author: Van Brunt, P. J.

text:
    Adolph Sternfeld et al., App’lts, v. Alfred L. Simonson, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)
    1. Election of remedies—When right lost.
    Where there exists an election between two inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. Where the remedies are not concurrent and the choice between them is once made, the right to follow the other is gone forever.
    '3. Same—When an ineffectual attempt not an election.
    A mere ineffectual attempt upon the part of a creditor to secure his debt by legal proceedings, does not preclude him from claiming the benefits as a creditor under an assignment.
    '3. Same—When creditor is not precluded from pursuing remedy UNDER ASSIGNMENT.
    One Robinson made an assignment to Kopper for the benefit of creditors. Afterward the plaintiffs herein instituted proceedings, alleging that the assignor had not turned over all his property. The defendant herein "became a surety on the assignee’s bond. Afterward these plaintiffs began an action against Robinson upon certain notes and issued an attachment; the sheriff made no levy thereunder; and the execution issued on the judgment obtained in the last mentioned action was returned nulla bona. Subsequently, an action was begun by the plaintiffs' against the assignee, resulting in a judgment in favor of plaintiffs. An execution being issued-upon that judgment and returned unsatisfied, this action was commenced against the defendant as one of the sureties upon the assignee’s bond. Held, that the plaintiffs were not precluded by anything they had done from pursuing their remedies under the assignment as creditors of the assignor.
    In 1882 one George Robinson, an insolvent merchant of New York city, executed to Henry J. Hopper, as assignee,, a general assignment of all bis property for the benefit of creditors. The assignee accepted the same, the assignment was recorded and the assignee executed and filed a bond and took possession of the assigned property. Afterwardsa proceeding was instituted by the plaintiffs in this action, they alleging that the assignor had not turned over all his property to the assignee, in which proceeding it was referred to a referee -to examine the assignor and assignee, the books- and papers of the assignor and any witness produced before the referee in respect to purchases made by the assignor during the year 1882 and as to what he had done with the goods, and if sold, as to what disposition he had made of the proceeds and as to whether he had turned over to the assignee the whole of his property, etc., and to ascertain the reasonable and just amount of the bond to be given by the assignee for the performance of his duties. The referee reported that large quantities of goods purchased had not been accounted for and that a bond of $7,500 would be a reasonable and just amount to be given by the assignee; and subsequently a bond in that amount was given in which the defendant was one of the obligors. On the 16th of October, 1882, the plaintiffs began an action against Robinson upon notes made by him held by them, and on the second of November, upon an affidavit verified by the plaintiffs, an attachment was issued against Robinson’s property, upon the ground that he had made said assignment to said Oowper with intent to hinder, delay and defraud his creditors. This attachment was immediately placed in the sheriff’s hands, but there is no evidence that any levy was made under it.
    Although there is a recital in the execution subsequently issued upon the judgment as hereinafter stated of such levy having been made, the evidence of the deputy sheriff fails to show that any such levy had actually been made. Judgment having been entered in this action, an execution was thereupon issued, and indemnity bonds were given to the sheriff, but the execution and attachment were returned.
      nulla bona on the 27th of December, 1882. In June, 1884, an action for an accounting was begun by the plaintiffs against the assignee which resulted in a judgment in favor the plaintiffs against Kopper. An execution being issued upon that judgment, and returned unsatisfied, this action was commenced against the defendant as one of the sureties upon the assignee’s bond. ,
    Upon the trial, the plaintiffs’ complaint was dismissed upon the merits on the ground that the plaintiffs had made an election between two inconsistent remedies and that they were confined to that which they first chose. From the judgment thereupon made this appeal is taken.

      M. L. Townsend, for app’lt; B. F. Blair, for resp’t.
   Van Brunt, P. J.

It is undoubtedly true that where there exists an election between two inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. Where the remedies are not concurrent and the choice between them is once made, the right to follow the other is gone forever. A long fine of authorities has been cited by the counsel for the defendant in support of this proposition. The most of these authorities tend to establish the rule that where a party has sued for the purchase-price of goods and recovered judgment, he cannot subsequently maintain an action upon the ground that the goods were obtained from him by fraud, or where the goods had been taken from the debtor by replevin or an action commenced for that purpose the creditor cannot subsequently sue for the purchase-price. But no authority has been cited that a mere ineffectual attempt upon the part of a creditor to secure his debt by legal proceedings, precludes him from claiming the benefits as a creditor under an assignment. In fact the case of Brown v. Littlefield (11 Wend., 467), cited by the defendants clearly lays down the rule to the contrary. It is said at page 471, that where a party has inconsistent rights or remedies, he may claim or resort to one or the other at his election. He is frequently bound by some decisive act of election in favor of one right or remedy from afterwards claiming the other right or pursuing the other remedy, which is inconsistent therewith. But the mere attempt to pursue a remedy to which he is entitled without obtaining any legal satisfaction therefrom, will not deprive him of the benefit of that to which he had originally a right to resort, especially where he has acted under a mistake as to the facts.

Applying this rule to the case at bar it is clear that there never having been any levy under the attachment issued by the plaintiffs and no property acquired thereby, and such proceedings being entirely futile, the plaintiffs are not deprived of their remedies under the assignment. In fact, long before the issuing of the attachment the plaintiffs had elected to proceed under the assignment, and their proceedings to examine the assignor and assignee in regard to the property and in respect to the amount of the bond which it would be proper for the assignee to give in the court of common pleas might have been a complete answer to their proceeding by attachment upon the allegation that the assignment was made with intent to hinder, delay and defraud the creditors, as they had elected to assert rights under the assignment itself, and after having made such election they could not attack it upon the ground of fraud.

In the foregoing statement it has been said that no levy was made under the attachment. It is true that the learned trial justice found that the sheriff had levied on the assigned property then in the possession of the assignee, under and by virtue of the plaintiff’s attachment, but the case is entirely barren of any proof to sustain this finding. The evidence of the deputy fails to show any such levy, and the evidence of the counsel for the plaintiffs shows that at the time of the issuing of the execution, instructions were given' not to levy, and there was no proof that those instructions were withdrawn. The recital in the execution that such a levy had been made, in view of the fact that the execution was returned nulla bona, was not sufficient in the face of this testimony to sustain the finding that a levy had actually been made. If the plaintiffs by means of their attachment proceedings had secured any of the property covered by the assignment then a different question might be presented. But they having in no way interfered with the assigned property by their process, and having acquired nothing by those proceedings, and having obtained no legal satisfaction therefrom, were not deprived of the benefit of the right to which they might originally have resorted. The case of Iselin v. Henlein (16 Abb. New Cas., 79) proceeds expressly upon the ground that an attaching creditor seized and obtained possession of the assigned estate by his attachment, and in R. v. Clark (46 N. Y., 354) the decision is 'based upon the ground that the plaintiffs’ assignor having retained possession of the property he and his assignees were' precluded from maintaining an action for its conversion.

It is not necessary to say anything in regard to any of the rights which the plaintiffs took by the assignment of Mary Robinson’s and Leary’s claim, as they clearly obtained no greater rights than had previously existed by virtue of their own position as creditors of the assignor.

We are of opinion therefore that the plaintiffs were not precluded by anything that they had done from pursuing their remedies under the assignment as creditors of the assignor.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels and Brady, JJ., concur.


source: Caselaw Access Project

author: Lawrence, J.

license: Public Domain

text:
    Ann Mulholland, App’lt, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Contract—Action nor compensation.
    In an action brought by the assignee of a contract for compensation for work, labor and services performed thereunder, the questions having been resolved into whether the plaintiff was entitled to compensation for inspection fees beyond the time allowed and occasioned by the defendant in the contract, and as to whether a counter-claim for damages for failure in some respects to comply with the contract. Held, that if the contractor had excused delay in the prosecution of the work by proof that it was due to the fault of the defendant, the amount paid for the inspection fees during that time should be allowed the plaintiff.
    3. Verdict—On conflicting evidence—Will not be disturbed.

      Held that the verdict being such that it must be assumed that the delay was caused by the neglect of the plaintiff’s assignor and that verdict having been found upon conflicting evidence the appellate court could not interfere with it,
    3. Same—When court not justified in interfering with.

      Held, that the evidence of the counter-claim having been submitted to the jury and necessarily entered into their consideration, and the point having been fairly submitted to them the court would not be justified in interfering with their verdict.
    Appeal by the plaintiff from a judgment in her favor rendered upon the verdict of a jury at circuit and from an order denying the plaintiff’s motion for a new trial. The plaintiff by virtue of sundry assignments is the assignee of John Mulholland, who on the 9th of November, 1877, entered into a contract with the respondents for regulating and grading and setting curb and gutter stones, and flagging Sixty-sixth street from Eighth avenue to the Boulevard.
    The plaintiff claims in her complaint as a first cause of action that the engineer in charge of the work neglected to make proper surveys of the same and to give to her assignor the proper grades and levels; and that the said grades were changed, and that in consequence thereof her assignor was delayed in performing said work and that the same was not finally completed until December 4, 1884; that according to the prices named in the contract the value of said work is $13,808; and she alleges that the defendants at various dates have paid on account thereof the sum of $7,880.60, leaving a balance due by the defendant for the work executed as aforesaid of the sum of $5,927.89.

      As a second cause of action, it is alleged that the engineers appointed, and for the time being in charge of the work, were bound to mark the line of the grade to which the earth or rock upon the line of the same should be excavated : and that said engineers so carelessly and negligently conducted themselves that the defendant by and through one or more of them marked and designated erroneous hues of grade, and furnished erroneous levels; and that the plaintiff V'assignor was thereby put to great expense and suffered great loss and damage to at least the sum of $10,000.
    The answer of the defendant, after admitting the payment of $1,880.60, alleges that one Preston, as the assignee of W. B. Pitch, filed with the comptroller a written notice of claim against the plaintiff’s assignor, by which said Preston acquired a hen upon the moneys due to the plaintiff’s assignor in the sum of $2,029.10, with interest; that subsequently an action was begun to foreclose said lien, and that certain proceedings were had therein resulting in a settlement whereby said Preston agreed to receive the sum of $2,029.10, without interest; and that on the 9th of September, 1885, the comptroller paid the said sum to the said Preston as assignee. It is then averred that the plaintiff’s assignor assented to and requested the payment of said sum, and executed a release to the defendants for the amount thereof. The defendants further aver that the plaintiff’s assignor failed to complete his work within the time specified, to wit, within 300 days from the date of his contract, November 9th, 1811; and that by reason of his failure the defendants became liable to pay, and did pay under the provisions of the contract the sum of $3,642 for and on account of inspector’s wages, to wit, for a period of 1,214 days, for which said period over and above the time specified the said assignor of the plaintiff had failed to complete his said work.
    It appears that in 1880, the plaintiff’s assignor then being in default, the legislature passed an act providing that in all contracts for local improvements in the city of New York, thó time for completing the work thereunder in all cases where the time allowed by the contract for completing the same had not expired, should be extended sixty days ; and in all cases where the time had expired, the same should be extended for sixty days from the date of the passage of this act. (Laws of 1880, chapter 556.) Under this act the neglect of the plaintiff’s assignor to complete his work within the time specified in his contract was excused, and an extention of sixty days from the 10th of June, 1880, was thereby given to him; and it is from the 10th of August, 1880, that the computation of the inspectors wages charged to the plaintiff’s assignor has been made. The defendants also allege as a counter-claim, that in and by the surveyor’s certificate, the amount of work which had been don-1 by the plaintiff’s assignor it appeared that there had been 20,737' cubic yards of rock excavated, for which the plaintiff’s assignor was duly paid, whereas in point of fact the amount of rock actually excavated did not exceed 19,-737 cubic yards; and that the plaintiff’s assignor was paid on account thereof $333.30 in excess of the amount due for the work done under the contract.
    An additional answer was afterwards served by the defendants in which a further counter-claim was set up to the effect that the plaintiff’s assignor had neglected to remove the rock in said street to the sub-grade line, which is two feet below the established grade, to the aggregate amount of 1,000 cubic yards projecting above said sub-grade fine; and that to remove the same, and to make the street conform to the contract, would cost at least two dollars per yard, making an aggregate sum of $2,000, which said sum the defendant’s claimed to recover and set-off against the claim of the plaintiffs herein.

      L. Laflin Kellogg, for pl’ff and app’lt; E. H. Lacombe, counsel to the corporation; David J. Dean, for resp’t.
   Lawrence, J.

Upon the trial it was conceded that the plaintiff was chargeable with the sum of $2,029.10 paid to the assignee of Fitch as set up in the answer; and the principal questions arising in the case are, therefore, whether the plaintiff is entitled to any sums in addition to the contract price agreed upon, and whether there was evidence on the part of the defense sufficient to establish the first counter-claim, the court having directed that the second counter-claim set up in the defendants’ additional answer should be dismissed.

It is admitted by the defendants that the balance remaining due and certified by the engineer in charge of the work, after making the deductions claimed by the city, amounted to the sum of $256.70. But it is claimed by the appellant that the charge of $3,642 for inspection was wrongfully imposed by the defendants while the contract was delayed by the act of their engineer. And it is further claimed that the sum of $10,000 damages was caused by the act of the defendant in giving to the contractor wrong grades, which imposed upon him an immense increase of cost in doing the work, over and above contract price.

It does not seem to be disputed that the plaintiff’s assignor was paid under the terms of the contract for any additional labor and expense to which he was put in consequence of any error which may have been committed by the engineer, Leonard, in regard to the depth of the excavation. But the plaintiff contends that as'such excation cost more and was reasonably worth a price in excess of the contract price, the learned judge before whom the case was tried erred in excluding evidence upon the question as to the actual value of such additional excavation.

Upon turning to the contract it will be found that it contains the following provision:

And the said party of the second part hereby further agrees, that in case the grade of the street shall be changed during the progress of the work, or any other modification of the said work shall be ordered by the Commissioner of Public Works, that he will conform to the altered grade- or other modifications of the work at the prices specified herein, as far as they are applicable, and for any work, the price of which is not specified in this contract, the provisions herein contained in relation to extra work shall apply.

The contract further provides as follows:

“And the said party of the second part hereby further agrees, that in case any work is required to be done in order to carry out the provisions of .this agreement, which is not called for in the specifications, that he will go on and do the same without any claim for extra compensation therefor, unless ordered in writing by the commissioner of public works to do the same as extra work, and a price therefor agreed upon previously to its commencement.”

It is not claimed in this case that the work alleged to have been done by the contractor in consequence of the alleged error of Leonard, was ordered to be done by the commissioner of public works as extra work.

It seems to us, therefore, that the provision above referred to, that if the grade should be altered, or modifications of the work should be required, the work attendant thereupon should be performed at the prices specified in the contract for similar work, applies; and that as it is conceded that for such additional work the assignor of the plaintiff has been paid at the contract rate, no further claim can be made by the plaintiff upon the city.

It is contended on the part .of the respondents that under the contract 'no obligation rests upon the city to furnish grades to the contractor; and that when the plaintiffs-assignor had completed his work, it was the business of the engineer appointed by the commissioner of public works to-give to him a certificate of such completion; and in case of a refusal to give such certificate, if in point of fact the street was regulated according to the profile, the contractor would have been entitled to recover without a certificate, upon the ground that such refusal was unreasonable. Andl the cases of The Bowery National Bank v. The Mayor, etc. (63 N. Y., 337) and Bancker v. The Mayor, etc. (8 Hun, 409) are cited. It does not, however, seem to us necessary in this case to definitely determine the question whether under the contract the city was bound to furnish an engineer to give to the plaintiffs’ assignor the grade fine of the street. And our reasons are these: The learned justice before whom the case was tried, while holding that the city was under no obligation to furnish grades, distinctly charged the jury that if the city undertook the duty to furnish grades and said they would, and allowed the contractor to believe they would, then the contractor is excused for any delay arising because of the city’s failure to do that which they undertook to do and induced him to wait until they should. He also distinctly submitted to the jury the question whether the contractor could go on and complete this work without any grade lines at all until he came to the finishing of the work to arrange the line of the curb and decide what the subgrade should be.

He also charged the jury as follows: “It is for you to determine as to how far the contractor has excused the fact of the delay in the work. If he has been unable for all the time he has been unable to complete, by reason of the failure, or any failure of Mr. Leonard to furnish this information, if it was necessary for him to furnish it in order that he might go on with the work, for that amount the contractor in this case is entitled to any allowance upon this question of inspectors’ fees. Inspectors’ fees have been charged to him from the 10th of August, 1880, down, to the 4th of September, 1884. Upon an inspection of the inspectors’ books there seems to have been found that certain work was not done and that would account for the difference between the whole amount of working days between the 10th of August, 1880, and the 4th of September, 1884; but for every day that it was possible to do work the inspectors’ fees were charged, and the amount which was charged was 1214 days, amounting in all to $3,642. If Mr. Mulholland, the contractor, has excused the delay in the prosecution of this work, under the principles I have given, then, whatever amount he has excused, he is entitled to recover from the city on account of these inspectors’ fees. They are charged to him at the rate of three dollars a day, and he would be entitled to recover in addition to the $256.70, for just so many days as he is excused for the delay in the work, at three dollars a day.”

It seems to us that under the charge of the learned judge irrespective of the question whether the obligation rested upon the city to give grade lines to the contractor or not, the question was fairly submitted to the jury as to whether the delay in fulfilling the contract on the part of the plaintiffs’ assignor was due to the neglect of the defendant’s engineer, or to that of the contractor. It must be assumed from the verdict of the jury that the jury found that the delay was caused by the neglect of the plaintiffs assignor, and not by that .of the defendant’s engineer; and as the evidence is conflicting, under well-settled principles this court cannot interfere upon appeal. Beckwith v. N. Y. C. and H. R. R. Co., 64 Barb., 308.

The evidence in the case undoubtedly shows that the contractor before the passage of the act of 1880, hereinbefore referred to, was in default; and that even after that act he was not within the limit of time permitted to those who were in default, for the completion of their contracts. A work which was to have been completed within 300 days from November 9, 1877, was not completed until about .seven years after the execution of the contract. We do not think that the court should be astute to criticise the verdict of a jury in substance finding under such circumstances that the contractor is not entitled to relief.

We also agree with the counsel to the corporation that there was evidence on the part of the defense sufficient to establish the counter-claim for the price of 990 cubic yards of rock, which have been paid for in excess of the amount actually excavated; and that as this testimony was submitted to the jury, and must have entered into their consideration in arriving at the result which they reached, the court would not be justified in interfering with their verdict. The question as to that counter-claim was fairly submitted to the jury by the learned judge, and they must have understood the point which was presented to them.

Many exceptions were taken, during the progress of the trial, to the rulings of the court in regard to the admission and exclusion of evidence. We deem it sufficient to say that we have examined them all; and that in the view which we have taken of the general features of the case we are not prepared to hold that any of those rulings, even if erroneous, could have affected the result attained by the jury.

For these reasons we are of the opinion that the judgment of the court below should be affirmed.

Potter, J., concurs.


author: Per Curiam.

text:
    Alfred Beinhauer, App’lt, v. Amelia A. Gleason, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Judgment—Appeal—When time begins to run.
    The time to appeal does not run until the service of a copy of the completed judgment. To make a complete judgment the costs must he taxed and entered at the foot of the decree, or notice of waiver of costs must be served with the decree.
    Appeal from order denying motion to vacate ex parte ■arder, etc.

      P. L. Wilson, for app’lt; W. Sutphen, for resp’t.
   Per Curiam.

The case of Thurber v. Chambers (60 N. Y., 29), determined that a judgment is not complete until the costs are taxed and entered at the foot of the decree; and consequently the time to appeal did not run until the service of a copy of that decree as provided by the act after it is complete.

If the party desired to avail himself of the judgment and to make it necessary that the notice of appeal should be served within thirty days after the entry, he should have served notice of waiver of costs, with service of a copy of the decree as it then stood.

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


author: Van Brunt, J.

text:
    Universal Beer Keg Company, App’lt, v. John W. Brown, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Contract—Ratification—Effect of.
    This action was brought by the plaintiff corporation to recover damages for breach of contract. Held, that a contract entered into between a party and a representative of the corporation whose acts were subsequently ratified was a valid and binding one between the parties.
    2. Same—Third party for whose benefit contract was made may bring action for breach.

      Held, that a contract entered into for the benefit of the corporation, even without its knowledge, if subsequently adopted by it, was one for the breach of which it might recover damages by action.
    S. Tender—Objections to subject matter—When only available.

      Held, that when a tender of the transfer of certain rights contracted to be transferred was made and refused without reason assigned, it would not be allowed to'support such refusal by raising objections to the subject matter of the tender which might have been obviated if promptly raised.
    4. Contract—Execution of—Delivery is essential element of.

      Held, that delivery was one of the essential elements of the execution of a contract in writing.
    Appeal from judgment entered on dismissal of complaint at the close of plaintiff’s case upon trial at the circuit.

      E. P. Johnson, of counsel for pl’ff and app’lt; Benj. Estes, of counsel for def’t and resp’t.
   Van Brunt, J.

This action was brought to recover damages by reason of the non-performance upon the part of the defendants of an alleged agreement entered into between the plaintiff and the defendant on or about the 14th of September, 1885. The plaintiff in this action is a domestic corporation duly organized under the laws of the state of New York; and on the 14th of September, 1885, an. agreement was entered into between Joseph L. Spofford, on behalf of the plaintiff, and John W. Brown, of Brooklyn, whereby said Spofford agreed for said company to-transfer and assign to said Brown the exclusive right to manufacture and sell in certain New England states the articles provided for and patented under certain letters patent of the United States issued to the plaintiff, and the defendant Brown agreed to pay to said company for said transfer and assignment the sum of $1,200 upon its execution in due form; and also to manufacture a certain number of kegs per annum, and to pay to said company the sum of twenty-five cents per keg or package as royalty; he, however, was to be credited upon the amount which should become due and payable for royalties as aforesaid in the first year the said sum of $1,200 paid by him in cash.

It was further agreed between the parties that at the expiration of one year from the date of said transfer the defendant Brown should have the right to abandon the manufacture of said kegs and packages under this agreement upon his executing to said company a re-transfer of said right to manufacture, and from that time should be discharged from all further obligation to manufacture or liability to pay. It also provided that the company should have the right upon payment to Brown of $5,000 to terminate the agreement and require a re-transfer of said rights, provided said Brown should have ceased to manufacture under said letters patent, or should fail to make reasonable exertions to do so.

On the 21st of September, 1885, Spofford, as president of the plaintiff affixed the corporate seal to an agreement on behalf of the plaintiff and acknowledged the same, and on the 26th of September, 1885, at a meeting of the board of directors of the plaintiff a motion was made and carried that the president be authorized to execute and deliver to J. W. Brown the agreement of the company pursuant to the preliminary agreement dated September 14, 1885. In December, 1885, there was tendered on the part of the plaintiffs the agreement signed by Spofford on the 21st of September, 1885, which agreement the defendant Brown, absolutely refused to take. A demand was made at the same time for the $1,200, which was also refused. At the time of the tender Brown did not take the agreement nor look at it nor read it, and, so far as the record shows, gave no reason for his refusal. It is claimed on the part of the defendants, in support of the ruling of the learned court, that the plaintiff wholly failed to prove any cause of action against the defendant, and that the complaint was properly dismissed. First, because the agreement of September fourteenth was not a contract by the defendant with the plaintiff, it never having been executed by the company, nor by any officer thereof, nor by any person authorized by the company.

The answer to this objection seems to be twofold. In the first place, the agreement of September 14, 1885, appears to have been executed by Spofford on behalf of the plaintiff, and although he may not then have had any authority for the execution of the agreement, yet by the resalution of September 26, 1885, his action was ratified by the board of directors of the corporation when they directed that the president execute and deliver to the defendant the agreement of the company pursuant to the preliminary agreement dated September 14,1885. But there is another ground upon which the right of the plaintiff to bring the action may be supported, and that is, that even if the agreement was between Spofford and Brown as individuals, it appears upon the face of the agreement that it was made for the benefit of the plaintiff, and that the plaintiff was to receive a certain sum of money and also to receive royalties upon its conveying certain rights to the defendant Brown. In the case of Lawrence v. Fox (20 N. Y., 268), it was held that even though' the corporation was not a party to the agreement, it having been executed for its benefit, it had the right to maintain an action thereon. The court said: “An action lies on a promise made by the defendant for a valuable consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration.

“Such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party, nor cognizant of it when made.”

Secondly.. Because the plaintiff never performed, nor offered to perform according to the terms of "the alleged agreement of September 14th, 1885, alleging that the agreement to transfer and assign to Brown the exclusive right to manufacture and sell in certain New England states was not complied with,, because no proper transfer or assignment was tendered, and because the action was prematurely brought. Conceding for the purpose of the disposition of this appeal that the proposed transfer of September 21st, 1885, contained provisions which were not authorized by the agreement of September fourteenth, they were of a character which, if objection to the receipt of the transfer had been made upon that ground, might have been easily obviated. The rule in respect to tender seems to be well settled that where the refusal to accept the tender absolutely is made, the only question which can be considered is the question as to the right of the party to make the tender, and that the party refusing the tender cannot raise in support of such refusal objections to the form of the tender which, if they had been stated at the time, might have been easily obviated. Duffy v. O’Donovan, 46 N. Y., 228.

The absolute refusal of the defendant without reading or looking at the instrument tendered, was an indication upon his part that he did not consider himself under any obligation to receive or accept any instrument whatever, whether it was in exact conformity to the agreement or not. No intimation was given to the plaintiff that the tender was rejected, because of non compliance in every respect with the requirements of the agreement of September fourteenth, but the refusal was absolute and unconditional, without the defendant knowing anything of what it contained. It is too late for the defendant now, after careful study, to pick out' fancied defects in the proposed transfer tendered, which defects, if any, might easily have been obviated on the part of the plaintiff, if objection had been taken to the form of the transfer.

It is claimed on the part of the defendant that the condition of the agreement of September fourteenth, requiring the execution in due form of said transfer and its delivery to him from said company has never- been complied with. The transfer was signed and acknowledged on the 21st of September, 1885 ; the authority for its execution and delivery given by the company on the twenty-sixth of September, and the tender made in December, 1885, long after the giving of the authority to execute.

In raising this point, the learned counsel seems to have lost sight of the fact that signing and acknowledging a paper is not an execution of the paper. A necessary element of execution is delivery In order that there should be an execution of an instrument, it must be signed and delivered. The signing of the paper is but a small part of the execution, the delivery being the essential act. There-; fore, at the time of the completion of the execution of this paper in December, 1885, the president had received the full authority to execute and deliver, and such execution and delivery was not complete until the tender was made at that time.

We think, therefore, that the learned court erred in dismissing the complaint, and a new trial must be ordered with costs to the appellant, to abide the event.

Brady and Daniels, JJ., concur.


author: Bartlett, J.

text:
    People, ex rel., Elizabeth Van Riper, Resp’ts, v. The House of the Good Shepherd, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887)
    1. Commitment of vagrant children—Facts necessary to authorize AN ARREST OR COMMITMENT, PENAL CODE § 291.
    A child under the age of sixteen was arrested and detained under a commitment which charged that she was improperly exposed and neglected. Meld, that this did not warrant her arrest and detention as there was no allegation that she had been so exposed or neglected by her parent or other person or persons having her in charge. Penal Code § 291.
    2. Same—“ Guardianship ” defined.
    The “ Guardianship ” contemplated by section 291 of the Penal Code is not the mere temporary supervision of a companion in the street. It is only the lack of that guardianship which corresponds to the lack of parental care generally which falls within the intent of the statute.
    3. Same—Being in the company of reputed prostitutes.
    The fact that on a single occasion, a child under sixteen while in a much frequented public park, and about to return to the comfortable home in which she lived with her parents, was found in the company of a reputed prostitute of whose character she was ignorant, being herself a good and virtuous girl, does not justify her arrest as " being in the company of reputed prostitutes.”
    Appeal from a special term order discharging the relator’s child from custody.

      John B. Pine, for appl’t; Dennis McMahon, for resp’ts.
   Bartlett, J.

The relator’s child, Florence Van Riper, was arrested,' brought before a magistrate in the city and county of New York, and committed to the institution known as the New York Catholic Protectory, under section 291 of the Penal Code.

.The commitment states that the child was brought before the magistrate “upon the allegation under oath of Henry E. Stocking, that the said child Florence Van Riper, on the fifth day of October, 1886, at the city and county aforesaid, was found improperly exposed and neglected and wandering in the public park in said city, to-wit: in Union Square park in said city, without any proper guardianship; that the said child was found in the company of one Mary Ryan, who is a reputed prostitute, in violation of the provisions of the Penal Code of the state of New York and the acts amendatory thereof.”

The commitment further recites that it has been proven to the satisfaction of the magistrate that the material allegations and matters set forth and charged in the complaint are true and that the child was actually and apparently under the age of sixteen years, being fourteen years old, and “was found improperly exposed and neglected and wandering in the public park, to wit, in Union Square park, in said city, without any proper guardianship; that the said child was found in the company of one Mary Ryan, who is a reputed prostitute, in violation of the Code and laws aforesaid.”

In response to the writs of habeas corpus and certiorari sued out by the mother in this proceeding, the New York Catholic Protectory returned this ''commitment as its authority for the detention of the girl. The relator filed a traverse to the return, alleging, among other things, that the father of the child, in whose house she was then residing, received no notice of the proceeding and was not present at the examination; that the child “was not destitute of means of support, but was, at the time, living in the house of her parents, who had a comfortable home for her at that time in Hoboken, in the state of New Jersey, nor did the said Florence Van Riper know that the said Mary Ryan was a reputed prostitute, but she herself was a religious girl and good and virtuous; ” and that the said Florence Van Riper, when found, “ was preparing to return to her said home, and, childlike, was merely enjoying for the moment the pleasant surrounding of said Union Square.” To this traverse a demurrer was interposed on the ground that it conceded that the child was detained under a commitment which was the final judgment of a court of competent jurisdiction.

The matter was brought to a hearing at special term upon the return, traverse and demurrer, and the learned justice before whom the case was heard discharged the child from custody because it was admitted by the demurrer that her father, with whom she lived and under whose guardianship she was, had no notice of the proceeding which deprived him of his child.

As to this point, the appellant contends that inasmuch as the mother was present at the examination (as is recited in the commitment and not denied in the traverse) no further notice was required.

Apart from any question of notice, however, we are of the opinion that the commitment, considered in view of the admissions made by the demurrer to the traverse, fails to set out facts sufficient to justify the detention of the child.

It charges that she was improperly exposed and neglected. This did not warrant her arrest unless she had been so exposed or neglected by her parents or other person or persons having her in change, and there is no allegation to this effect. Penal Code sec. 291, subd. 2.

It charges that she was wandering in the park without any proper guardianship. This did not bring her within the description of children “ not having any home or other place of abode or proper guardianship.” Penal Code, sec. 291, subd. 2. The guardianship contemplated by section 291 of the Penal Code is not the mere temporary supervision of a companion in the ctreet. The statute was not designed to provide for the arrest and commitment to a charitable institution of every young child who should happen to get into the street or park without a suitable custodian. It is only lack of that guardianship v/hich corresponds to the lack of parental cere generally, which falls within the intent of the clause we have quoted.

Finally the commitment charges that the child was found in the company of Mary Ryan, a reputed prostitute.

The Penal Code authorizes the arrest of any child actually or apparently under the age of sixteen years who is found

frequenting or being in the company or reputed thieves or prostitutes.” Section 291, subd. 4.

The facts in this case, as admitted by the demurrer to the traverse are that on a single occasion, the child while in a much frequented public park, and about to return to the comfortable home in which she lived with her parents, was found in the company of a reputed prostitute, of whose character she was ignorant, being herself a good and virtuous girl.

It may be difficult accurately to define just what conduct on the part of a child amounts to “being in the company of reputed prostitutes ” within the meaning of subdivision 4 of section 291 of the Penal Code. That it means something more, however, than appears in the case of the girl, we entertain no doubt. A construction which would make it include her conduct on this occasion, would render the child of the worthiest citizen, who happened to lose her way in the public streets, and sought guidance from the first woman she met, liable to arrest and incarceration, if the person from whom she asked information and who accompanied her a block or two to show her the way, chanced to be known to a police officer as a reputed prostitute.

The relator’s child was properly discharged from custody, and the order appealed from should be affirmed, with costs.

Macomber, J., concurs.


author: Brady, J.

text:
    Welcome C. Barney et al., Resp’ts, v. John M. Forbes, Jr., Appl’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Statute of frauds—Promise to pay "debts of another—When not-WITHIN THE STATUTE.
    Where the purpose of a promise to pay the debt of another is to secure a benefit to the promisor by relieving his property from a lien or securing or confirming his possession, the promise is original and not collateral, although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such a debt and although the performance of the promise may result in discharging the debt. Such a. promise is not within the statute of frauds.
    3. Same—When for the benefit of the promisor.
    The services of one Mur, as a bookkeeper, had been secured for thfr China house of which the defendant was a member, and Mur having stated his inability to proceed thither on account of his indebtedness to-the plaintiffs, a written engagement to secure the payment of said debt and the release of certain bonds was entered into by the defendant for the-purpose of enabling Mur to keep his contract with the defendant’s firm. Held, that the promise was made for the benefit of the defendant and was Rot within the statute of. frauds.
    8. Same—Consideration for promise.
    It being claimed that the plaintiffs having no title to the bonds, because Mur, who deposited them with the plaintiffs, was not the owner, there was no consideration for the promise. Eeld, that the possession of the bonds-gave the plaintiffs a quasi title to them and left the question of their right to retain them one which might be contested and successfully, and that the return of the bonds was therefore a consideration for the promise.
    Appeal from judgment entered on verdict of a jury directed by the court,

      J. It. Ward, for app’lt; Hy. S. Bennett, for res’pts.
   Brady, J.

On the 31st óf August, 1882, one John H. Mur was indebted to the plaintiffs in the sum of $9,941.88 for advances made in the purchase of stocks as securities for which he deposited with them eight $1,000''first mortgage bonds of the B. and E. B. B. Co., which at the time mentioned, were in their possession. The defendant was a member of Bussell, Sage & Co., of Shanghai, China, and employed Mur to proceed to China and act as their bookkeeper. Mur said that he could not go until he obtained possession of the bonds, which the plaintiffs held, and which they refused to surrender unless the bebt was paid. The result of that was an interview with Mr. Forbes who sent for Mr. Raymond, one of the plaintiffs, on the 29th of August, 1887. Mr. Raymond subsequently received a communication from Mr. Mur dated August 31, 1882, 'and one from Mr. Forbes, both of which he stated were sent to him by Mr. Forbes. He was acquainted with the handwriting of Mr. Forbes, and the communication signed by him, he said was in his handwriting. The communications thus received from the defendant and Mr. Mur are as follows:

New York, August 31, 1882. Messrs. Barney, Raymond & Co., 34 Broadway.
Dear Sirs—Mr. J. M. Mur being under engagement to Messrs. Bussell & Co., as their head bookkeeper, will have $4,000 (Mexican) per annum as salary, and I will undertake that the agreement made by him to pay a certain amount to you each year, shall be carried out, until the indebtedness to your firm is liquidated.
Yours truly,
JOHN M. FOBBES, Jr.
New York, August 31, 1882. Messrs. Barney, Raymond & Co., New York:
Dear Sirs—As you are aware, I have accepted a position in China in the house of Messrs. Bussell & Co., at a salary of $4,000 per annum, and in order to liquidate my indebtedness to you of $9,941.88 as per account rendered yesterday, I now pledge to you to remit you from China the sum of $3,000 (three thousand dollars per annum), in quarterly payments, until the said account is closed. There shall be no failure on my part, and I trust with this assurance and the letter enclosed, that this arrangement will be satisfactory and that you will release the bonds in question.
I am, dear sirs,
Very respectfully yours,
J. M. Mur.

On the receipt of these letters, the bonds were surrendered by the plaintiffs.

Mr. Baymond also testified that he had an interview with the defendant in August, 1885, at which time the defendant called upon him at his office in answer to several letters that he had written to him in regard to the claim against him, on which occasion he said that Mur had left their employment, and that although it was hard on him, he proposed to stand up to his guaranty. The bonds, it appeared, belonged to OHphant & Co., and Mur never had any title to them. Indeed, it may be inferred that he had improperly obtained possession of them, which was doubtless the reason why he could not leave until they were surrendered. The defendant stated on his examination that he had no knowledge that there were any bonds in the possession of the plaintiffs as bonds ; but he did know that it was necessary for Mur to get possession of some securities in the hands of the plaintiffs before he could keep the engagement he had made with the firm of Bussell & Co., of Shanghai, and although the defendant at first stated he would have nothing whatever to do with it, finally determined that he would, and did by the letters which were written. The testimony of Mr. Forbes undoubtedly justified the conclusion that he knew they were securities in the hands of the plaintiffs which Mr. Mur desired to be surrendered, and that for the purpose of obtaining such surrender he wrote the letter mentioned. Indeed, he said, “The reason given by Mr. Mur why he wanted those securities was (he said that he could not go away), that he owed this debt to Barney, Raymond & Co., with these securities in their hands. The understanding was that these securities had a certain .value, and they were unwilling to relinquish the securities unless they had some arrangement made with me that a part of his salary would be remitted. It was with that understanding that I wrote that letter.”

It is insisted that the engagement of the defendants is void within the statute of frauds, inasmuch as no consideration is stated in the contract. It is not necessary to consider this proposition, as the consideration clearly and distinctly appears, which was the surrender of the securities. The letter of the defendant refers to the indebtedness of Mr. Mur, and the accompanying letter of Mur refers to the bonds, and expresses the hopo that the agreement of the defendant, which was sent at the same time with his own letter, will be satisfactory and that the bonds will be released. The statement of the defendant that his letter was written with reference to the bonds, which were by him designated as securities, was received and given without objection.

The consideration sufficiently appears by those two papers thus considered. .

_ Aside from that, however, the promise is an original one, and comes within the third class of cases enumerated in Leonard v. Vredenburgh (8 J. R,, 28), viz., where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm running between the newly contracted parties. In this class of cases the subsisting liability of the original debtor is no objection to a recovery. And when the purpose of the promise is to secure a benefit to the promissor by relieving his property from a hen, or securing or confirming his possession, the promise is original and not collateral, although a third person may be personally hable for the debt, and the promise may be in form a promise to pay such a debt,_ and although the performance of the promise may result in discharging the debt. See, also, Pume v. Cooler, 77 N. Y., 91, and cases cited; Ackley v. Parmenter, 93 id., 425.

The facts as they have been detailed show that the services of Mur as bookkeeper had been secured for the China House, of which the defendant was a member, and that having stated his inability to proceed thither on account of his indebtedness to the plaintiff, the written engagement was entered into for the purpose of enabling him to keep his contract with the defendant’s firm, and thus the promise was made for the benefit of the defendant. It must also be said that the contract resulted in harm to the plaintiffs, who gave up m consequence of the engagement the bonds which they held as security for Mur’s debt.

It is suggested that the bonds not having been owned by Mur, and the plaintiffs having no title to them, the sur render did not amount to any consideration whatever. But this is an erroneous proposition. The possession of the bonds gave the plaintiffs a quasi title to them, and left the question of their right to retain them one which might be contested, and successfully.

Whatever interest they had in the bonds, whether legal or equitable, they abandoned by the surrender; and that was sufficient beyond doubt to create a circumstance to their prejudice.

The exception to the exclusion of evidence showing the period during which Mur was in the employ of the defendant, was not argued on the brief, and it is supposed was abandoned. It is sufficient to say, however, that from the character of the engagement made, • the testimony was properly excluded as irrelevant.

For these reasons we think the judgment was right, and it should be affirmed, with costs.

Daniels, J., concurs.


author: Van Brunt, P J.

text:
    Gustav Frank, App’lt, v. Montz Block, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Counterclaim—Verdict—When should be directed in favor of DEFENDANT.
    This action was brought to recover, by a general assignee, a balance alleged to be due the assignor of the plaintiff. Against this the defendants set up a counterclaim as follows, alleging that the plaintiff’s assignor had accepted an order to ship them $3,000 worth of goods; that he shipped a part of them, being those mentioned in the complaint, and that the defendant claimed he should ship the remainder whereupon it was agreed that the defendant should execute his promissory note for §800, and that then the plaintiff’s assignor should ship the balance of the order, agreeing that if he did not do so, he would pay the defendant §1,000. That the defendant did execute and deliver the said promissory note, but that the assignor of the plaintiff refused to deliver the order to the damage of the defendant of the sum of $1,000. The defendant offered as proof of the agreement a paper signed by the plaintiff’s assignor wherein he agreed in default of his fulfilling the order to pay the defendant §1,000. No evidence was given of the damage sustained by the failure to execute the order and the complaint was dismissed upon the ground that the defendants had showed themselves entitled to an off-set against the assignee to at least the amount of the claim for which he brought suit. Meld, that in case the counterclaim had been established the proper course would have been to have directed a verdict in favor of the defendant and not to have dismissed the complaint.
    2. Contract—Breach or—Liquidated damages.

      Held, that in the lack of proof of damages sustained by; the defendant it was necessary to determine whether the sum mentioned in the contract was to be considered as liquidated damages.
    3. Same—Rule or construction.

      Held, that the construction of the contract in this respect was to be gov erned by the intention of the parties subject to the following rules, viz.: That the damages caused by a breach of the contract shall be of a character so uncertain that they cannot be easily calculated, and that the amount claimed as liquidated damages shall not be grossly disproportionate to injury.
    4. Same—Penalty.

      Held, that it being impossible to say, but that the sum stated in the agreement was grossly disproportionate to any damages the defendant sustained, it must be treated as a penalty.
    Appeal from judgment in favor of defendant entered on dismissal of complaint.

      David Leventritt, for app’lt; Moses Shire, for resp’t.
   Van Brunt, P J.

In May, 1885, one Charles Bouton sold and delivered to the defendant merchandise of the value of either $1,076.05 or $1,071, as admitted by the defendant. Goods to the amount of $93.25 were returned and $800 paid on account of the bill, leaving a balance due of about $180.

In November, 1885, Charles Bouton made an assignment to the plaintiff, who brought suit to recover said balance alleging the above facts. The defendants for a counterclaim alleged that during the month of March, 1885, Bouton accepted an order to ship the defendants $3,000 worth of goods; that he did ship a part of the goods, being those mentioned in the complaint, and the defendant claimed that he should ship the remaining part of the goods, and that thereupon Bouton agreed that said defendant should execute his promissory note for the sum of $800, and that then Bouton would ship the balance óf the order, and if he did not so fulfill the order, in that case Bouton would pay the defendant the-sum of $1,000; that defendant did execute and deliver the promissory note of $800, which constituted the payment above referred to, but that Bouton refuses to deliver the order to the damage of the defendant of the sum of $1,000.

The defendant offered as proof of this agreement the following writing signed by Bouton":

“I hereby agree to ship to Mr. M. Block, Buffalo, the entire order that is placed with me month of March or thereabouts. Should I not fulfill above mentioned, so I will pay to Mr. Block a damage of one thousand dollars.
“C. BOUTON.”

No evidence whatever of the amount of damage sustained "by the failure to deliver the order was given, and the learned justice trying the case dismissed the complaint upon the ground that the defendants had shown themselves entitled to an offset against the assignee to at least the amount of the claim for which he brings suit.' Exception was duly taken to this ruling.

It would appear that the proper course would have been, if the counter-claim had been established, to have directed a verdict in favor of the defendant and not to have dismissed the complaint.

But there does not appear to have been any evidence whatever to sustain the counterclaim. It is true that the paper claiming to be the contract was introduced in evidence, but no proof of damage was offered.

It becomes necessary then to determine whether the sum mentioned in the contract is to be considered as liquidated damages.

The construction of a contract in this respect is generally held to be governed by the intention of the parties subject to one or two elementary rules, viz.: That the damages caused by a breach of the contract shall be of a character so uncertain that they cannot easily be calculated, and that the amount claimed to be liquidated damages shall not be grossly disproportionate to the injury

In the case at bar there is no evidence of an intention upon the part of the contracting parties to make the sum mentioned therein in case of default liquidated damages; and besides, there is nothing in the contract itself, nor in the circumstances of the case, so far as illustrated by the proof, which would tend to show what damages, if any, the defendant in this action has sustained in the alleged breach thereof by the plaintiff’s assignor. There is no evidence, neither can it be deduced from the agreement itself that the refusal to comply therewith caused any loss or damage whatever to the defendant.

Therefore, it is impossible to say but that the sum stated in the agreement was grossly disproportionate to any damage which the defendant sustained; and if such is the case, the court say in Cotheal v. Talmage (9 N. Y., 551), the sum stated in the agreement must be treated as a penalty.

In fact the evidence shows that the sum agreed to be paid must be grossly disproportionate to the damage sustained by reason of the breach of the contract, as it is impossible to conceive that the defendant could possibly be damaged $1,000, because of non-delivery of $2,000 worth of goods.

The damages provided for in the contract in question therefore present none of the elements of liquidated damages and could not be treated as such.

It was error therefore to hold that a counterclaim had been established, at least equal to the claim of the plaintiff admitted upon the part of the defendant.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide event.

Brady and Daniels, JJ., concur.


author: Daniels, J. Brady, J.

text:
    The People of the State of New York, Resp’ts, v. Frank A. Civille, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Grand larceny—Definition of the crime—Penal Code, § 528.
    By Penal Code, section 528, any person who with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person, having in his possession, custody or control as bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt, or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any person other than the true owner, or person entitled to the benefit thereof, steals such property and is guiliy of larceny. By the evidence of the complaining witness, it appeared that the course of business between herself and the defendant was that he should pay over in the early part of the month the rents received by him during the preceding-month, after deducting his commissions and the expenses of repairs and management. The specific money received by him from the tenants was. not paid over to her, but a check giving the final monthly balance of the account between the defendant and herself: Meld, that as the defendant-did not appear to have expended the money received by him for his commissions, for the benefit of the owner of the property or in a manner authorized by her, and as the money still remained in his possession, custody and control after the deposit and credit of the check to his account, the-same as the check itself was previous to that being done, he was properly convicted of larceny. The deposit and credit of the check to himself in his account did not convert the fund into .the property of the defendant, but it was still money or property in the custody or control of the defendant. Brady, J., dissenting, considered the evidence insufficient to support a conviction.
    3. Same—Necessary constituents of the crime.

      Held, by Daniels and Van Brunt, JJ., that it was not necessary for the inculpation of the defendant that he should have intended to appropriate the money received to his own use, or to the use of any other person, at the time when it was received by him, for the intent so to use it at any time while it remained in his custody, possession or control as a bailee, servant, attorney, clerk or trustee, followed by that use of it, created a crime within the section of the statute quoted.
    3. Same—Intent necessary to constitute.

      Held, by Brady, J., dissenting, that the mere_ appropriation or use, of the money might be an innocent exercise of dominion, if the intention existed to pay or restore it. That the animus furandi was necessary to create the crime.
    4. Same—Failure to pay caused by insolvency is excusable.

      Held, by Brady, J., that the defendant was entitled that the jury be-charged that if they believe the defendant received the money intending to account for it as usual, and subsequently failed to pay it over because of hopeless insolvency, there would be no criminal intent.
    5. Same—Inability to pay is excusable.

      Held, by Brady, J., that the defe-dant was entitled that the jury be charged that if the defendant collected the rents for his clients ana deposited them with other funds in his bank, intending in good faith to account for them at the end of each month, and failed to do so through inability, he was not guilty of larceny.
    6. Evidence—Of good character—Error in charge.

      Held, by Brady, J., that in charging the jury as to the weight to be given to evidence showing the previous good character, it was error for the judge to tell the jury that men of highest character have been known to commit the very worst offenses.
    Appeal from a judgment of the court of general sessions of the county of New York convicting the defendant of the crime of larceny in the second degree.

      W. C. Beecher, for app’lt; McKenzie Semple, for resp’t.
   Daniels, J.

The defendant was charged in the indictment with having feloniously appropriated the sum of seventy-five dollars, in his possession, custody and control, as the agent, clerk or servant of the prosecuting witness. It was made to appear by the evidence that he had been employed by her in collecting the rent of fourteen different houses, situated in the city of New York, for which he was to receive a commission on the corner house of two and a half per cent, for the flats three per cent, and for the other dwellings five per cent on the amount of rent collected. For the rent of the house known as 2042 Madison avenue he received the sum of seventy-five dollars on the 11th of August, 1885, which he failed to account for or pay over to the complaining witness, who was the owner of the property. It was charged that he had feloniously appropriated that sum of money, and the verdict of the jury sustains the truth of the charge. Various objections and exceptions were taken during the progress of the trial, which were disallowed by the court, and it has been urged on behalf of the defendant that many of the rulings made in this man: ner were erroneous as well as prejudicial to the defendant.

It appeared by the evidence of the complaining witness that the course of business between herself and the defendant was that he should pay over in the early part of the month the rents received by him during the preceding month, after deducting his commissions and the expenses of repairs and management. The specific money received by him from the tenants was not paid over to her, but a check giving the final monthly balance of the account between the defendant and herself. ' This was always the way in which the business had been arranged and the rents paid over to-the complaining witness. Upon this circumstance it was contended on behalf of the defendant that he could not be convicted of the offense charged in the indictment for the misappropriation of this particular sum of seventy-five dollars.

But as he did not appear to have expended this sum of money either for repairs, or in the management of the property, or for his commissions, or in any other manner for the benefit of the owner of the property, this position cannot be deemed.to have been well taken, for the money still remained in his possession, custody and control, after the deposit and credit of the check in his account, the same as the check itself was previous to that being done. The deposit and credit of the check to himself in his account did not convert the fund into the property of the defendant but it was still money or property in the custody or control of the defendant, for the complaining witness as its owner and within the provisions of section 528 of the Penal Code under which the defendant was convicted. The cases quite prominently relied upon by the counsel for the defendant, of Vilmer v. Schall (61 N. Y., 564;) Segelken v. Meyer (94 id., 473), and Donovan v. Cornell (24 Wk. Dig., 351), did not present this section of the Penal Code for construction, hut were disposed of chiefly as matters of pleading, and are not applicable therefore to this case. The latter decision was made on the authority of Morris v. Talcott (96 N. Y., 100) which depended upon entirely different considerations and principles. That was likewise the case of People v. Cruger (102 N. Y., 510), where although the charge was larceny, it in no manner depended upon the provisions of this section of the Code which are applicable to the charge made against the defendant.

Before the time when the check was deposited the defendant had changed his deposit account to himself as trustee. This was done in the fall of 1884, and continued to the time when this check was deposited in a deposit account in favor of F. A. Civille, as trustee. This was not only an acknowledgement, but a preservation, of the fact that the check received by him came into his possession as the other proof established the fact to be, as the agent of the complaining witness, and that it was made to preserve that character in the bank account of which it constituted a part. And that maintained the defendant’s relation to this sum of money to be that of the agent, trustee, or bailee of the owner of the property. Baker v. National Ex. Bk., 16 Abb., N. C., 458.

He still continued the custodian of the money in a fiduciary capacity for the benefit of the owner of the property. And he was not relieved from responsibility on account of it, for the reason that it might have been appropriated to the payment of his commissions, or to defray the expenses of repairing and managing the property, as long as there was no evidence in the case establishing the fact that it had been so used.

Neither was it necessary for the inculpation of the defendant that he should have intended to appropriate this money to his own use, or to the use of any other person, at the time when it was received by him, for the intent so to use it at any time while it remained in his custody, possession or control as a bailee, servant, attorney, agent, clerk or trustee followed by that use of it, created a crime within this section of the statute.

It was enacted in much broader language than was the provision contained in the Revised Statutes defining the crime of embezzlement. For under that statute as first amended, it was only the clerk or servant of a private person, or of a co-partnership, or an officer, agent, clerk or servant of a municipal or other corporation, or joint stock company or association, or a director, trustee or manager, who was declared to be guilty of embezzlement for converting to his own use, without the consent of his master, or employer, the funds or property received by him in one of these capacities. 3 R. S. (6th ed.), 952, § 73. And this section was construed by the courts quite strictly in its administration and enforcement. And that circumstance, together with the frequent defalcations of persons employed as agents, trustees and officers of public and private corporations, induce the enactment of additional legislation to meet and punish this increasing class of cases. Accordingly, by chapter 207 of the laws of 1874, the first enactment contained in the Revised Statutes was enlarged in the manner already stated. And by chapter 688 of the laws of 1873 any person appointed and acting as the agent of an insurance company was brought within the same restraints. And by chapter 208 of the laws of 1877 the criminal liability was further extended to include an executor, administrator, trustee or guardian appointed by any will, deed or other written instrument, or by the judgment or order -of any court or judicial officer in this state. And it was evidently the purpose of the Penal Code to include the substance and effect of these various enactments in the section under which the defendant was indicted and convicted. For that has declared that any person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, having in his possession, custody or control as bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as_ a public officer, or as a person authorized by agreement, or 'by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt, or contract, article of value of any nature, or thing, in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property and is guilty of larceny. This portion of the section has been very broadly enacted and clearly included the defendant, for he was the agent and bailee or trustee of the complaining witness receiving and having in his possession this check, as well as the proceeds thereof, for her benefit. And by their misappropriation, as the jury found that fact under the evidence, he was guilty of "the crime mentioned in the statute.

The cases relied upon in support of the objections taken at the trial will not sustain the defendant’s appeal.

In that of Com. v. Libbey (11 Metc, 64), the court held no-more than that the statute of that state did not include an auctioneer, or commission merchant, as an agent or servant for in the course of his business he had the right to mingle the proceeds received with his own and pay over any like amount in discharge of his liability. The same construction was given to the act in Com. v. Sterns (2 Metc, 343), and it was further held that a person collecting bills for the proprietor of a newspaper was not such an agent or servant as the statute designed should be punished for embezzlement for failing to pay over the moneys collected by him. But the facts of this latter case would probably be sufficient to-bring it within so much of this section of the Penal Code, as has been mentioned, if the accountability had arisen out of like transactions in this state, for the person charged did in fact collect the bills as the agent of the proprietor of the newspaper. While in Com. v. Foster (107 Mass., 221), the defendant was relieved solely on the ground he was not an agent. The English authorities are not entirely harmonious in their construction of their acts relating to the crime of embezzlement. In Regina v. Goodbody (8 Car & Payne, 665), the defendant was absolved for the reason that he was not a clerk or servant, but an agent, which, to that extent renders the case an authority against the defendant. In Rex v. Carr (1 British Crown Cases, 198), the defendant was employed in selling and taking orders for goods for different employers and receiving moneys, and it was held that he was properly convicted for their misappropriation as a clerk or servant of the employer, whose money was so used. The case of Queen v. May (5 Q. B. Div., 382), seems, however, to be adverse to this ruling. But that of Queen v. Tite (id., 142), followed and further enforced it. And so has the cases of Reg. v. Turner (11 Cox C. C., 551), Reg. v. Bailey (12 Cox C. C., 56). And these cases certainly are authorities justifying such a construction and application of this section of the Penal Code as will include that of the defendant. In State v. Kent (22 Miner, 41), the defendant was a collector of pew rents, and it was held, as he was entitled to commissions from the amounts collected, he was not guilty under the statute for misappropriating the entire money received, as part of it was his own property. But there seems to be no good reason for this discrimination, for as to the residue of the money received over the commissions the person receiving it has it in his possession, custody or control, as the agent, bailee or trustee of his employer. And that has been so considered in the English cases which have not relieved the accused because of the circumstance that he was entitled to retain his commissions out of the moneys collected by him. But this decision is not applicable to this case for the further reason, that it did not appear by the evidence that the defendant had used any portion of the money represented by or derived from the check for the payment of the commissions he was entitled to retain. It appeared on the contrary by his own testimony that he had probably used the money in the bank for the payment of the debts owing by him to other creditors.

Some stress was made in his favor on the fact that he had become involved by the failure of Mr. Dean, his brother-in-law. But that, in that in truth, had no relevancy to the case. For it appeared by the testimony of the defendant that no money of the complaining witness went to Dean during the year 1885, and his transactions with her all took place after the failure of Dean, and no part of her money was loaned by the defendant to him. An effort was also made to excuse the defendant under his power to apply moneys received by him for the repair and management of the property. And it did appear that $456.56 from his testimony of the moneys received for rents in the month of August had been used in this manner, but it was not shown by any statement or account produced that this particular, check, or any part of it, went in that direction.

The defendant also, at the request of the. owner of the property, looked after the buildings as he daily passed them to see that the work was properly performed in their construction and finish, and for that it was insisted that he was entitled to a compensation against the prosecuting witness. Her testimony was to the effect that he bestowed this service at his own instance gratuitiously, anticipating that the buildings would be in his charge as agent after they were completed. No account or claim for any compensation for this service was ever made .out or presented by him to her. Neither was it made to appear that he had retained this money for either of these objects. On the contrary, his testimony in general terms was that “there was no part of this money which I did not devote to my creditors, and my balance stands now about three dollars.” At the same time, in the submission of the case to the jury, they were directed to take these different subjects into consideration; that the defendant was entitled to use the complainant’s money ip. the course of his agency for the making of necessary repairs, and the claim advanced that he was entitled to compensation for such services. And the jury were directed, finally, that if he had used the money “by the authority and consent of this complainant, why, then, of course, he has committed no crime.” And they were directed only to convict him in the event that they should become satisfied from the evidence he had feloniously appropriated this sum of money to his own use. It was further added that “ if by some misfortune over which he had no control, and not being actuated by any unlawful intent, the money of the complainant which he as her agent received was lost, and the defendant was thereby unable to pay it to the complainant when he was called upon to do so, he is guilty of no criminal offense.” These directions were as favorable to the defendant as he had a right to expect them to be under the circumstances. The court was requested also to give certain directions to the jury as to the effect of the evidence of good character, but as that had already been done, a repetition of the observations was not deemed to be, as it certainly was not necessary. The case is an unfortunate one for the defendant who, however, had no right whatever to misappropriate the money received and held by him in the course of his employment. Defalcations of this and other descriptions have become appallingly numerous, both in their frequency and amounts. They exhibit startling infirmities of human character that can only be checked or avoided by the unswerving application and execution of the law. And where no substantial error appears to have intervened in the course of the trial, the court, as a matter of sympathy for an unfortunate defendant, cannot intervene for his relief.

There were some exceptions taken to the exclusion of evidence upon the trial, but as the testimony excluded was of no material importance and could have been of no substantial benefit to the defendant, the rulings made on this subject do not require to be specially considered. The question which the witness McClain was not permitted to answer as to whether he had advised the defendant to visit Mr. Dean in Canada, evidently by way of explanation of the fact that he had gone there, was afterwards answered by this witness, who stated that he did advise him to go to Canada to see his brother-in-law at that time. If the ruling in the first instance was not correct, this answer had the effect of removing the objection and exception from the case.

The judgment from which the appeal has been taken should be affirmed.

Van Brunt, C. J., concurs.

Brady, J.

The appropriation of money held by an agent or trustee to his own use, is not a larceny under the provision of section 528 of the Penal Code, unless it be done with the intent to deprive or defraud the owner of his property, or the use or benefit thereof. The mere appropriation or use of the money may be an innocent exercise of dominion if the intention exist to pay or restore it. It is-the animus furandi which creates the crime—the intention to make an absolute appropriation as contradistinguished from a temporary use without any design to defraud the owner or to deprive him of his property.

The intent—the quo animo is the ruling element of crime, and the section mentioned recognizes it in the language employed : “A person who with intent to deprive, etc.” If the legislature meant that the mere use of money not his own by an agent, although not with evil intent, constituted larceny, they would not have used the language employed and referred to.

The defendant was therefore entitled to the following charges:

That if the jury believe that the defendant received the seventy-five dollars, intending to account for it as usual and subsequently failed to pay it over, because of hopeless insolvency, there would be no criminal intent.

That if the defendant collected the rents for his clients and deposited them with other funds in his bank, intending in good faith to account for the same at the end of each month and fails to do so through inability, he is not guilty of larceny.

He was also entitled to the following:

That in a case of this nature evidence of good character becomes a very important element, and in close cases may very properly create that reasonable doubt which would entitle the defendant to an acquittal.

The learned recorder said in answer to this as to others, that he would not charge other than as charged.

His observations about the evidence of good character were as follows:

The defendant has introduced evidence tending to show that he has heretofore borne a good character, five or six witnesses have testified to that effect. Evidence of good character is to be considered by you with all other evidence in the case, and you are to give it just such weight as you think it justly and properly entitled to and no more. In a doubtful case, in my judgment, evidence of good character is entitled to very great weight, and in a case where the reasonable doubt, to which I will call your attention shortly, would not otherwise exist, where evidence of good character is introduced, it will sometimes create in the minds of a jury that reasonable doubt, to the benefit of which a person charged with the commission of crime is entitled to. But in weighing evidence of good character and considering it, the jury should also take into consideration the fact -that men of highest character have been known to commit the very worst, criminal offenses.

This was not a correct expression either of the law or the facts of tho case.

What evidence was there that men of the highest character had been known to commit the very worst criminal offenses? and why, therefore, should the jury weave that into their deliberations? What authority exists for any such ruling?

If the word “reputation” had been used it would have been more felicitous, although equally eri’oneous as the statement of a legal zule. The defendant was entitled to •an absolute charge of the value of good character wholly separate and apart from any other man’s reputation or evil deeds. The effect of the charge was to deprive the defendant of all benefit, inasmuch as it intimated, however unintentional, if it did. not declare, that men of good character might nevertheless commit the worst of crimes, and the defendant was one of the men. In this case the question of character was important, azzd the defendant should not have been deprived of the full extent of the rule which was even broader than claimed by the defendant’s counsel.

I think that injustice has been done in this case and that the judgment should be reversed and a new trial ordered.


text:
    John Silsby, Resp’t, v. Elisha A. Packer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

      1. Evidence—Motion to strike out hearsay—Error to refuse.
    Where a witness testified to certain facts, and it was subsequently brought out on cross-examination that he had no personal knowledge of the subject on which he gave his evidence, Meld, that a motion to strike out such evidence as hearsay was improperly refused.

      S Same—When such error must be disregarded.

      Held that the error thus committed must be disregarded, the evidence working no prejudice to the party against whom it was brought out, as the tacts were fully established by other and competent evidence.
    Appeal from judgment entered on the report of a referee.

      F B. Coudert, for app’lt; Henry C. Willcox, for resp’t.
   Bartlett, J.

So far as the facts of this case are concerned, we are content to affirm the judgment upon the opinion of the referee.

As to his rulings upon the trial, there are only two points which seem to us to require consideration.

The action was brought to recover money alleged to have been paid under duress. The defendant contended that the money was paid voluntarily, in satisfaction of a debt due and owing from the plaintiff’s father. On this issue there was a conflict of evidence. The plaintiff had testified that the defendant had been a bondsman for the plaintiff’s father as a trustee of a certain estate, and, also, that a suit had been brought against his father in the year 1880. He was then asked, on cross- examination by the defendant’s coun sel, the following question:

Q. “ Do you know whether the claim against your father in that suit was for misappropriation of the moneys of that estate ?” An objection to this question was sustained and an exception was taken by the defendant, who now argues that the exclusion of the testimony sought to be elicited by this question was erroneous, inasmuch as it was material to show just what position the plaintiff’s father occupied toward the defendant, as bearing upon the probability that the plaintiff would be willing to pay his father’s debt.

As to this point, it is sufficient to say that the defendant can have suffered no harm by the ruling; for, in a previous part of his cross-examination, the witness, when first asked about the suit in question against his father, had said: “There was a suit brought against him that year, the nature of which I do not know.”

The alleged duress, which was the gravamen of the action, consisted in the refusal of the defendant to turn over to the plaintiff certain shares of the stock of the Manganese Iron Ore Company, unless the plaintiff paid more than he admitted to be due thereon, Some of the testimony taken on the trial related to the ownership of this stock; and one Arthur F. Allen, a witness called in behalf of the plaintiff, testified on his direct examination that he knew, of his own knowledge, that the plaintiff bought Manganese iron ore stock of his father. Subsequently, on cross-examination, the witness admitted that he was not present at the sale, and made other statements showing that he had no-personal knowledge on the subject. The defendant then moved to strike out the testimony of this witness as to his knowledge of the sale. The referee denied the motion and the defendant excepted. We think the ruling of the referee was. erroneous. The testimony was clearly hearsay, and should have been stricken out. The error, however, worked no harm to the defendant, for the fact of the sale of the stock to the plaintiff by his father, was abundantly established by other evidence.

The judgment appealed from should be affirmed, with costs.

Van Brunt, Oh. J., and Lawrence, J., concur.


text:
    Max Mayer, Resp’t, v. James McCreery, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May, 13, 1887.)

    1 Contract—When void for uncertainty
    The parties to this action in negotiating for a lease corresponded in effect as follows The plaintiff by letter to the defendant said that he would take premises belonging to him and therein described, at a yearly rent stated, plans,' etc., to be mutually agreed upon. This offer was accepted by letter by the defendant. This action was brought to enforce the performance of the agreement and the question arose whether the letter oon stituted a valid lease. Held, that it was a fundamental principle that in order to constitute a contract the minds of the parties must meet and agree-upon the terms of it, and that if any part remained to be settled the agreement was incomplete.
    2. Same—When specific performance cannot be decreed.

      Held, that stipulations contained in the correspondence were a material part of the agreement, and that the plaintiff not having waived his right, to the performance of such pait of the contract and that part being un certain, specific performance of the contract to lease could not be decreed.
    Appeal from judment rendered at general term.

      B. F. Dunning, for app’lt- F. R. Coudert, for resp’t
   Brady, J.

The parties to this action were in negotiations for a lease of the premises, 483 Fifth avenue, which was distinguished by a correspondence as follows:

“New York, January 29, 1885.
‘'Mr. James McOreery:
“Dear Sir:—I will take your building 483 Fifth avenue, on a twenty-one years’ lease from May 1, 1885, to be altered, by you similar to the one Hume & Co. is now altering, and floors, etc., arranged as spoken about, etc., at the yearly rent of $5,250 for each year of the term net rent, no taxes, assessments, etc. Plans, etc., to be mutually agreed upon..
“Yours very respectfully, “MAX MAYBE.
“Building must be ready on May 1, 1885.”
“New York, January 29, 1885.
“ Mr. Max Mayer:
“ Dear Sir:-—Yours of this date making me an offer on building No, 483 Fifth avenue, for a twenty-one years’ lease, has been received. I hereby accept your offer.
“ Very truly yours,
JAMES McCREERY.”

And the question arising upon this is whether the letters constitute a valid lease of the property named. This action was brought to enforce the performance of the agreement and resulted in a judgment in favor or the plaintiff and a reference to ascertain the damages. The premises had been used as a residence, but, as indicated by the correspondence were to be so altered as to fit them for business purposes and it was expressly stated that the plans were to be mutually agreed upon. They never were agreed upon, the defendant having before the consummation of that part of the agreement, declined to give the lease. It is well established that in order to constitute a contract the minds of the parties must meet and agree upon the terms by which it is to be characterized. If any part remains to be settled the agreement is incomplete. This is a fundamental principle, and is quite familiar. Brown v. N. Y. C. R. R., 44 N. Y., 79. In this case the parties intended that a lease should be entered into, it would appear from the correspondence when they had agreed upon certain matters, and what was to be done would seem to be of importance if not to the defendant at least to the plaintiff, for whose benefit or advantage the alterations were to be made.

It is said in Ridgway v. Wharton, 6 H. L., case 238 (303). “ An. agreement to be finally settled must comprise all the terms which the parties intended to introduce into the agreement. It is absurd to say that a man enters into an agreement till the terms of that agreement are settled. ”

It is in answer to these suggestions that the stipulation as to the alterations forms no part of the lease. But in this the respondent is regarded as mistaken. Suppose for example that when the parties met for the purpose of specifying the alterations in detail, and the respondent desired something which it was insisted was not embraced within the terms of the agreement so far as it was developed by the correspondence, and the defendant refused to submit; a circumstance which might occur, or vice versa; that would lead to difficulties or dissensions which an appeal to the contract itself as manifested by the letters would not decide.

It is also contended that “ Where the agreement is to build a house according to a plan, and to take a lease of it, the plaintiff may waive specific performance of that part of the agreement relating to the building of the house, and may have damages for that part and specific performance of the rest of the agreement.”

And this proposition is founded upon a statement of the law by Addison on Contracts, vol. 2, p. 124, and Pomeroy on Specific Performance, § 151. But there is nothing in the case from which such an incident can be inferred, as that the respondant waived the right to have the alterations made in accordence with the correspondence, and was willing to take the lease without them. The rale as thus stated would seem to indicate the necessity of such a waiver, and as the renting of the premises was agreed upon with reference to the alterations, it is not at all probable that such a lease as that would have been accepted.

If the plaintiff were willing to do so, it seems but just that he should have given notice of that fact, to the appellant whose objection was predicated of obstacles which would prevent the making of the alterations as proposed.

No adjudicated case illustrative of the plaintiff’s right to recover upon elaborate examination has been discovered, and none has been cited directly in point, although the learned counsel for the plaintiff has displayed great ingenuity in the combination of propositions which might, perhaps, by exquisite refinement lead to the conclusion for which he contends.

The case Shaw v. The Republic Life Insurance Co. (69 N. 292), which is cited to sustain the doctrine that where there was a mutual agreement upon alterations, the necessity of the performance of them or other conditions, was waived by the defendant upon his refusal to perform, does not apply to this case, as an examination of it will show. The principle declared, though applicable to the controversy then before the court, finds no resting place, here for the reason that the facts and circumstances and the contract between the parties hereto are entirely different from that which was presented for consideration in that case.

For these reasons, it is thought that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant, to abide event.

Van Brunt, J., concurs.