the amount of two bills drawn by the defendant. It appears that these bills were transmitted by the drawer to Williams, one of the directors of the bank, for the purpose of having them discounted for the benefit of the former; that Williams put his own name upon the paper, and procured it to be discounted for himself, and appropriated the avails. At the time he was one of the five directors of the bank constituting the board of discount. • His associates had no knowledge of his fraudulent use of the bills. It was held that the bank could not recover. ¡Nelson, O. J., in delivering the opinion of the court, says:

“The general rule is undisputed that notice to the agent is notice to the principal, if the agent comes to the knowledge of the fact while he is acting for the principal in the course of the very transaction which becomes the subject of the suit; for upon general principles of policy it must be taken for granted that the principal knows whatever the agent knows. There is no difference between personal and'constructive notice, except in respect to the guilt; for, if there were, it would produce great inconvenience, as notice might be avoided in every cause by employing an agent. * * * It is said, however, that Williams was but one of the five empowered by the bank to represent it in this , transaction ; that the bank is not, therefore, to be held responsible for his individual fraud_at the time, nor can it be chargeable with his knowledge of the facts under which the paper in question was discount-' ed ; and that such knowledge is chargeable only when the agent has full power to act for the principal in the particular case. It is not to be denied that, if the principal employs several agents to transact jointly a particular piece of business, he is equally responsible for the conduct of each and all of them, while acting within the limit and scope of their power, as completely so as he would be for the conduct of a single person upon whom the authority had been conferred. He cannot shift or avoid this responsibility by the multiplication of his agents. It is also clear that the corresponding responsibility of each of the several joint agents to the principal for the faithful discharge of their duties is as complete and perfect as in the case of a single agency ; and any prejudice to the principal arising from fraud, misconduct, or neglect of either of them would afford gropnd for redress from the party guilty of the wrong. These are general, conceded principles, for which no authority need be cited. One of the grounds for charging the principal with the knowledge possessed by the agent is because the latter is bound to communicate the fact to the former, and is liable for any prejudice that may arise from a neglect in this respect; and hence the law presumes that the principal has actual notice.”

In Hyatt v. Clark, 118 N. Y. 563, 569; 29 St. Rep. 851, it is , said by Vann, J., after quoting from Story on Agency:

“In other words, she was chargeable with all the knowledge that her agent had in; the transaction of the business he had in charge.”

In Adams v. Mills, 60 N. Y. 533, 539, it is said that—

“His notice and knowledge must be regarded as notice to and knowledge of the wife, according to the well-settled principle that a principal is chargeable with all the knowledge the agent possesses in the transaction of the business he has in' charge. ”

See, also, Myers v. Mutual L. Ins. Co., 99 N. Y. 1-11; Hogan v. Shorb, 24 Wend. 458; Laing v. Butler, 37 Hun, 144; affirmed 108 N. Y. 637; 13 St. Rep. 900; Greenfield School Dist. v. Greenfield Nat. Bank, 102 Mass. 174; Bank v. King, 57 Pa. St. 202.

The learned referee is of the opinion that the plaintiff could not recover, for the reason that he parted with nothing of value at the time he.received the instruments upon which he brings his suit; that he first sent his money to Monson, and charged him therefor in his book; that some days later Monson returned the checks, and was then given credit therefor; that at that time the plaintiff received and credited the checks on a pre-existing debt against Mon-son ; and that, in consequence thereof,' the defendants were not precluded from interposing the defense that they had thereto,—citing Clark v. Gallagher, 20 How. Pr. 308; Phœnix Ins. Co. v. Church, 81 N.Y. 218; Potts v. Mayer, 74 N.Y. 594. The referee also appears to have been of the opinion that the long time intervening after the plaintiff received the checks before he presented them to the defendants for payment furnished evidence that the plaintiff did not receive them in the regular course of business; citing Claflin v. Farmers & Citizens' Bank, 25 N. Y. 292. We have not deemed it necessary to consider these questions, for, under the view taken by us, the plaintiff is chargeable with knowledge of the agreement of Monson with the defendants, and consequently they may avail themselves of their defense the same as if the action was prosecuted in the name of Monsqm. The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.

Bradley, J.

(dissenting).—The plaintiff handed his certificates and money to Monson to deposit in the bank of N. M. Allen & Son. This was to be done for the plaintiff, and such was the authority and direction given by him to Monson. The purpose of the plaintiff was to have the responsibility and liability of those bankers for his money. And by their checks or bills, drawn by them on themselves, which came to the plaintiff, he was advised that the deposits were made; that the amounts thus represented would be paid on presentation of such checks; and that until then na balance would remain in their bank to pay them. This was the import of the instruments, and the situation represented by them to the plaintiff. While the plaintiff may, in the outset, have intended that the money should be deposited to his own credit, he was at liberty, when the bankers’ negotiable checks came to him, indorsed by Monson, to treat the object as practically accomplished. The purpose of Monson’s authority was apparently fulfilled when he had furnished to the plaintiff such evidence of the liability of the bankers to pay the respective amounts so deposited; and the plaintiff had no reason to apprehend that those instruments were intended by the drawers to have another or different legal effect ‘than they, by their terms, purported to give them. But it seems that the bankers had an understanding with Monson that the checks were not to be treated as effectual for any purpose, and that he should be permitted to draw the money from the bank without the production or presentation of them. When the plaintiff afterwards presented those checks for payment to the bank, payment was refused. The question therefore, is whether or not the plaintiff was affected by such understanding between the bankers and Monson.

It is urged on the part of the defense that the plaintiff was chargeable with knowledge of the purpose for which the instruments were issued to Monson, because the latter was his agent in the transaction of depositing the money. The fact is that Monson had authority to deposit the money in the defendant’s bank for the plaintiff, and not elsewhere; and when he did that, and thus secured the liability of the bankers to the plaintiff, he had accomplished all that his authority from the plaintiff permitted. He, however, assumed to deposit the money as his own, and in that manner induced the bankers to treat him as owner, and by reason of the confidence reposed by them in him, and upon the pretense of a purpose suggested by Monson, they delivered to, him their checks in form negotiable. The purpose for which they were issued to him, if effectual, would be a fraud upon the plaintiff. It would seem that when Monson departed from the purpose for which he was commissioned by the plaintiff to act for him, and acted for himself, he ' got beyond the scope of his authority derived from the plaintiff ; that in making the arrangement in respect to the character the bankers’ checks should have he was engaged in the commission of an independent fraudulent act on his own account; and that notice of it was not imputable to the plaintiff, as to whom and his interest he was thus, and for his fraudulent, purpose, acting adversely. Innerarity v. Bank, 139 Mass. 332; Atlantic Cotton Mills v Indian Orchard Mills, 147 Mass. 268-278, Allen v. Railroad Co., 150 Mass. 200-206. The defendant, however, having no knowledge of the relation of the plaintiff to the transaction of the deposit of the money, would not have been liable to the latter if the checks or drafts of his banking firm had not been made and issued to Monson. They, as their import represented, were the negotiable undertakings to pay the amount of the deposits, and they were, as they seemed to the plaintiff, the products of the deposit of his money in the bank. They were so received and treated by him in good faith. The trouble which has occasioned this controversy arises from the unusual and probably unprecedented action of the bankers in issuing their negotiable checks or bills to Monson in reliance upon his promise to retain and return them. If they had not been furnished to the plaintiff for the respective deposits of his money, his remittances to Monson for that purpose would have ceased. Eor the bankers to say that they supposed their checks would be held by Monson is not a very satisfactory answer in a legal sense, as there was no restriction other than his worthless promise that he would not let them pass from him. The proposition that the plaintiff was chargeable with notice that th.e bankers made and delivered the drafts to Monson pursuant to an arrangement which destroyed their validity, or rendered them in effect other than that which was plainly their purport, has, as viewed by me, neither reason nor principle for its support.

The case of Bank v. Davis, 2 Hill, 451, much relied, upon, does, not seem to aid the defense. There Williams was one of a board of directors of a branch bank of the plaintiff at Erie, Pa.,-and to him the .bills in question were sent by the drawer for discount at that branch. He indorsed his name upon them, and procured them to be discounted for himself, and appropriated the proceeds. His associates in the board had no notice of the fraudulent use of the bills, and supposed the discount was made in good faith for himself. The court held that the bank was chargeable with notice of the fraudulent conduct of the director Williams, for the reason that the bills were transmitted to the director Williams for the purpose of having them discounted by the bank for the drawer, and that he was acting in behalf of the bank at the time of the transaction in question. And Chief Justice Kelson, in delivering the opinion of. the court, said:

“But one answer has been made to the Conclusion at which we have arrived, and that is that Williams should not be regarded as a director in the discount of the bills in question. If that could be maintained, then I admit the argument fails ; but * * * that is not true, either in fact or in contemplation of law.”

It was in the scope of the power of the directors to discount paper, and the court said:

“It is not to be denied that if the principal employs several agents to transact jointly a particular piece of business, he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power.”

In that case, while representing the bank as its director, the bills were transmitted to and received by Williams as such director, to be discounted for the drawer, and by causing it to be done he secured an advantage to himself; and it was held that his relation to the bank was such in the matter of discontinuing the bills that notice of the purpose for which they were received by him was imputed to the bank, as the bills were discounted by it through the action of the directors. The principle of the case, in view of the facts presented by it, is referred to and somewhat exemplified by Judge Gray in Casco Nat. Bank v. Clark, 139 N. Y. 307; 54 St. Rep. 590. It may be observed that in the H. S. Bank case Williams was not the adverse contracting party. He was acting as its director in procuring discount of the paper, although he may have had the purpose of realizing an-advantage to himself from it. In the present case the plaintiff was chargeable with knowledge that the money was deposited to the credit of Monson. Further than that, the drafts of the bankers transmitted to the plaintiff advised him that the amount remained with them, subject to call, on presentation of those instruments, according to the usual custom and course of banking business in such cases. The promise of Monson to retain and return the, checks was made to procure them for the purpose of defrauding somebody, and the issuing them with permission to draw the money from the bank without their production and surrender enabled him to do so. He evidently did not care which — the bankers or the plaintiff — suffered the consequences. He knew it was only through the means afforded by the irregular and inexcusable method which the bankers consented to adopt that he could consummate his fraudulent purpose. It certainly would be a most remarkable presumption that would impute to the plaintiff notice that the bankers did not intend that their checks should have the character of their import.

In Allen v. Railroad Co., 150 Mass. 206, after stating the general rule of constructive notice to the principal of facts within the knowledge of the agent affecting the character to the transaction while acting for him, the court added:

“ There is an exception to this rule when the agent is engaged in committing an independent fraudulent act on his own account, and the facts to be imputed relate to this fraudulent act. * * * It has been suggested that the true reason for the exception is that an independent fraud, committed by an agent on his own account, is beyond the scope of his employment, and therefore knowledge of it, as matter of' law, cannot be imputed to the principal, and the principal cannot be held responsible. Whatever the reason may be, the exception is well established.”

And in Innerarity v. Bank, 139 Mass. 332, upon the subject of the reason for the exception to the general rule, the court observed:

“ While the knowledge of an agent is ordinarily to be imputed to the principal, it would appear now to be well established that there is an exception to the constructioñ or imputation of notice from the agent to the principal in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy ; as, where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating.”

It may be stated as a theory or ground upon which notice is imputed to the principal of facts which come within the knowledge of the agent while acting in the scope of his authority, that the duty of the agent is to communicate such facts to his principal, and the presumption is that he has done so. Casco Nat. Bank v. Clark, 139 N. Y. 307-313; 54 St. Rep. 590. When the agent is attempting to do that which, if effectual, would be a fraud upon his principal, the presumption that he has communicated to or will advise him of the facts of the transaction certainly cannot be presumed, nor can it be assumed by the person with whom the agent is dealing that such purpose or conduct of the agent is within the scope of his authority. It is quite evident that if H. M. Allen & Son had been advised that Monson was acting for the plaintiff in depositing the money, it would have been apparent to them that an arrangement to the effect that the checks should be nugatory as such, and for that reason Monson might draw out the money without the presentation of them, would be in fraud of the plaintiff, and therefore not within the scope of his authority to Monson.

The proposition upon which the defendent seeks to charge the plaintiff with constructive notice, being that of agency and his relation of principal, is, for the purpose of the question, not other than it would be if the bankers had then known that Monson was acting for the plaintiff in depositing the money for the latter. And it seems quite clear that no support for the defense can be founded upon imputation of notice to the plaintiff arising out of the relation of agency, because the very nature of the understanding to the effect that the checks or drafts were to be deemed nullities was such as to advise the bankers that it was not within the scope of the agency of Monson to fraudulently defeat the purpose of the authority given him by the plaintiff. So far, therefore, as the defendant seeks to defend upon the ground of constructive notice to the plaintiff arising out of agency of Monson, he must assume the consequences which would have resulted from his knowledge of that relation as of the time of the transactions in question.

It seems to follow that the defense has no support in the position that notice was imputed to the plaintiff that the bankers’ checks were made pursuant to an understanding, fraudulent on the part of Monson, which would defeat their apparent purpose and effect as such. The plaintiff received those instruments for value,1 and is a holder of them in good faith. They, in fact, were the product, when made, of his money deposited, and were transmitted to him as such. By them was expressed the liability and undertaking of the makers to pay the respective and equivalent amounts so deposited with the bankers who made them. The plaintiff was at liberty to assume that the liability to pay them would continue until they were presented for payment. This, as between them and the plaintiff, the bankers were, in view of the usual methods and course of business, required to understand. Ho reason appears for,apprehension on the part of the plaintiff to the contrary. Hor is it seén that the indiscreet and remarkable confidence of the bankers in Monson’s promise to return the drafts can legitimately be available to prejudice the plaintiff's claim, founded upon them. For these reasons, being unable to concur in the opinion adopted by a majority of the court, I think the judgment should be reversed, and a new trial granted, costs to abide the event.


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    Mary W. Merrick, as Executrix, etc., Resp’t, v. Sarah J. Hill et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Appeal—First instance.
    An objection to the reception of evidence on the ground that the fact to be established thereby was not pleaded, cannot be raised for the first time on appeal.

      2. Former Adjudication—Nonsuit.
    A nonsuit is not a bar to another action.
    Appeal from a judgment of the county court affirming a judgment of the municipal court of the city of Bochester.

      H. J. Sullivan, for app’lts; H. D. Tucker, for resp’t.
   Haight, J.

This action was brought torecover the sum of $130, being the amount of rent due upon -a lease of real estate. On April 1,1890, Moses Merrick leased to one Edward P. Hill certain premises in the city of Bochester and town of Oates, for one year next.ensuing, at the annual rental of $215, payable quarterly on the first days of July, October, January and April. Indorsed upon the lease is the following: “For value received, we do hereby guarantee the payment of rent of the foregoing premises as herein before agreed to be paid by said lessee, Edward P. Hill; ” dated Rochester, April 1, 1890, and signed by the defendants in this action. Upon the trial the plaintiff introduced in evidence an instrument bearing date October 15, 1891, signed by. Moses Merrick, in which, after certain recitals, is the following: “ Now, therefore, in consideration of the premises, and for value received, I hereby sell, assign and transfer to said Melzer F. Merrick all right and interest I may have in and to the said lease and guaranty and the rent thereby secured, if any interest I may have therein.” The trial court awarded judgment in favor of the plaintiff for the amount of rent due. It is now contended that the assignment should not have been received in evidence, for the reason that it was not alleged in the complaint. The complaint does not allege a transfer of the interest of Moses Merrick in the lease to Melzer F. Merrick, but it was alleged to have been by a deed, and no mention is made of the assignment. But no objection was made to iljs reception upon this ground. It was only objected to as incompetent and immaterial. The attention of the trial court was in no way called to the fact that it was not covered by the pleadings, and consequently error cannot be predicated 'upon its reception in evidence. After the reception in evidence of the assignment, the defendants introduced a judgment roll, in which Moses Merrick was plaintiff and the defendants in this action were defendants, in which it appears that Moses Merrick had, previous to the assignment, brought'ah action against the defendants for the same rent which is sought to be recovered by the plaintiff in this action. In that action the judgment was fop the defendants. It is now contended that it determined the rights of Moses Merrick, and that he had no interest in the lease which he could transfer to Melzer F. Merrick. But in that action the defendant introduced- a deed in evidence, dated August 13, 1890, in which Moses Merrick conveyed to Melzer F. Merrick in fee the leasehold premises. It appeared that all of the rent due upon the lease accrued and became due after such conveyance. The trial court entered a judgment of nonsuit in that action. We presume, therefore, that the trial judge disposed of the case upon the theory that, Moses Merrick having conveyed his interest in the real estate, the rent thereafter accruing'passed to his grantee. But, whether -chis be so or not, we deem it immaterial, for a nónsuit is not a determination of a cause of action upon the merits, and does not become a bar to another action. People v. Vilas, 36 N. Y. 459. Upon the trial the plaintiff introduced a certified copy of the deed alluded to. This was objected to as incompetent and immaterial, and not the best evidence; that it is an attempt to prove title which is controverted ; and that the court has no jurisdiction. The deed was, however, received, and after the plaintiff rested the defendant moved to dismiss the complaint on the ground that in the plaintiff’s own showing the title to real estate is in question and disputed. This motion was denied. The answer was a general denial, and a plea of payment. The defendants claimed that by the introduction of the deed in evidence it was made to appear upon the trial by the plaintiff’s own showing that the title of real property was in question, and that it operated to oust the justice of jurisdiction (Code Civ. Pro., § 2956), and to sustain this claim our attention is called to the case of Lane v. Young, 66 Hun, 563; 50 St. Rep. 623. On the other hand, it is claimed that the title to real property was not put in issue by the answer; that rent reserved under a lease could be transferred to a person other than the owner of the fee; and that it was competent upon the trial for the plaintiff to show that Melzer F. Merrick had become the owner, and entitled to recover the rents accruing upon the lease; and that this could be done by any instrument in writing that showed the fact, whether it was a deed, assignment or other instrument; and that the title of real estate was not necessarily brought in issue. But we do not deem it necessary to now determine this question, for, even if it should be conceded that the deed was improperly received, and should be regarded as stricken t out, the plaintiff’s right to recover would still remain unimpaired, for the assignment alluded to, of October 15, 1891, is undisputed, and therefore conclusive upon the question of the ownership and of the right to recover the rents due and owing. The judgment appealed from should be affirmed, with costs.

All concur.


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    Walter H. Smith, as Trustee, etc., App’lt, v. Ingham University, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Appeal—Failure to serve case—Dismissal.
    The only effect of a failure to serve a case and exceptions within the time prescribed, is to leave the appellant to argue his appeal on the judgment roll.
    Appeal from an order denying a motion to strike the cause' from the calendar.

      Raines Bros., for app’lt; Bowen é Washburn, for resp’t.
   Haight, J.

So much confusion exists with reference to the disposing of appeals in this court, on account of the delay in the prosecution thereof, that we have thought it wise to restate the practice.

An appeal cannot be dismissed on account of the failure of the appellant to serve a case and exceptions within the time prescribed therefor. The only effect of such omission is to leave the party to argue his appeal on the judgment roll. Schwarz v. Weber, 103 N. Y. 658; 3 St. Rep. 611; Berger v. Dubernet, 7 Rob. (N. Y.) 1; Brown v. Hardee, 5 Rob. (N. Y.) 678; Rankin v. Pine, 4 Abb. Pr. 309.

Rule 33 provides that:

1 If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto; and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appearance before the justice, surrogate or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter t.o have agreed to the amendments as proposed.”

Rule 35 provides that:

“ Where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, signed and ordered to be filed, or it shall be deemed abandoned unless the time is extended by order. * * '* And on filing affidavit that such case or exceptions has not been filed and showing the time of the settlement thereof, and the date of such order, and that more than ten days have elapsed from the time of such order, or from the expiration of the time to which it was extended, an order, of course, may be entered declaring the same abandoned and the party may proceed as if no case or exceptions had been made."

It will be observed that under rule 33, if the party shall omit to make a case within the time limited, he shall be deemed to have waived his right thereto, and that under rule 35, if he omit to file the case, when settled, within the time limited, he shall be deemed to have abandoned it. As to the former, the rule does not point out how the waiver is to be determined, but, in the latter, the rule specifically provides how the question of abandonment shall be established. No reason is apparent why the practice provided for the determination of the question in one case should not prevail in the other. The courts have consequently adopted the practice prescribed by rule 35, in determining the question of waiver under rule 33. Carraher v. Carraher, 42 How. Pr. 458 ; Phelps v. Swan, 2 Sweeny, 696 ; Ward v. Railroad Co., id. 701; Anon. 36 How. Pr. 366; Ins. Co. v Dwight, 1 Hilt. 50.

Rule 40 provides that:

“ Enumerated motions shall be noticed for the first day of the term by either party on a notice of eight days. * * * The party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon trial of issues of law, at least eight days before the time for which the latter may be noticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move on affidavit and on four days’ notice of motion, that the cause be struck from the calendar (which ever party may have noticed it for argument) and that judgment be rendered in his favor.”

The practice, therefore, is, if the appellant fails to serve his case, or have it settled, signed or filed, within the time prescribed by the rules, the respondent may apply, on notice, to the special term, to have the case declared waived or abandoned in accordance with the provisions of the rules 33 and 35. IE the special term grants the motion, the appellant may still have his appeal heard upon the judgment roll, by causing the papers to be printed and served in accordance with the provisions of rule 40. After the entry of an order declaring the ease and exceptions waived or abandoned, the respondent may notice the case for argument, and place it upon the calendar; and, if the appellant neglects to serve upon the respondent the papers upon which the appeal is to be heard within the time prescribed, the respondent may moye on affidavit, and on four days’ notice of motion, that the case be struck from the calendar, and tnat judgment be rendered in his favor. In the city of New York it has been the practice to require the respondent to apply to the court, or a jctdge thereof, for an order to put the case on the calendar, in accordance with a special rule to that effect existing in such city. But we have no such rule in this department. We have however, a special rale which provides that:

“ In every case which is to be brought on for argument upon a case or a case containing exceptions, the note of issue filed with the clerk shall be accompanied by an affidavit stating that the case has been settled, signed and filed, and specifying the time and place of such filing; otherwise the case shall not be put upon the calendar.”

This rule has reference only to causes which are to be heard upon a case, or a case containing exceptions, and has no application to an appeal which is to be heard upon the judgment roll alone. After an order has been entered declaring a case, or a case containing exceptions, waived or abandoned, the cause may be placed upon the calendar, and no affidavit is required to accompany the note of issue. The special term has power to excuse and open defaults, and to extend the time to make and serve case or case containing exceptions, and all motions of this character should be made in that court. The motion should be denied, but, in this case, without costs to either party.

All concur.