text:
    RICHARD TAYLOR, Appellant, v. CHARLES FAAS, Respondent.

      Orde)' of arrest for fraud — what allegations necessary in action on contract — Code of Civil Procedure, § 558.
    In an action upon contract it is not necessary to authorize the court to grant an order of arrest, on account of fraud in the contracting thereof, that the facts, upon which such order is granted, should he stated in the complaint.
    Appeal from an order made at Special Term, setting aside an order of arrest.

      James L. Phelps and Charles J. Patterson, for the appellant.

      W. T. Millihen, for the respondent.
   Barnard, P. J.:

This is an appeal from an order setting .aside an order of arrest. The cause of action is upon a contract. The complaint simply contains averments to sustain the action. The plaintiff, upon affidavits showing a fraudulent contraction of the debt, claimed in the complaint by the defendant, obtained an order of arrest. This order of arrest has been vacated upon motion upon the ground that by the provisions of section 558 of the Code of Civil Procedure, the complaint must contain averments showing the fraudulent contraction of the debt in question. The plaintiff has followed the practice established for many years, and that part of the section above cited which it is claimed changes this by established practice is as follows:

“But at any time after the filing or service of the complaint the order of arrest must be vacated on motion, if the complaint, shows that the case is not one of those mentioned in section 549 or 550 of tins act.” Among the cases for arrest mentioned in section 550 is the present case, an action upon contract, when the debt was fraudulently contracted.

The first objection to the claim, made by defendant, that the averments of fraud should be stated in the complaint, is that the complaint does not show that the case is not one of those mentioned in section 550. It shows nothing in regard to it. The ordinary averments of facts showing an indebtedness upon contract from defendant to plaintiff is all it contained, and all it should contain. (Sec. 481 Code of Civil Procedure.) If allegations of fraud in the contraction of the debt were averred they need not be proven' on the trial and could not be tried then. (Graves v. Waite, 59 N. Y., 156.) Such allegation in the complaint would be useless upon an application for an order of arrest. They would not be evidence, for the complaint need not be verified. The legislature could plainly have expressed a design to change the rule as to orders of arrest in cases upon contracts. The'report of the Commissioners of Revision contained provisions which seemed to require the grounds of arrest in cases like the present to be be stated in the complaint “ by allegation extrinsic to the complaint.” The legislature amended the, sections by striking out all words which would seem to imply that any statement was needed in the complaint in actions upon contract, of the facts authorizing an order of arrest.

If the averments must be made in the complaint of the facts showing a fraudulent contraction of the debt, they should be proven to the saclisfaotiou of the court or jury upon the trial, to justify a recovery. The case would then be one where the plaintiff was entitled to an execution against the person from the nature of the action. By section 1487 of Code of Civil Procedure the plaintiff in that case would be entitled to no execution against the person unless an order of arrest had been obtained and not vacated. The legislature by this section recognized two different causes for execution against the person, one depending' on the nature of the. action, and one depending upon facts existing outside of the cause of action. If the defendant’s claim prevails and the facts justifying an arrest in this case, should be averred and proven on the trial to the satisfaction of a jury, still no execution could issue against the defendant’s body if no order of arrest had been procured before judgment. No reason therefore is apparent why a statement of the facts showing the fraud should be set forth in the complaint. We think the necessity for such statement is not implied by the section in question.

Order reversed with $10 costs and disbursements, and motion to vacate order of arrest denied with $10 costs.

Gilbert, J., concurred; Dvkaian, J., not sitting.

Order reversed with costs and disbursements.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. CAMILLA HUNT, a Lunatic, and others, Appellants.

      Insanity — when not a defense to an action on contract.

    Where a person, upon borrowing money, executes for a full and valuable consideration, a bond and mortgage to secure the repayment thereof without fraud or unfairness, without any knowledge on the part of the lender of the borrower's insanity, and without any notice or information thereof sufficient to call for inquiry (the insanity of such person not having been established by any inquisition), the fact that such person was in fact insane at that time furnishes no defense to an action to foreclose the mortgage.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the cc urt without a jury.

      Bobert P. Harlow, for the appellants,
    Camilla Hunt and Edward P. Wilder, her committee. The plaintiff is bound to prove that the mortgagor was sane at the very time the mortgage was given. {Jackson v. Von Busen, 5 John’s, 159, marg. p.; Attorney-General v. Purniher, 3 Bro. Ch. R. [Am. ed., 1844), 441, 443, 445; White v. Wilson, 13 Vos., 88; Hall v. Warren, 9 Yes., jr., 611; 1 Story’s Eq. Jurisp. [12th ed.], 219, § 222; Ilaviland v. Hayes, 37 N. Y., 33; Goddell v. Harrington, 3 T. & C. [N. Y. Sup. Ct. R.], 345.) In dealing with any person it is the duty of both contracting parties to use care. They deal at their peril. If a person deals with an infant he deals at his peril, though the infant is apparently of age. It is the same with iusane persons. {Wadsworth, v Sharpstein, 8 N. Y., 393- Beaver v. Phelps, 11 Pick., 304.)

      Winchester Britton, for the respondent.
    An executed contract made with a lunatic in good faith for a full consideration, without advantage taken of the lunatic, without knowledge of the insanity, and without such information as would lead a prudent person to a belief of the incapacity, and when there has been no finding of insanity by a commission de lunático inquirendo, will be enforced as against the lunatic, {Lincoln v. Buckmasler, 32 Vt., 52; In the Matter of Beckwith, 3 Hun, 443; Matthiesson v. McMahon, 38 N. J. L., 536; Beaveny. McDonnell, 9 Exch., 309; 23 L. J. Exch., 94; 2 C. L. R., 474; Sims v. McLure, 8 Richardson Eq., 286; Dane v. Kirkwell, 8 Carr. & Payne, 679; Lancaster Co. Bk. v. Moore, 78 Penn., 407; 21 Am. R., 24; Beals y. See, 10 Barr., 56; Addison on Contracts [6th ed.], 1033-4; 2 Kent’s Commentaries, 451, note 1; Molton y. Camroux, 2 Exch., 501; Elliott v. Ince, 7 DeG. M. & G;, 475; Wilder y. Weakley, 34 Inch, 181; Younger y. Skinner, 1 McCarter, 389.) This liability is upheld, not because of the validity of the contract as such, but because the lunatic has received and enjoyed the benefit of the agreement. (Brown v. Jodrell, 3 C. & P., 30: Neill v. Morley, 9 Vesey, 447; Younger v. Skinner, 1 McCarter, 389.) When the contract is void because of insanity, it is only -when one has wholly lost his understanding — is absolutely non compos mentis. The question is, did he know what he was about when he entered into the obligation. (Osterhout v. Shoemaker, 3 Denio, 37, note-, cited 14 Barb., 494; Willard’s Eq., Juris., 675; Blanchard v. Nestle, 3 Denio, 37; Neill v. Morley, 9 Vesey, 478; Lancaster Co. Bk. v. Moore, 78 Penn. St., 407; 21 Am. R., 24; Odell v. Buck, 21 Wend., 142; Van Deuser v. Sweet, 57 N. Y. R., 379.) Where a contract is impeached solely oh the ground of incapacity of one of the parties to it, and without charge of fraud, the test of such capacity is the ability of such party to comprehend in a reasonable manner the nature of the particular transaction. Proof of delusion on independent subjects is not enough. (Sozear v. Shields, 23 N. J. Eq., 509.) Absolute soundness of mind is not necessary to make a valid conveyance. It is sufficient if the mind comprehend the import of the particular act. (Ilovey v. Hobson, 53 Me., 256; Miller v. Craig, 36 111., 109; Speers v. Sewell, 4 Bush.. 239; Dennett v. Dennett, 44 N. H., 531; Hippy v. Gaunt, 4 Fred., 443.)
   Dykman, J.:

This action is brought to foreclose a mortgage executed to the plaintiff by the defendant, Hunt, as security for a loan of four thousand dollars in money. The loan was made ou the 23d day of April, 1870, and the mortgage bears date on that day.

On the 21st day of October, 1871, it was found on an inquisition of lunacy that the mortgagor was of unsound mind, and had been so, without lucid intervals, for twelve .years. The defense of lunacy is now interposed to this action, and it is claimed that the mortgage cannot be enforced because the mortgagor was of unsound mind at the time of its execution.

A trial has been had at Special Term, and the court has found that the defendant was of sound mind at. the time of the execution of the mortgage, and has given judgment for the plaintiff. On this appeal we are asked to revise the judgment on the facts, and there is no doubt concerning our power to do ho if it is against the evidence. Conceding, without now deciding, that the finding of the trial court is erroneous, and that the defendant was, in fact, a lunatic at the time she borrowed the money of the plaintiff, and gave back the bond and mortgage to secure its payment; it does not yet follow, by any means, that this judgment must be reversed.

All the transactions of this lady with the agents of the plaintiff, in relation to the loan and the execution of the papers, evinced a clearness of intellect and a directness of purpose entirely in accord with the assumption upon which they acted, that she was in the full possession of all her faculties. Nothing occurred to excite suspicion or place them on their guard. It would be not only a startling proposition, but also in our judgment, an innovation upon well settled principles that loans of money are made and securities taken upon the risk of losing the money if it turns out afterwards that the borrower was then insane, though nothing had then made it manifest, and he himself was unconscious of the fact.

The human mind is wonderfully made, and the partition between sanity and insanity oft-times very thin. Upon inquest, men are sometimes found to have been insane for years, who during all the time have been engaged in all the business complication, of every day life. If all their acts during the period must be reversed aud go for nothing, the upheaval will be very great and much hardship must result. Upon plain view there seems to be no propriety in any such rule, and there is no principle of law or equity calling for its adoption.

Here we have the case of an executed contract with the lunatic of which she has taken the benefit, made in good faith, for a full valuable consideration, without fraud or unfairness, without knowledge of the insanity and without notice or information calling for inquiry, and before the insanity was found by the inquisition— every principle of justice requires that it should be sustained. It would be derogatory to the law, if after obtaining the money from the plaintiff and using it for her own benefit, she should now be allowed to defeat the securities which she gave for the repayment. There is no authority which requires us to hold any such doctrine, and there is abundant to the contrary we do not deem it necessary to examine.

The judgment must be affirmed with costs.

Present — Barnard, P. J., and Dvkman, J.

Gilbert, J., not sitting.

Judgment affirmed with costs.


author: Dyioian, J.: Gilbert, J.:

text:
    WILLIAM HORTON, AMOS R. CLARK AND JOHN F. W. MANGLES, Respondents, v. ELEAZER L. FANCHER AND ARTHUR W. FANCHER, Appellants.

      Warrant of attachment — when justice of the peace may issue — what evidence, not sufficient to authorize.

    The facts that a debtor is insolvent, that he has turned over to two creditors portions of his goods amounting to less than one-half of their respective debts ; that he refuses to turn over any goods to the plaintiffs or to pay the amount due to them, that he is selling off his stock in trade and not likely to continue his business, do not furnish sufficient evidence to authorize a justice of the peace to issue a warrant of attachment against him, on the ground that he has disposed, or is about to dispose, of his property with intent to defraud his creditors.
    Appeal from a judgment of the County Court of Westchester county, affirming a judgment of a justice of the peace in favor of the plaintiff.

      Close ffi Ilohertson, for the appellants.

      Robert /S'. Jlart, for the mp indents.
   Dyioian, J.:

This is an appeal from a judgment of the County Court affirming a judgment of a court of a justice of the peace. The action was commenced in the lower court by attachment, and the contention is that the affidavit which was the foundation of the attachment is insufficient to support it. The determination of this appeal depends, therefore, upon the affidavit which was presented to the justice and on which the attachment was granted.

There are two classes of cases in which attachments against the property of a debtor may issue from a court of a justice of the peace in this State on the application of a creditor. One under the Revised Statutes, whenever it shall satisfactorily appear to the justice that such debtor has departed or is about to depart from the county where he last resided with intent to defraud his creditors, or to avoid the service of any civil process, or that such debtor keeps himself concealed with the like intent. (2 R. S., 230.) The other is under the act to abolish imprisonment for debt. (Laws 1831, chap. 300, sec. 34, as amended by chap. 107, laws 1842.) It is therein provided that in addition to the cases in which suits may now be commenced before justices of the peace by attachment, any suit for the recovery of any debt or damage arising upon any contract, express or implied, or upon any judgment for one hundred dollars or less, may be so commenced whenever it shail satisfactorily appear to said justice that the defendant is about to remove from the county any of his property with intent to defraud his creditors, or has assigned, disposed of, secreted, or is about to assign, dispose of or secrete any of his property with the like intent, whether such defendant be a resident of the State or not. (3 R. S., 6th ed., p. 434, § 219.)

This attachment was applied for under the act to abolish imprisonment for debt; and to give the justice of the peace jurisdiction and the legal power topssue it, it was necessary for him to have proof upon which he could judicially determine either that the defendants were about to remove from the county some of their property, with intent to defraud their creditors, or that they had assigned, disposed of or secreted, or were about to assign, dispose of or secrete some of their property with the like intent.

In this case there was no such proof. In the first place there was the affidavit of William Horton that the defendants had disposed of and were about to dispose of their property, as appeared in the affidavit of Cyrus W. Ferris thereto annexed, with intent to defraud; no fact, act or circumstance is stated from which such an intent can be inferred or which shows that the affiant knew of its existence. In this case, as in all others, the inference of the law is in favor of innocence, and unless facts and circumstances are given to show a fraudulent disposition, the law will presume that all dispositions of property by the defendants were honest, for the purpose of paying their debts or supporting their families. Besides, this affiant does not pretend to know any facts, but refers to the affidavit of Ferris for the facts upon which he relies.

Ferris states in his affidavit that the defendants are, as he believes, in failing circumstances; that on the 7th day of January, 1877, he had an interview with E. L. Fancher, one of the defendants, in which he told him that their liabilities were about $7,000 and their assets about $2,500; that about January 15th, 1877, the defendants had turned over a portion of their stock, amounting to-about $300, to the firm of Sellick & Brothers, who are creditors to the amount of about $700, and on the same day they turned over to George Holmes, another creditor to the amount of about $900, some four hundred dollars’ worth of their stock; that he offered to take stock in payment of the plaintiff’s claim, which the defendants refused; that they declined to pay the plaintiff’s account, and are selling off their goods and property as rapidly as possible, sometimes in large quantities to different creditors, as stated, and are not likely to continue in business; that from the manner in which the defendants are disposing of their property he believes they intend to protect certain creditors by surrendering their stock and property to them, and to leave other creditors unprovided for, and thus to avoid a fair and equitable division of their property among their creditors, and thereby disposing of their property to defraud their creditors.

This affidavit is thus given substantially at length; to show how entirely destitute it is of fact or circumstance showing fraud or fraudulent intent. Every allegation in it is entirely consistent with good faith and honest intention. There is no fact to authorize the justice to whom it was presented to decide that any ground existed for the issue of an attachment.

It follows that no case was made for the issue of an attachment by the justice, and that the judgment of the county court, and that of the court of the justice of the peace, must be reversed with costs.

Gilbert, J.:

We think there was a total defect of evidence to show that the defendants had disposed of, or were about to dispose of their property, with intent to defraud their creditors. They were insolvent, and they had turned over to two creditors portions of their goods, amounting to less than one-half of their respective debts, and had refused to turn over any goods to the plaintiff, or to pay their account against him. These are all the facts stated in the affidavit to show the fraud alleged. They do not, in our opinion, have any tendency to prove that allegation. A preference of one creditor over others, is not a fraudulent act. It may be avoided by proceedings in bankruptcy, but it will not suffice to sustain an attachment issued on the ground of actual fraud. The most liberal intendment in favor of the jurisdiction of the justice, fails to justify the indispensable inference of a fraudulent intent. (Miller v. Brinkerhoff, 4 Denio, 118; Smith v. Luce, 14 Wend., 237.)

On the appearance of the defendants before the justice, they moved to dismiss the action, on the ground of the insufficiency of the affidavits on which it was granted. We think the justice erred in denying that motion, and that the subsequent pleading to the merits was not a waiver of the objection. That act might have been deemed a waiver in a proceeding between the creditor and third parties, but it had not that effect against the defendants themselves. (Wheeler v. Lampman, 14 Johns. R., 481; Avery v. Slack, 17 Wend., 85; Shannon v. Comstock, 21 id., 457; Sullivan v. Frazee, 4 Rob., 620.)

For the error stated, the judgment should be reversed with costs.

Barnard, P. J.. concurred.

Judgment reversed with costs.


text:
    In the Matter of the Petition of JOSEPHINE C. HAIGHT and LYDIA M. HAIGHT, Infants, for the sale of land.

      Real estate of infant — estate in remainder may be sold, under statute relating to.

    Where an infant has an estate in remainder in lands, such estate may he sold in-proceedings instituted under the statute providing for the sale of an infant’s real estate.

      Jenkins v. Fahey (11 Hun, 351), overruled.
    Appeal from an order compelling one Thomas Wilde to complete his contract for the purchase of the lands of the petitioners herein.
    These proceedings were instituted to sell the interests of the petitioners herein in certain lands, their interests consisting of a vested remainder in the lands in which their mother had an estate for her life. The proceedings resulted in a contract for the sale of the lands to Wilde being entered into by the guardian andconfirmed by the court. Wilde refused to fulfill the contract, and this application was made to compel him to do so.

      John C. Clayton, for Thomas Wilde, purchaser, appellant.

      Scudder & Carter, for the guardian ad litem.

   Dykman, J.:

This is a proceeding for the sale of the real estate of infants under the statute. The infants have an estate in remainder in the land, and the .question is whether such an interest can be sold in this way. This same question was presented to this court in this district in the case of Jenkins v. Fahey (11 Hun, 351), and we there held that under the statute providing for the sale of the interest of infants in real estate, a sale can only be ordered in those cases where the infant is in the actual possession of the land, or entitled to the immediate possession of it. That case has now "been overruled by the Court of Appeals, and the law is thus established adversely to our views.

The order is affirmed with costs and disbursements.

Present — Barnard, P. J., Gilbert and Dvkman, JJ.

Order affirmed with ten dollars costs and disbursements.


author: Gilbert, J.:

text:
    GEORGE D. BOSTWICK, Respondent, v. EDWARD BARLOW and others, Appellants.

      Commissioners of highways — liability of, as to repairs —notice of defect, not necessary to charge him.

    The statute (1 R. S., 501, § 1), requiring commissioners of highways to keep the bridges and highways in repair, imposes upon them the duty of active oversight and constant vigilance, and requires them to exercise a reasonable degree of watchfulness in ascertaining, from time to time, the condition of the highways and bridges, and in preventing them from becoming dilapidated or dangerous.
    The mere fact that they have not been notified of the existence of a defect, doe» not necessarily relieve them from liability to one who has been injured by-reason of their failure to discover and repair the same.
    Appeal from a judgment in favor of the plaintiff, entered upon: the verdict of a jury.
    The action was brought against the defendants, commissioners, of highways of the town of La Grange, to recover damages for an injury to plaintiff’s horse, occasioned by the defective conilition of a bridge in said town. The defendants claimed, among other things, that they had no notice of any defect in the bridge until the accident, and that it was then put in thorough order.

      C. Wheaton, for the appellants.
    Notice actual, or circumstances that are equivalent to it must be clearly proved before negligence, which is the gist of the action, can be claimed^ (Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoff, 44 N. Y., 113.)

      Daniel W. Guernsey, for the respondent.
    It is a well settled principle that whenever an individual has sustained an injury by act of omission or commission by a public officer, contrary to his duty, an action may be maintained b3r the individual against such officer (AdsitY. Brady, 4 Hill, 630; Hutson v. the Mayor, etc., 9 N. Y., 169; Robinson v. Chamberlain, 34 N. Y., 389; Bartlett v. Crozier, 15 John’s, 250; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y., 648; Shennan & Redfield on Negligence, p. 198; Dillon on Municipal Corporations, vol. 2, § 691; Bassett v. Fish, et ah, 19 N. Y. Supreme Court, [12 Hun,] 209; McCarthy v. the City of Syracuse, 46 N. Y., 194; Clark v. Miller, 54 N. Y., 582; Hover v. Barkhoff, 44 N. Y., 113; Lament v. Haight, et ah, 44 How. 1.) Actual notice to the commissioners of the unsafe character of the bridge was not necessary. (Hover v. Barkhoff, 44 N. Y., 113; McCarthy v. City of Syracuse, supra; Barton v. City of Syracuse, 36 N. Y., 54.)
   Gilbert, J.:

We have no right on this appeal to reverse the judgment, because the evidence is insufficient to sustain the verdict. There is some evidence on all the questions of fact, and the jury have found that it is sufficient. That is conclusive. To reverse upon the facts -when the trial was by jury, there must be an absence of any evidence to sustain the verdict. (Godfrey v. Moser, 66 N. Y., 252.) A review of questions of fact, can be had onty on an appeal from an order denying a new trial. An appeal from the judgment brings up only questions of law. (Boos v. World Ins. Co., 64 N. Y., 236.) But if the evidence were before us for review, we should hold it to be sufficient to prove that the loss of the horse is attributable to the accident produced by the defective condition of the bridge. One or two persons who saw the horse being driven on the road, immediately before the accident, testified that he lagged a little, but with that ■exception the evidence shows that he was in perfect health at the time of the accident, that he was injured severely thereby, and that he died in a few hours thereafter. It was clearly the duty ■of the jury to find in favor of the plaintiff on this point. There is not the slightest ground, that I can discover, for imputing negligence to the plaintiff Nor do I perceive .any ground for inter-, fercnce with the amount of damages allowed. The only question in the case is whether the allegation of a neglect of duty on the part of the defendants was proved.

The statute required the defendants to cause the highways and bridges over streams intersecting highways to be kept in repair (1 R. S. 501 § 1). That clearly imposed upon them the duty of active oversight and constant vigilance. Their duty is not discharged by waiting to be notified that a highway or bridge is out of repair, and by repairing it after their attention has been called to the damage occasioned by its having become dilapidated, but the duty involves the exercise of a reasonable degree of watchfulness in ascertaining the condition of the highways and bridges, from time to time, and of preventing them from becoming dilapidated or dangerous. Absence of notice, therefore, does not necessarily absolve such officers from liability for negligence. Notice would be very pertinent evidence to substantiate the charge of negligence against them; but their liability may be established without such notice, for there may be cases where their ignorance of the condition of a highway or bridge would, of itself, prove.a neglect of duty on their part. In short, negligence may be predicated. of an omission to perform a duty which enjoins personal supervision and care, as well as of an improper performance of such duty. (Hover v. Barkhoof, 44 N. Y., 113; McCurthy v. City of Syracuse, 46 id., 194-197, and cases cited.)

In the case before us evidence was given that the bridge in question had been unsafe for several months, and that its unsafe condition was apparent to travelers upon the highway of which it formed a part. It was a reasonable inference from the testimony of the defendants themselves, that neither of them examined the bridge during that period. The commissioners divided the town into three districts, and committed each district to the special care of a single commissioner. The defendant, Barlow, had the care of the highways and bridges in the district in which the bridge in question was situated. The accident occurred in June, 1876. Mr. Barlow testified that he was notified in September, 1875, that the bridge was out of repair, and that he then had it “ fixed;” and that between that time and the accident he did not cross the bridge. The other defendants testified to no act tending to show that they exercised any oversight or care of the highways or bridges in this district. On the contrary it is a legitimate inference from their testimony, that they paid no attention whatever to them.

The judge instructed the jury that the defendants were liable if they had actual notice of the unsafe condition of the bridge, or if the omission to repair it had been so long continued as to convince the jury that the defendants had been negligent. That instruction is within the principle stated. There was some, but not very satisfactory evidence of actual notice to one of the defendants. We think that a recovery ought not to be sustained upon that ground. But inasmuch as the commissioners had sufficient funds for that purpose, it was their duty to remedy the unsafe condition of the bridge, and their remaining ignorant, for so long a period, of the dangerous condition of the bridge, if in fact they did remain ignorant of it, did not exempt them from ■responsibility, but on the contrary is evidence of a neglect of iduty which makes them liable for the consequences.

The judgment must be affirmed with costs.

Dykman, J., concurred: Barnard, P. J., not sitting.

Judgment affirmed with costs. ■


text:
    WILLIAM BAYNE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Chapter 395 of 1871 — proceedings under — are riot for benefit of wife, but to protect county — are of a criminal character.

    Chapter 395 of 1871, relating to persons who abandon or threaten to abandon their families in the county of Kings, was not intended to provide a civil remedy for the benefit of wives and children, but to protect and indemnify the public against the expense of supporting paupers, and it partakes of the nature of a criminal proceeding.
    The facts that a husband has abandoned his wife and children in some other county or State, and that the wife has subsequently come to and resides in the city of Brooklyn, does not authorize proceedings against the husband to be instituted under said act.

      Certiorari to review the conviction of the plaintiff in error by a police justice of the city of Brooklyn, on a charge of abandoning his wife and children, the proceedings being instituted under chapter 395 of 1871. From the testimony of relator’s wife it appeared that she and the relator were married in Boston; that, she lived with him for six years; that she then went to Halifax, Nova Scotia, and had not lived with him since; that she came to Brooklyn from Halifax, and that the relator resided in the city of New York.

      John li. Tresidder, for the plaintiff in error.

      William Sullivan, for the defendant in error.
   Gilbert, J.:

The magistrate acquired no jurisdiction in this case, for two reasons:

First. The act of abandoning or threatening to abandon a wife or child is a quasi criminal offense. It is a mistake to suppose that the act of 1871 (chap. 395) was, or that antecedent statutes of a similar import were passed for the purpose of affording a civil remedy to deserted wives. The law has otherwise provided .a civil remedy for such cases. We auhere to our decision on this point in People ex rel. Kehlbeck v. Walsh (11 Hun, 292.) The magistrate has jurisdiction only of offenses committed in his coxmty . (Laws 1850, chap. 102), with some exceptions that have no-application to this case. The evidence of the wife herself totally disproved the allegation that she was abandoned in the city of Brooklyn. The counsel for the people insists that abandonment is a continuous act, and therefore the plaintiff in error was amenable to the jurisdiction of the magistrate, because his wife lived in Brooklyn, and the plaintiff in error refused to support her. ■ The resixlt of that doctrine would be that a wife,'who had at any period of time been abandoned by her husband in another county or in another State, might by taking up her residence in Kings- ■ county confer jurisdiction upon a justice of the peace to punish him for that offense. No authority for such a proposition has-been cited, and it is believed none can be found. It is repugnant to general principles, and to the plain object of the act of 1871 as expressed in its title, which is, “An act in relation to persons-who abandon or threaten to abandon their families in the county of' Kings.” The offense is complete when the abandonment takes 'place, and it is only one offense whether the separation be long or short. The fundamental error in the proposition of the counsel . consists in regarding the proceeding authorized by the act of 1871 as a civil remedy, devised primarily for the benefit of wives and children, whereas it is one to protect and indemnify the public against the expense of supporting paupers, and it partakes of the nature of a criminal proceeding. (11 Hun, supra.)

Second. There was no evidence of abandonment. The wife testified that she came to Brooklyn from Halifax, Nova Scotia, where she and her child had been living for ten years with her father, -.who is well to do; that she came to get some support ’ from her husband; that she was unwilling to live with him,, because he threatened to take her life, although she also testified that her husband never- struck her, and was very kind to her. Her husband resides in the city of New York. It was her duty to return to him, and offer to live with him. His refusal to accept such an offer, made in good faith, might have been some evidence in support of the charge of abandonment. But there is no evidence of that kind. In short; it is manifest that the wife has not become, and is not about to become, a burden on the public, but that she seeks to coerce her husband to support her and her child, while she chooses to live separate from him. That shows that she has abandoned her husband, and not that he has abandoned her. A wife may be fully justified in abandoning her husband, but if she does in fact abandon him, no matter for what cause, he is not liable under the act of 1871 for abandoning her; for under that act, neglect to support a wife is not an offense. The conviction should be quashed.

Dyioian, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Proceedings reversed.


text:
    THE PEOPLE ex rel. THE BOARD OF SUPERVISORS OF WESTCHESTER COUNTY, Respondents, v. STERLING G. HADLEY and others, State Assessors, Appellants.

      Appeal from Board of Supervisors to Board of State Assessors — a State Assessor absent on the hearing of the appeal may join in its decision — Who may apply for certioram.

    When an appeal is taken from a determination of a board of supervisors, as to the equalization of assessments for the purposes of taxation, to the board of State Assessors, a member of the latter board, who was not present at the hearing, may nevertheless join in the decision of such appeal and act upon the proofs taken before his colleagues in his absence.
    A certiorari to review the decision of the board of State Assessors upon such appeal must'be applied for by the towns, or the taxpayers thereof, who are injured thereby; it cannot be issued upon the application of the board of supervisors.
    Appeal from an order made at Special Term, denying a motion to vacate the order and supersede the writ of certiorari granted on the petition of the relator to review a judgment of the State Assessors.

      The board of supervisors January 6th, 1876, equalized the assessments of Westchester county, and the supervisor of Yonkers appealed to the State Assessors who decided that the action of the board of supervisors was erroneous. The board of supervisors now seeks to review the action of the State Assessors on the grounds: 1. That the appeal was heard by only two of the three State Assessors. 2. That the three State Assessors, one not having heard the appeal, joined in the written decision. 3. That no testimony was offered on the trial, except only as to the town and city of Yonkers.
    The motion to supersede was made upon the papers upon which the writ was ordered, also upon new affidavits and papers.

      Ralph E. Prime, for the appellant.
    The writ cannot issue except at suit of a proper relator, one having an interest in the proceedings. (Golden v. Rolls, 12 Wend., 239; People v. Stryker, 24 Barb., 654; People v. Morgan, 65 Barb., 473; People ex rel. Sheridan v. Andrews, 52 N. Y., 448.) The board' of supervisors has no interest in the controversy and hence is not a proper relator. (Newman v. Supervisors, 45 N. Y., 676, 690.) The writ was granted ex parte and if inadvertently granted or granted improperly, it will be superseded. (Munro v. Baker, 6 Cowen, 396; Bardner v. Supt. of Orange, 9 Wend., 433; People v. Supervisors of Allegany, 15 Wend., 198; People v. Rochester, 21 Barb., 656, 665.) It must appear that wrong has been done, and before allowing the writ the court should be so satisfied. (People v. Mayor of N Y., 5 Barb., 43, 49; People v. Supervisors of Allegany, 15 Wend., 198, 206 et seep; Conover v. Devlin, 24 Barb. R., 636, 641.)

      C. Frost, for the relator, respondents.
   Gilbert, J.:

A motion to supersede or quash a writ of certiorari is proper, when it has issued after the lapse of too long a period of time, or in behalf of one who has no interest in the relief sought, or irregularly, or without proper cause being shown therefor, or when for any reason it appears that the writ was improvidently issued.

Generally speaking, a trial of the merits of the case should not be allowed, otherwise than upon the return to the writ. (Comstock v. Porter, 5 Wend., 98.) But to that, as to almost every rule, there are exceptions, and we think this case presents one. The ■ cause shown for the writ is twofold. 1. That the action of the State board was illegal, because one of the members of the board participated in its decision referred to in the writ, without meeting with his colleagues, and without having been notified to attend the meeting of the board, and 2. That that board considered the equalization of the value of real estate only, and excluded the valuation of personal property.

It appears that Mr. Briggs, the absent member of the board, was duly notified to attend. Such notice having been given, the other members of the board were expressly authorized by statute to act in his absence. (L. 1859, ch. 312, § li.) The participation of Mr. Briggs in the decision did not vitiate the proceeding. The powers and duties now exercised by the board of State assessors, in respect to appeals from the determinations of the boards of supervisors in the equalization of assessments for taxes was originally devolved upon the comptroller by the act of 1859 before cited. By section 13 of that act it was provided that the proofs on which the comptroller was to decide, might be presented in the form of affidavit or otherwise, as he should direct. This provision is still in force, although the powers and duties formerly belonging to the comptroller have been transferred to the State assessors. (L. 1874, ch. 351, § 5.) This court held in The People v. Hillhouse (1 Lans., 87), that the comptroller was authorized to act upon proofs taken in his absence before a referee. A fortiori, one member of a board may act upon proofs taken before his colleagues in his absence.

We are also unable to discover any ground on which the board of supervisors could properly obtain this writ. Neither that board, nor the county whose representative it is, has any interest in the relief sought by the writ. Nor does it appear that they sued out the writ in behalf of the towns which have been affected by the decision of the State assessors, or any owner of property therein. Those towns, and the taxpayers therein, ai’e the only parties that can have been aggrieved by that decision. In the equalization of assessments boards of supervisors act judidaily in the performance of a public duty. The appeal to the State assessors is simply a proceeding to review their determination. The office of the writ of certiorari is analogous to that of a writ of error. • The only purpose it can accomplish is the correction of errors in the proceedings brought up for review. It would certainly be anomalous to allow the tribunal whose determination has been modified or reversed, to prosecute such a writ. As well might an inferior court, prosecute an appeal or certiorari to review the judgments of a superior court. We think that none but an aggrieved party can claim that writ. (5 Wait Pr. 467; People ex rel. Sheridan v. Andrews, 52 N. Y., 448-9), and that the board of supervisors is not such a party.

The order appealed from should be reversed, and the writ should be quashed with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order reversed and writ quashed with costs.


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    JOSEPH SELIGMAN and ANDREW V. STOUT, Respondents, v. JAMES T. DUDLEY and MARY DUDLEY, his wife, Appellants.

      Covenant to pay and discharge incumbrance — damages on a breach thereof— Assignee of mortgage — who may interpose counter-claim to action: to foreclose.

    Api'il 24th, 1873, the defendant Dudley executed a bond and mortgage to secure the purchase price of certain land, the deed of which to Dudley contained a clause by which the grantor (the mortgagee) covenanted to pay and dischai-ge a prior mortgage on the same premises, for $16,000, or to cause the said premises to be released from the lien thereof on or before July 1st, 1875. The mortgage given 'by Dudley was assigned to the plaintiff September 1st, 1875. In this action, brought by him to foreclose it, no personal claim being made against the defendant Dudley, the latter set up a breach.of the covenant as a counterclaim and defense, the 16,000 mortgage never having been paid nor the premises released from the lien thereof.

      Held, that as against the mortgagee, Dudley was entitled to recover as damages for a breach of the covenant the full sum of $16,000, although he had never paid the mortgage or any part thereof, and had never been evicted from the premises, or sustained any actual loss whatever.

      That plaintiff tooli the mortgage subject to Dudley’s right of action against the mortgagee (plaintiff’s assig-nor.)
    That Dudley was entitled to interpose the breach of the covenant as a defense to this action.
    A party to an action to foreclose a mortgage against whom either a personal judgment or one which may operate to transfer his estate in the land is sought, has a right to set up a counterclaim as a defense to the action.

      Agate v. King, (17 Abb. Pr. R., 159), overruled; Nat. Nine Ins. Co. v. McKay (21 N. Y., 191), distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to foreclose a purchase money mortgage. The deed given simultaneously with the mortgage contained a covenant, by which the grantors covenanted to pay and discharge a certain prior mortgage to secure the sum of $16,000, or cause the premises to be released from the lien thereof, and to save the grantees harmless therefrom, and from all interest that should accrue thereon, and from all costs, expenses, loss and damages by reason thereof, on or before the 1st day of July, 1875. The answer sets up the covenant and its breach, and asks to have the amount of the mortgage and the accrued interest deducted from the amount of any decree in this action. Up to the trial no proceedings had been taken to foreclose this $16,000 mortgage; but it still remained a lien on the premises. The facts were not disputed. The court refused the relief asked for in the answer.

      II. Ketiell for the appellants.
    The covenant is to pay and discharge the mortgage by a day certain. A right of action became complete on plaintiff’s failure to do the particular thing he agreed to perform, and the damages are the amount of the mortgage and interest. (Belloni v. Freeborn, 63 N. Y., 383; Wright v. Whiting, 40 Barb., 235; Farnsworth v. Clark, 44 Barb., 602; Port v. Jackson, 17 Johns., 239; Toussant v. Martinnanl, 2 Term Rep., 100; Martin v. Court, 2 Term Rep., 640; Hodge v. Bell, 7 Term Rep., 93; Atkinson's Executor v.. Coatsworth, 8 Mod., 33; Holmes v„ Rhodes, 1 Bos. and Pull., 638; Cutter et al. v. Southern etal., 1 Saunders, 116, note 1; Churchill v. Hunt, 3 Denio, 321; Rockfeller v. Donnelly, 8 Cow. 623;
      ■Jarvis v. Sewell, 40 Barb., 449; McClure v. Erwin, 3 Cowen, ■313; Gilbert v. Winan, 1 N. Y., 553; Thomas r. Allen. 1 Hill, 145; Mann r. Eck/ord’s Executors, 15 Wend, 502; Ex parte Negus, 7 Wend, 499; Kip v. Brigham. 6 John., 158; and also in 7 John., 168; Webb v. Pond, 19 Wend, 423; Chace v. Hinman, 8 Wend., 452; Warwick v. Richardson, 10 Mees. & Welsby, 284; Wood v. Wade, 2 Starkie, 167; Challoner v. Walker, 1 Bui-. 574; Sparks v. Martindale, 8 East, 593; Juliand v. Burgott, 11 Johns., 477; Rosser. Pye, Yelv., 207; 8 Watts, 157; Sedgwick on Damages, [5th Ed.]. 351, old p. 313.) The plaintiffs as assignees stand upon the same footing as mortgagees. (Greene r. Warwick, 64 N. Y., 220, and cases there cited, also Wright r. Whiting, 40 Barb., 240, which was an action of a similar character brought by a receiver.) The deed and mortgage formed one entire contract, and defendant has a right to counterclaim any damages sustained in consequence of a breach of a covenant in said contract. (Sandford r. Travers, 40 N. Y., 143; Stoio v. Tifft, 15 Johns., 413.)

      J. L. Re Qua, for the respondents.
    A defendant, against whom no personal claim is made, cannot interpose a set off, or other defense. (Agate v. King, 17 Abbotts Pr. 159, 162; Nail Fire Ins. Co., v. McKay, 21 N. Y., 191; Vassear r. Livingston, 13 N. Y., 248.)
   Gilbert, J.:

The bond and mortgage in this case bear date April 24th, 1873, and they were given by the defendant James T. Dudley to. the Tarrytown Heights Land Company, to secure the purchase money of the mortgaged premises. The conveyance from said company, contained a covenant, whereby said company covenanted to pay and discharge a prior mortgage on said premises for $16,000, or cause said premises to be released from the lien thereof, on or' before the first day of July, 1875. That covenant has not been performed. The prior mortgage for $16,000 has not been paid or discharged, nor have the mortgaged premises been released from the lien thereof.

The plaintiffs are assignees of the mortgage in suit. This action is for the foreclosure thereof only, no personal claim against Dudley being made; and the breach of the covenant aforesaid is set up as a defense by way of counterclaim. The assignment to the plaintiffs was made on or about September 1st, 1875. The court below upon these facts rendered the usual judgment for the foreclosure of the mortgage in suit, and a sale of the mortgaged premises, and the payment to the plaintiffs out of the proceeds of sale of the whole amount of said mortgage.

There is no principle, that I am aware of, on which this judgment can be sustained. At the time of the- assignment of the bond and mortgage in suit, the mortgagor James T. Dudley had an immediate right of action against the assignor of the plaintiff, for the breach of the covenant of said assignor before mentioned. Dudley -was entitled to recover as damages, for such breach of covenant, the full sum of |16,000, notwithstanding he had not paid the prior mortgage nor any part thereof, and had not been evicted from the mortgaged premises, nor sustained any actual loss whatever in consequence of the breach of said covenant. That principle has been completely established in this State. (Juliand v. Burgott, 11 Johns., 477; Port v. Jackson, 17 Johns., 239; S. C. in error, id., 479; ex parte Negus, 7 Wend., 499; Thomas v. Allen, 1 Hill, 145; Gilbert v. Wiman, 1 N. Y., 550, 562; Rector, etc., v. Higgins, 48 id., 532; Belloni v. Freeborn, 63 id., 383.) The reason of the rule is that Dudley was entitled to have this estate unincumbered by the prior mortgage after July 1st, 1875. How could that be enforced unless. he could reeover the whole amount on the covenant? (Lethbridge v. Mytton, 2 Barn. & Adolph., 772.)

The plaintiffs took the assignment of Dudley’s mortgage subject to his right of action against the plaintiffs’ assignor. (Crane v. Turner, 67 N. Y., 437, and cases cited.) Such right of action constituted a valid set off or counterclaim against the plaintiffs. (Code of Proc., § 112; Code of Civ. Proc., §§ 501-502; Bathgate v, Haskin, 59 N. Y., 533; Hunt v. Chapman, 51 id., 555.)

The result is that the plaintiffs are bound to allow to Dudley that set off or counterclaim (Lathrop v. Godfrey, 3 Hun, 739), and they must seek their remedy for the loss so occasioned against their assignor. What that remedy may be it is not necessary now to consider.

We think the case of Nat. Fire Ins. Co. v. McKay (21 N. Y., 191), does not benefit the plaintiffs. In that case the defendant, who set up the counterclaim, insisted as a defense that he had been evicted under a paramount title, whereby he had been divested of his interest in the mortgaged premises. No personal claim was made against him. The court merely decided that a defendant, in a suit to foreclose a mortgage, against whom no personal claim is made, and who has no interest in the land to be affected by the judgment demanded, cannot set up a counterclaim. They recognized his right to do so, however, in a case like this. Although the plaintiffs have waived their claim against Dudley, his land will be bound by the judgment, and a sale thereunder will divest him of his title thereto and transfer it to the purchaser. It does not appear whether the land is worth more or less than the amount of the judgment. If it is worth more, the effect upon him of enforcing the judgment against the land will be as injurious as the enforcing of a personal judgment against him would be; and if it is worth less, he will sustain a proportionate loss.

We are of opinion that a party to an action to foreclose a mortgage, against whom either a personal judgment or one which may operate to transfer his estate in the land is sought, has a right to set up a counterclaim as a defense to the action, and that the case of Agate v. King (17 Abb. Pr. R., 159), so far as it asserts a contrary principle, ought not to be approved. (Lathrop v. Godfrey, 3 Hun, 739.)

It follows that the judgment must be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., concurred; Dykman, J., not sitting.

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


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    GEORGE SHERWOOD, Appellant, v. A. DOLEN, JOHN GILCHRIEST and others, Respondents.

      Witness — examination of, in supplementary proceedings — -■when he cannot be compelled to subscribe the referee’s minutes.

    Where upon the examination of a witness in proceedings supplementary to execution, the testimony actually given has been erroneously taken down, the witness has a right to have the minutes changed so as to conform to the testimony actually given by him, and the court has no power to compel him to subscribe his name to a statement which is not strictly true, even though its falsity be shown by a supplementary entry in the minutes.
    Appeal from an order denying a motion to compel the defendant to subscribe his name to his examination in supplementary proceedings.
    It appeared that in obedience to an order of the county judge of Westchester county, the defendant Gilchriest appeared before a referee, and was examined concerning his property. At the close of his examination, plaintiff’s attorney moved that the defendant be required to subscribe the minutes of his testimony, and the referee so ordered. The defendant objected to obeying such order, upon the ground that the minutes, as he alleged, did. not correctly set forth what he had said, and represented him as saying what he had not said, and what he claimed to be untrue, and requested corrections in the body of such minutes. Thereupon, by consent of parties and of the referee, certain corrections were made; that defendant insisted upon making other and further corrections, by striking out of the body of such minutes certain words therein contained; that plaintiff’s attorney objected to such corrections, claiming the minutes were correct as they then stood; that defendant was then sworn in respect of such alleged errors, and under oath testified that such alleged errors existed in said minutes, which testimony so taken is annexed to, and forms a part of the report of said referee; that plaintiff’s attorney then consented and offered that defendant make such corrections as he might desire at the end of said minutes, but not in the body thereof, but the defendant refused to avail himself of such offer. Thereupon, on motion of plaintiff's attorney, the referee again ordered said defendant to subscribe said minutes, after making any desired corrections at the end thereof; but said defendant refused to obey said order, though professing his willingness so to do, if such minutes could be corrected in the body thereof by striking out therefrom certain words. Upon the foregoing facts., plaintiff moved at Special Term for an order requiring the defendant to subscribe to the minutes of his testimony. From the order denying such motion this appeal is brought.

      John II. Knaebel, for the appellant.

      W. F. Purdy, for the respondents.
   Gilbert, J.:

The objection of the defendant Gilchriest to subscribing the minutes of his examination was, that: “ the minutes did not correctly set forth what he had said, and represented him as saying what he had not said, and which he claimed to be untrue.” The papers do not show that the objection was not well founded in fact. But it is claimed that notwithstanding the minutes do not record what the deponent actually stated, the error can be corrected by a supplementary statement at the end of the deposition. We think that is an erroneous position. Persons examined under oath, are entitled to have their depositions accurately taken down in the first instance. If that is done, and they desire after-wards to correct their testimony, it' is proper to do so in the mode suggested by Harris, J., in Corning v. Tooker (5 How. Pr. 16.) But when the testimony actually given has been taken down erroneously, the -witness has a right to have the minutes, changed so as to conform to the testimony actually given by him. The court has no power to compel a witness to subscribe his name to a statement which is not strictly true, even though the falsity of it be declared by a supplementary entry in the minutes, for that would be unjust to the witness. If the minutes be in fact correct, or if incorrect they have been properly corrected, the witness may be compelled to subscribe his name to them, but not otherwise. (Rule 30.)

The order must be affirmed with costs and disbursements.

Present — Barnard, P. J., and Gilbert, J.; D teman, J., not sitting.

Order affirmed with ten dollars costs and disbursements.


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    SIDNEY J. MAULE, Respondent, v. JOHN CRAWFORD, Appellant.

      Promissory note — when non-negotidble — Usury — how it may be alleged.

    A note payable to a person therein named, and not to his order, is hot negotiable, and an assignee thereof takes the same subject to all equities existing between the original parties thereto.
    "Where an answer attempts to set up the defense of usury, it is not necessary that a formal agreement, either verbal or written, should be set forth in so many words; it is sufficient if a usurious agreement be in substance averred.
    It is enough to allege the facts as they occurred, and if such facts justify the . inference of a usurious contract, the answer, no demurrer having been interposed thereto, ought to be held sufficient.

      Nat. Bank v. Lewis (10 Hun. 468), distinguished.
    .Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial made upon the minutes of the justice and the exceptions.
    The action was brought upon a promissory note in the following words and figures:
    “ April 1, 1875.
    “ Eight months after date we promise to pay to Mr, George Harse the sum of two hundred and seventy-five dollars, for value received.
    “JOHN CRAWFORD,
    “SARAH CRAWFORD.
    “$275.00.”
    The defendant’s answer was as follows:
    “I. Alleges for a first separate and distinct defense that the note mentioned in the complaint, and upon which this action is brought, was given for a loan of two hundred and fifty dollars, upon which-the said George Harse wrongfully, unlawfully and corruptly reserved the sum of twenty-five dollars as a usurious interest of bonus, for the loan or use of the said sum of two hundred and fifty dollars for the period of eight months, specified in the said note.
    “ II. And for a second separate and distinct defense, the defendant alleges that before this action there was paid on account of said note the sum of one hundred and seven dollars.”
    Upon the trial the first defense was stricken out, on the ground that it was not alleged that the alleged usurious interest or bonus was reserved in pursuance of an agreement to that effect.

      John II. Knaebel, for the appellant.

      Hugo Hirsh, for the respondent.
    The plea of usury at common law, and the answer setting up the same defense under the Code, must set forth the usurious agreement, the names of the parties between whom it was made, the amount loaned, the amount of usury agreed to be paid, the length of time for which the loan was agreed to be made, and that the agreement was corrupt. (National Bank of Auburn v. Edwin Lewis, 10 Hun, 468 and cases there cited; Bank of Utica v. Wager, 2 Cow., 712; Bay nor v. Amer. Life Ins. and Trust Co., 1 Ch. Dec., 85; Loiory v. Chautauqua Co. Bank, Clark Ch., 67; Bank of Monroe v. Strong, Ibid., 76; Curtis v. Swartioout, 1 N. Y. Leg. Obs., 406; Gasner v. Labaio, 2 Ibid., 136; American Life Ins. do Trust Co. v. Bayard, 5 Ibid., 30; Mumford v. American Life Ins. di Trust Co., 4 N. Y., 463; Talmage v. Pell, 7 Ibid., 328; Crocker v. Colwell, 46 Ibid., 212; Pomeroy v. Ainsworth, 22 Barb., 118; Perrine v. Hotchkiss, 2 Lans., 416; R. S. [Banks & Bro. Edition,] Yol. II. p. 1165, Sec. 5.)
   Gilbert, J.:

The county judge erred in ruling that a payment upon the note in suit before the transfer thereof to the plaintiff, did not bind the latter without notice. The reverse is the established rule of law. The statute (1 R. S. 768, § 1), defines what shall give to a promissory note the quality of negotiability. It must be payable to another person Or his order, or to the order of another person, or to the bearer. The note in suit was payable to George Harse only, and was, therefore, not negotiable: The plaintiff took it subject to all equities existing between the original parties, for an assignee of a chose in action stands in no better position than his assignor, in respect to any thing which occurred before the assignment.

I think also that the court erred in striking out the defense of usury. The plaintiff should have demurred. (Lathrop v. Godfrey, 3 Hun, 742; National Bank of the Metropolis v. Orcutt, 48 Barb., 256.) That part of the answer was neither sham nor frivolous. On the contrary I think it is by. no means clear that it should have been held bad on demurrer.

It is averred that a note for $275 was given for a loan of $250, and that the payee thereof, wrongfully, unlawfully and corruptly reserved the sum of $25 as usurious interest for the loan of said sum of $250 for the period of eight months. Proof of a loan of $250 and a demand by the lender of a note for $25 more than the sum loaned, as compensation for, or interest upon the same, and a compliance with such demand by the borrower, certainly would have warranted the jury in finding that a usurious contract to that effect was made. It is not necessary that a formal agreement, either verbal or written, should be set forth in so many words. It is enough to- allege the facts as they occurred, and if such facts justify the inference of a usurious contract, the answer ■ought to be held sufficient. (Merch. Ex. Nat. Bank v. Com. Warehousing Co., 49 N. Y., 638.) No stricter rule of pleading-should be administered in a case of usury than in any other case. In the case of Nat. Bank v. Lewis (10 Hun, 468), it was held that the answer did not allege an agreement between the parties. We might doubt the correctness of that construction ot the answer in that case, but there can be no question that in pleading usury, a usurious agreement must bo in substance averred. No demurrer to the answer in this case having been interposed, we think it should have been held sufficient to admit the evidence-of the usury which was offered.

The order denying a new trial, and the judgment must bo reversed with costs.

Dr km an, J., concurred.

Present — Barnard, P. J., Gilbert and Dvkman, JJ.

Judgment and order denying new trial reversed, and new trial granted with costs to abide the event.


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    DANIEL B. NORRIS, Respondent, v. JOHN B. WOOD, impleaded, etc., Appellant.

      Mortgage — usury — when it is not a defense.

      la this action brought to foreclose a mortgage, the defense of usury was interposed by the mortgagor. At the time plaintiff took an assignment of the mortgage the mortgagor stated to him that “it was a good and bona fide mortgage.” Plaintiff paid the amount secured to be paid by the mortgage, partly in cash, and the balance by discharging a bond of the assignor then owned and held by him. Upon the trial defendant claimed that the mortgage-should only be sustained to the extent of the cash paid by plaintiff, and that as-to the balance he should be remitted to his action on the bond of the assignor, which would be revived by the avoidance of the usurious mortgage.

      Held, that the court below properly overruled this claim, and that the plaintiff was entitled to recover the full amount due on the mortgage. That as planitiff’s assignor not being a party to the foreclosure suit, would not be concluded by the judgment therein, and might thereafter claim that the bond and mortgage were not usurious, that plaintiff should not be left to a doubtful remedy against his assignor.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mortgage, assigned to the plaintiff by the mortgagee. The defease was usury.

      II. B. Bradshaw, for the appellant.

      Albert Smith, for the respondent.
   Gilbert, J.:

The plaintiff proved that before he purchased the bond and ' mortgage in controversy, he caused an inquiry to be made of Wood, the mortgagor, whether “ it was a good and bona fide mortgage,” and Wood was at the same time informed that the inquiry was made for the purpose of faking an assignment -of the mortgage. Wood answered the inquiry in the affirmative. This suit is one for the foreclosure of the mortgage. Wood set up the defense of usury, and upon the trial testified that the mortgage was usurious. No other evidence of usury was given. Wood also denied that he made the statement that the mortgage was good and bona fide. The court below found that the statement was made, and gave judgment for the plaintiff. We cannot reverse that finding.

The statement of Wood -was manifestly designed to induce the plaintiff to purchase the bond and mortgage, and it had that effect. Upon principles of equity, therefore, Wood is concluded from denying the truth of his statement. (Cont. Nat. B’k v. Nat. Bank of the Commonwealth, 50 N. Y., 581, and cases cited.) It is argued that Wood’s statement may be true, and yet that the bond and mortgage may be void for usury. That cannot be. A security which the law declares is illegal and void cannot be either good or bona fide. To be a good security it must be a valid one. We are of opinion that Wood was precluded from availing himself of the defense of usury.

The plaintiff is entitled to recover all that he paid for the assignment of the mortgage, but no more. (Payne v. Burnham, 62 N. Y., 69.) The testimony on this subject is rather loose, but it is fair to infer that the consideration of such assignment was the sum due on the mortgage, which was paid partly in cash and the residue by the satisfaction of a bond of the assignor for |1,700 or thereabouts, which the plaintiff held. The satisfaction of the assignor’s bond was in contemplation of law equivalent to money, so that in fact the plaintiff has parted with a sum equal to the amount of the bond and mortgage.

It is claimed that Wood is entitled to have the bond and mortgage avoided to the extent of that part of the consideration which the plaintiff paid for the assignment thereof by discharging the bond of the assignor, for the reason that the assignment of a usurious mortgage does not constitute a valid consideration for such discharge, and that upon the avoidance of a usurious security the original indebtedness is revived. We think that the rule invoked should not be applied. It is applicable when a usurious mortgage has been given in payment or discharge of a pre-existing indebtedness against the mortgagor. (Gerwig v. Sitterly, 56 N. Y., 214.) But it could not be applied in a case of this kind without the risk of doing injustice, for the assignor of the bond and mortgage is not a party to this action. The avoidance of the bond and mortgage now would not be binding upon him. On the contrary he would have the right in any proceeding to enforce-his liability upon his bond, to show that the bond and mortgage of Wood were not usurious. The plaintiff parted with a full consideration for the assignment of the bond and mortgage; he was induced by the representations of Wood to do so, and it would in our opinion be inequitable to substitute for the protection due to> an innocent assignee a doubtful remedy against his assignor.

The judgment should be affirmed with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed with costs.