author: Putnam, J. Hebricic, J.

text:
    The People, App’lts, v. James E. Ostrander, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed June 1, 1892.)

    1. Perjury—Savings banks—Report.
    The verifica ion of the principal officers of a savings bank to the report required by chap. 409, Laws 1882, covers the entire report, and is not extrajudicial as to the statement of the assets and liabilities. Although the statute provides that the report shall be based on the examination by the trustees, yet if the officers knowing said report to be false, wilfully make a false affidavit verifying it, this is perjury under the Penal Code.
    3. Same—Officers.
    The treasurer of a savings bank is one of its principal officers within the meaning of the statute, and a proper party to make the affidavit.

      3. Same—Indictment.
    A statement in the indictment that the liabilities were a much larger sum than the amount mentioned in the report is sufficient. It is not necessary to state the amqunt of the liabilities in excess of the amount reported.
    Appeal from judgment entered upon decision sustaining demurrer to an indictment for perjury.

      J. N. Vanderlyn and A. Schoonmalcer, for app’lts; William Lounsberry and D. M. DeWitl, for resp’t
   Putnam, J.

The defendant was indicted for perjury claimed to have been committed in making a false verification to the semiannual report of the Ulster County Savings Institution, rendered to the Superintendent of the Banking Department of the state of Hew York on July 29, 1890. A demurrer interposed by defendant, on the grounds that the indictment did not conform to the requirements of §§ 275, 276 of the Code of Criminal Procedure, and also that the facts stated do not constitute a crime, was sustained at the oyer and terminer and judgment ordered for the defendant,, from which this appeal is taken.

By § 270, chapter 409 of the Laws of 1882, savings banks, such as the Ulster County Savings Institution, are required on or before the first days of February and August in each year to make a report in writing to the superintendent of the banking department of its condition on the mornings of the first days of January and July preceding. Sections 271 and 272 prescribe the contents of such report. That it shall contain, among other things, a statement of assets and how invested, and also a statement of the liabilities of the corporation, amount due depositors and other facts. Section 273 provides for the verification of said report as follows:

“Such report shall be verified by the oath of the two principal officers of the institution, and the statement of assets shall be verified by the oath of a majority of the trustees who examined the same pursuant to the requirements of § 279 of this act.”

The defendant was the treasurer of said corporation and made the affidavit required by § 273 on July 29, 1890, to the report then made by said bank in pursuance of the provisions of §§ 270, 271, 273. This affidavit is the one mentioned in said indictment. It is clear that the defendant at the time was one of the principal officers of the bank within the meaning of the statute and a proper-party to make said affidavit.

The act of 1882, § 279, also provides that the trustees of every savings institution shall, on or before the first day of January and July in each year, thoroughly examine the books, vouchers and assets of such savings institution and its affairs generally, and that the statement or schedule of assets and liabilities reported to the superintendent of the banking department for the first day of January and July in each year shall be based upon such examination and shall be verified by the oath of a majority of the trustees making it.

At the oyer and terminer it was held by the court that under the provisions of §§ 273 and 279, the principal officers of the bank were not called upon or authorized in the making of the report to the superintendent of the banking department to verify such re-* port as to the assets or liabilities of the bank. That the report of said officers as made to the superintendent of the banking department was based upon the report made by the committee of the trustees, and hence, that perjury cannot be predicated upon an affidavit made by defendant as to the assets and liabilities of the bank which he was not bound under the statute to make. That the oath of the defendant set out in the indictment was extra-judicial, the act only requiring the defendant to- make oath that the statement of liabilities and amount due depositors was correct according to the finding of the committee of the trustees.

It is to be regretted if this is a correct construction of the act of 1882. If so, officers of a savings bank, like defendant, who in fact control its affairs and have the charge and management of its books and vouchers, obtaining a report from a committee of its trustees on such books, vouchers and papers as such officers choose to submit to such committee, can swear to such a report, although knowing it to be a false one, without being guilty of perjury.

1 am unable to agree with such an interpretation of the statute. I think that the very language of § 273 requires the principal officers of the bank to verify the entire report. Sections 270, 271, 272 (supra) provide for the making of the report and what it •shall contain, and then § 273 enacts that the said report shall be verified by the two principal officers of the bank. The statute does not say that a part of the report shall be verified, but provides that Usuch report shall be verified." This, I understand, means all the report.

There is nothing in the provisions of § 279 inconsistent with those of § 273. The latter section, as I construe it, requires the •oath of the officers to the whole report, and §§ 273 and 279. together, require the affidavit of a majority of the committee of the trustees to the statement of the assets and liabilities. It is true that the report made and sworn to by the officers of the bank and its trustees is based upon the examination made in pursuance of § 279. Although based upon such examination, the statute prescribes that it shall be sworn to by the officers, the vjhole of it. The language of § 273 is significant. While providing that the report generally shall» be verified by the oath of two of the principal officers, it specifies what part of the report shall be verified by the oath of the trustees; the statement of assets and liabilities. So, had it been the intention of the law makers that the principal officers should only verify a portion of the report, the statute would doubtless have stated what part said officers should make oath to.

Although the report so made under § 279 (supra) ie based on the examination of the trustees, if the defendant, as alleged in the indictment, knowing said report to be false, willfully and corruptly made a false affidavit verifying it, I think this is perjury under the Penal Code. Should a case arise where the examination of the trustees of the bank did not show the correct amount of assets or liabilities, and the true sum due depositors, to the knowledge of the officers, the latter would not be compelled to verify the report known by them to be false. In such a case a special affidavit could be drawn to meet the difficulty.

On the trial of the case if it should appear that the defendant relied upon the examination of the trustees, and verified the semiannual report in good faith upon their statement, although the report proves to be false in fact, he would be entitled to an acquittal. But if it should be shown that the report submitted by the' bank to the Superintendent of the Banking Department, as alleged in the indictment, was false in fact, and the defendant while knowing it to be so false made an affidavit of its correctness, he could be properly convicted of perjury under the statute. - The evident-intent of the statute is to provide for the verification of the report-by the principal officers of the bank, who knew best as to its condition, and also for a semi-annual examination of the affairs of the-institution by its trustees, evidenced to the Superintendent of the Banking Department by the affidavit of the committee of such trustees attached to the semi-annual report.

I conclude that the oath of the defendant to the semi-annual report of the Ulster County Savings Institution, as alleged in tli& indictment, was not extra-judicial, but was an affidavit required by the plain terms of § 273 of the act of '1882, and that hence, if the allegations in the indictment are true, that the defendant can be held for perjury.

There are other objections made by the defendant to the indictment which the justice holding the oyer anji terminer did not consider, and which I do not think it necessary to discuss at length.

It is claimed by the defendant that the indictment is fatally defective, that it fails to aver that the defendant swore that the affidavit subscribed by him was true, it (the affidavit) only stating that the statements contained in the report were correct. This-position of defendant is a novel one, and I think not well taken. Section 96 of the Penal Code provides: A person who swears- * * * or states in his testimony, deposition, affidavit or certificate any material matter to be true which he knows to be false, is guilty of perjury.” In the indictment, the report to the superintendent of the banking department is alleged to have stated the liabilities of the Ulster County Savings Institution at a certain sum, and that this was sworn to by defendant as correct. Such statement was in fact false, and defendant knowing that the said allegation was false and that the liabilities of said bank and the-amount due depositors was much • larger than that stated in said report, verified, etc. That was an allegation, as stated in the indictment by the defendant in his affidavit of the truth of the facts stated in the report known by him to be false, and seems to come-within the definition of perjury as defined in § 96, supra.

To constitute perjury under said section it is not necessary in an affidavit of verification itself to state the facts sworn to. The-facts sworn to may be stated in the report or pleading to which said affidavit is annexed or attached, such report or pleading- and affidavit of verification forming in fact one paper. It is immaterial whether the facts sworn to are set out in the affidavit. or in the paper annexed, of which the affidavit may be deemed a part.

In my judgment, the statement in the indictment that the liabilities were a much larger sum than the amount mentioned in the report is-sufficient. It is not necessary to state the amount of liabilities in excess of the amount reported. It is not a case where the amount of such excess is material.

I have read the indictment with some care, and it seems to me to be carefully drawn, and to comply with the requirements of the Code of Criminal Procedure. See §§ 275, 284, 285, 281; People v. Clements, 11 St. Rep., 384, 385; People v. Higbie, 66 Barb., 138; People v. Dimick, 107 N. Y., 29, 30; 11 St. Rep., 739.

The judgment allowing the demurrer should be reversed, and. the demurrer disallowed, with liberty to defendant to plead to the indictment.

The same disposition should be made of the other case of the People v. James E. Ostrander, and that of the People v. Matthew T. Trumpbour.

Hebricic, J.

This is an appeal from a judgment of the court below sustaining a demurrer to the indictment herein.

Sections 275, 276, 284 and 285 provide the tests for determining the sufficiency of an indictment.

“ It must contain a plain and concise statement of the act constituting the crime without unnecessary repetition, and it is sufficient if the act charged as the crime is plainly set forth with such a degree of- certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, and no indictment is insufficient bjf reason of any imperfection in matter of form which docs not tend to the prejudice of the substantial rights of the defendant upon the merits.” People v. Dimick, 107 N. Y., 13-29; 11 St. Rep., 739;. People v. Weldon, 111 N. Y., 575; 20 St. Rep., 112.

It should also set forth the act or acts charged to constitute the crime with sufficient definiteness and precision, that the defendant may avail himself of it as a pica in bar, if he is charged with the same offense, or any offense constituted by the same act, a second time.

Tested by these requirements, it seems to me that the indictment is good in form, and that the acts constituting the alleged crime are well pleaded.

Do the facts alleged constitute the crime of perjury? It is alleged that at the time of the acts charged in the indictment the “ Ulster County Savings Institution ” was an incorporated savings bank and institution for savings duly incorporated and existing under the laws of the state of Hew York, and that the defendant was one of its two principal officers.

The law governing savings banks is contained in chapter 409 of the Laws of 1882.

Section 270 of that act directs such corporations to make semiannual reports on or before February 1st and August 1st of its condition on the mornings of the first days of January and July preceding.

Sections 271 and 272 prescribe the contents of such report.

Section 272 reads in part as follows : “ Such report shall also

state all the liabilities of such savings corporation on the morning of the said first day of January; the amount due to depositors, ■which shall include any dividend to be credited to them for the six months ending on that day, and any other debts or claims against such corporation which are or may be a charge upon its assets.”

It is provided by § 273 that “such report shall be verified by the oath of the two principal officers of the institution and the statement of assets shall be verified by the oath of a majority of the trustees who examined the same pursuant to the requirements of § 279 of this act,” and it further provides that any wilful false swearing in regard to such reports shall be perjury. Section 279 reads as follows : “ It shall be the duty of the trustees of every savings bank by a committee of not less than three of such trustees, on or before the first day of January and July in each year, to thoroughly examine the books, vouchers and assets of such savings bank and its officers generally ; and the statement or schedule of assets and liabilities reported to the superintendent of the banking department for the first of January and July in each yeai shall be based upon such examination, and shall be verified by the oath of a majority of the trustees making such examination."

The provisions of this last section, when read in connection with the other first referred to, are what have given rise to the contention now before the court

It is claimed that inasmuch as § 279 says that the report of the statement or schedule provided for by § 270 shall be based, upon the examination directed to be made by the trustees, that the verification to the report is simply a statement that it is a correct report of the examination made by the trustees, and that any other affidavit is extra-judicial, and that a charge of perjury cannot be predicated upon it; and, again, it is contended that the affidavit shall be that the report filed was correct as based upon the examination of the trustees, and that any other affidavit would be extrajudicial. In other words, that the verification of the principal officers is to a report, not as to what is the true condition of the corporation, but that the report correctly sets forth the examination of the trustees.

To me it seems that reading the statute, bearing in mind its intention, will solve all difficulty; the court will not be curious to find or force a construction that opens the way to dishonesty or a loose way of transacting business; the law must be so construed, if possible, as to enforce its intent, and that intent must not be defeated by refinements or subtleties in construction. The legislature evidently intended that at least twice a year the banking-department should be informed of the exact condition of the savings institutions of the state. For that purpose it required an examination by the trustees.

Next it required a report to be verified by the principal officers -of the bank, and as to the statement of its asssets and liabilities also by the affidavits of a majority of the trustees making the examination. The statute is particular in stating what the report shall contain; it shall state all the liabilities of the bank; it shall state the amount due depositors.

And the report containing these things shall be verified by the oath of the two principal officers. They are to swear to the truth ■of that report, not to the truth of the report made by the trustees, nor is the report to state that it contains what the trustees found ■on their examination, but the report is to set forth what in truth and fact the real condition of the bank is, not what somebody else says it is; not what it is as appears from the examination made by the trustees; the Bank Department is to be informed of its true condition as known by its principal officers. The report provided for by §§ 270, 271 and 272 is different from the examination provided for by § 279. One is a check upou the other.

It is true that § 279 says that the statement or schedule of assets reported, as provided for in § 270, shall be based upon the examination required by § 279, but that certainly does not mean that the principal officers are simply to report what the trustees found upon their examination, and that the banking department is not to have the benefit of the knowledge of the officers who in fact conduct the every day business of the bank, but only the knowledge acquired by a committee of trustees who have examined the records of the business kept by those officers.

Such a construction would lead to this, that the principal officer could make his report, saying in it, or in the affidavit by which lie verified it, that it was correct as based upon the examination of the trustees, and he could not be indicted for perjury, although he knew that such examination did not disclose the true condition of the bank, and knew that it was in fact false.

Having the books of the bank under his control, in most instances keeping them, he could falsify them so that upon an examination by the trustees they would not discover the true condition of the bank, and he could truthfully swear that the report was based upon the examination of the trustees. When the statute says the statement or schedule of assets and liabilities shall be based upon such examination, it means that the report is to be something separate, and reported apart from the statement of the result of the examination by the trustees; the result or statement of such examination is like the search furnished by the searcher to the painstaking conveyancer; it simply furnishes him the basis ■of his own examination; he takes it and goes to the records and verifies it himself from those records before he certifies it as •correct under his own hand.

This examination is also a basis for the report in another aspect; in addition to the report being verified by the two principal officers, its statement of assets and liabilities is also to be sworn to by the majority of the trustees making the examination required by § 279 ; of course their examination gives them the knowledge, is the basis of their information as to whether such statements are correct or not.

■The contention of the defendant’s counsel in substance amounts* to this, that the examination by the trustees and their statement, thereof is as to the two principal officers res adjudícala as to the creditors of the bank; that their report must state that it is based, upon such examination and any other report is not called for by the statute, is extra judicial, and perjury cannot be predicated upon it; that if theL report is correctly based upon the examination and verified schedules made by the trustees then they commit no. perjury, although such verified schedules are in fact false, and do not represent, but misrepresent the true condition of the bank.

That if they make a report stating the schedule different from the one prepared and verified by the trustees, and verify it by their oaths, that then they would be guilty of perjury, although', their report gave the true condition of the bank, and the schedule-verified by the trustees did not.

It seems to me that the mere statement of the construction contended for is a sufficient answer to it.

A construction which will permit the officers of a bank to file- " and swear to a report which they know to be false and escape all-liability therefor, simply because it is based upon an examination and report made by other officers, cannot possibly be what the-legislature intended.

The statute says that the corporation shall make a report im writing, at a specified time, to the superintendent of the banking-department of its condition.

The indictment says such a report was made. The statute says: such report shall state all the liabilities of the corporation, and also the amount due depositors.

The indictment says, that the report purported to set forth and declare the whole amount due depositors and specifies the amount, the report indicated and declared was due depositors.

The statute says such report shall be verified by the oath of the two principal officers of the bank.

The indictment says that the defendant is one of the two principal officers of the bank, and, in proper form, alleges that he verified by his oath the said report. The statute also says that any willful false swearing in regard to such, or in regard to any reports made to the superintendent of the banking department pursuant to the provisions of such act shall be deemed perjury.

The indictment charges that the defendant willfully swore that such report was, in respect to the statement of liabilities, in all respects correct to the best of his knowledge and belief and showed the true condition of the bank, when in truth and in fact it was not in all respects correct to the best of his knowledge and belief, as he well knew, and. charges that the amount due depositors was not the sum set forth in the report, but was much larger sum, as the defendant well knew. These matters being set forth in the proper legal form and verbiage as they are in this indictment, are sufficient.

The oath is alleged to have been taken before an officer duly authorized to administer oaths. His name and office are given in? the indictment.

It was not necessary to set forth in full the affidavit by which he verified the report.

All that is necessary is to set forth its substance and effect. Section 2.91, Code of Civil Procedure; People v. Phelps, 5 Wend., 9; People v. Warner, id., 271; Wharton’s Crim. Law, 9th ed., § 1298.

The indictment sets forth the amount stated in the report to be ■d ue depositors, and then proceeds to state that such sum was not the amount due creditors, but that in fact the amount due creditors was a much larger sum.

It was not necessary to specify in the indictment how much larger that sum was; all that was necessary was to negative the truth of the alleged fact or statement upon which the charge of .perjury is predicated.

It is not like a case of larceny, where the grade of the offense depends upon the value of the thing taken.

Some stress has been laid upon the fact that in § 273 it says that the statement of assets shall be verified bv the oath of the trustees, while in § 279 it provides that the schedule or statement of assets and liabilities shall be verified by the trustees. If this indictment was against the trustees so verifying the report, ■the questions raised upon these differences in the two sections might be of some consequence; but I do not see how they can be in this easel Assuming that the verification or oath of the trustees is defective, I cannot see how that affects the defendant. The oath or verification of the officers and of the trustees are separate and distinct affairs; the one is as to the whole report, the other is as to -certain statements in the report.

If one is wrong in form, is extra-judicial, or in any way defective, that does not in any way affect the other.

However defective the report or affidavit may he in other respects if in making it out the defendant has willfully, knowingly, sworn that the liabilities of the hank, the amount due depositors, was a certain sum or amount, when in truth and in fact it was another and different sum or amount, and he knew it, then he is guilty of perjury.

For these reasons I think the court below erred in sustaining the demurrer to the indictment, and that the judgment of the -court of oyer and terminer allowing the demurrer to the indictment should be reversed.

Putnam, J., concurs.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    The People, App’lts, v. Matthew T. Trumpbour, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed June 1, 1892.)

    Perjury— Savings banks—Report—Oeeicers.
    An assistant treasurer of a savings bank, who assumes to he one of the two proper persons to verify the report, and does so,cannot thereafter claim that he was incompetent to take the oath, and was not the proper person to verify it, in order to escape the consequences of a false verification.
    Appeal from judgment of oyer and terminer, sustaining demurrer to indictment for perjury.

      J. N. Vanderlyn and A. Schoonmaker, for app’lts; William Lounsbery and D. M. De Witt, for resp't.
   Herrick, J.

This is an appeal from the judgment of the Ulster county oyer and terminer, sustaining a demurrer to' the in'dictment herein.

The case is similar to the cases against James E. Ostranderargued before us at this term, except that while in those cases it was alleged that Ostrander was the treasurer of the Ulster County Savings Institution, and one of its two principal officers, in this-case it is alleged that the defendant Trumpbour was the assistant treasurer and one of its two principal officers, and acting, as such.

The reports upon which the several indictments were founded, were made at different times.

It is claimed by the defendant that inasmuch as the statute-provides that the report shall be verified by the two principal officers, and it appears upon the face of the indictment that the-defendant was the assistant treasurer, that, therefore, he was not, one of the two principal officers, that he is not one of the persons required by the statute to make the affidavit or verification, that, his action in making it was extra-judicial, and that an indictment-against him for perjury in making such verification will not lie.

Whether he was or was not one of the two principal officers of the bank, I think is of no consequence; assuming that he was not,, still in my opinion his contention was unfounded.

A report was required by law to be made and verified ; he assumes to be one of the two proper persons to verify it, and does so. He cannot now come forward and claim that he was incompetent to take the oath, that he was not the proper person to verify the report, so long as in fact he did verify it. People v. Bowe, 34 Hun, 528; Chamberlain v. People, 23 N. Y., 85; Howard v. Sexton, 4 Coms., 157; Pratt v. Price, 11 Wend., 128; Mackin v. People, 56 Am., 167; Penal Code, 98.

The other questions under the indictment have been discussed in-the Ostrander case decided at this term.

The judgment of the oyer and terminer allowing the demurrer should be reversed.

Putnam, J., concurs.


author: Sedgwick, Ch. J.

text:
    Anthony McGarry, Resp’t, v. The New York & Harlem Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    1. Master and servant—Vicious animals—Notice to master.
    It is the duty of a master who employs a servant to attend to horses to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that is dangerous from being kept in a stall for the work of a man upon it. Knowledge of the superintendent of the stables or of a head hostler of the viciousness of a horse is knowledge, of the master.
    S. Same—Charge.
    In an action for injuries received by an hostler from a vicious horse, it. is proper for the court to refuse to charge that if the horse from the time of its purchase had been fed and cared for in the manner in which plaintiff was required to do so, without, to the defendant’s knowledge,- attacking or injuring any person, defendant was justified in believing that it was safe for plaintiff to feed and take care of him and that plaintiff could not recover.
    3. Same—Instructions to servant.
    If a servant is ordered to tend a horse that is dangerous and vicious, it is the duty of the master to warn the servant of the character of the risk he is about to take, if it is known to the master.
    4. Same.
    It is not necessary, in order to recover in such a case, to prove that the horse had previously done similar mischief to the knowledge of the defendant; it is sufficient that what the defendant previously knew of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did.
    Appeal by defendant from judgment entered upon the verdict of a jury.

      M. IÍ. Hirschberg, for app’lt; Francis G. Devlin, for resp’t.
   Sedgwick, Ch. J.

The action is for damages alleged by the complaint to have been suffered by the plaintiff from his being-bitten and kicked by a vicious and dangerous horse, known by the defendant to be vicious and dangerous. At the time of the occurrence the plaintiff was employed by the defendant as hostler, and it was part of his duty to care for the horse. When he was injured he was in the stall, about to feed tlie horse.

The first position taken for the appellant is that there was no evidence that the horse was dangerous and vicious or accustomed to attack and hurt any person handling and caring for him. On the circumstances in evidence, and on inferences that might be drawn from them, the plaintiff was entitled to the judgment of the jury on this point.

It is further argued that if the horse was vicious there was not the slightest proof that the defendant knew it. On the trial the plaintiff claimed that the relation of the employees of the defendant was of such a kind that their knowledge was the knowledge of the defendant One of these, named Totten, was the superintendent of the stable, which contained about 1,000 horses. It was the duty of the defendant to the plaintiff as its employee to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that was dangerous being kept in a stall for the work of a man upon it. If Totten was in the performance of this duty upon the delegation of the defendant, and that was a question of fact proper for the jury, the jury might have also competently found that Totten was informed of the viciousness of the horse and for that reason had caused him to be transferred from one floor to another. Under the circumstances proved, it should he held that Totten’s knowledge was the knowledge of the defendant.

The other employee was one McQuaid. His employment did not have as wide a scope as that of Totten. In the stable he assisted in grooming horses, but he was not amere groom. He had charge, with two or three men under him, of a gang of sixteen horses. These were particular circumstances tending to show that he was a servant of more authority than the grooms. The evidence was such that the jury would be authorized to find that part of McQuaid’s duties was to look generally after the horses in his charge, to notice whether any were vicious and to cause its removal or that a groom should not be sent into the stall with it. If such were the case, he was an agent of the defendant in this regard and it was bound by his knowledge. There was testimony for the jury that McQuaid had knowledge that the horse was dangerous.

The learned counsel for the appellant objects that the judge left it to the jury to say whether the knowledge óf McQuaid was the knowledge of the defendant. The objection would be well founded if the testimony incontrovertibly showed that the relation of McQuaid to the defendant was such that his knowledge could not be imputed to defendant. As we have already said, the jury could find that the testimony as to McQuaid’s employment signified that he was in the place of the defendant performing certain duties which it was bound directly to the plaintiff to perform.

The court was asked by defendant to charge the jury that even if the men employed in the stable to keep and take care of the horses did know1 of the horse’s viciousness, that fact did not charge the defendant with notice or knowledge. The court correctly refused to make this charge. The charge included McQuaid, and we. have already held that, for the purpose involved, the jury might find he held the place of the defendant.

It was objected to the countercharge that if Tait, a stable man, told McQuaid that the horse was vicious, that was sufficient to put the defendant on inquiry, and that if the defendant did not inquire, the jury could find that it had notice that the horse was vicious. This charge seems correct, when viewed with that part of the charge that instructed the jury to find in substance whether it was part of McQuaid’s duty to observe what was the character of the horse. The court made a specific reference to this by saying that if McQuaid wras the person in charge of the horse, then such a notice to McQuaid would be notice to the defendant 'and put it on inquiry. There wras nothing objectionable in the charge' that this inquiry, if made by McQuaid, would have undoubtedly resulted in ascertaining what sort of a horse it was. From the testimony in the case there is no doubt that McQuaid could have learned the character of the horse as it was.

The defendant excepted to the refusal of the court to charge that if the horse from the time of his purchase by defendant had been fed and cared for in the manner the plaintiff was required to feed and care for him, without to the defendant’s knowledge attacking or injuring any person while so being fed and cared for, the defendant was justified in believing that it was safe for the plaintiff to feed and take care of him and the plaintiff could not recover. The request does not seem to have been correct; if the defendant had no knowledge of whether, the horse was dangerous in the stall or whether he was not, a belief that he was not dangerous would have been justified.

There was an objection to the court instructing the jury to find whether the defendant owed a duty to plaintiff to instruct him with respect to the character of the horse in question. There was such a duty, if, as the jury might find, the horse was dangerous and known to be so by McQuaid who put the plaintiff to work upon the horse. The employment was to attend to horses not vicious or dangerous. ' If the plaintiff were ordered to tend a horse that was dangerous and vicious it was the duty of the employer to warn the servant of the character of the risk he was about to take, if it were known to the employer.

The court refused to charge that the plaintiff, in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar in character to that complained of, and that the defendant knew it. The refusal to charge was correct. For it was sufficient to create liability on this point that what the defendant knew previously of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.

The defendant requested a charge that the declarations of the men employed by the defendant in the stable and shop as to the habit and disposition of the horse are not competent or sufficient to charge the defendant with knowledge. This was charged by the court, and then there was a charge as to the effect of such declarations, if they were made to McQuaid. This subject has already been referred to. There was no error.

Judgment and order affirmed, with costs.

Gildersleeve, J., concurs.


author: Gildersleeve, J.

text:
    William Calmbacher, by Guardian, App’lt, v. Louis E. Neuman et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Infants—Payment of judgment into court.
    Where judgment has been recovered by an infant, and the defendants have stipulated not to appeal, but are willing and anxious to pay the same, and the guardian ad litem is unable to give security, the court has power to allow the defendants to pay the money into court and to direct the cancellation of the judgment.
    Appeal from order of special term, permitting defendants to pay the amount of a judgment into court, and directing the clerk, on such payment being made, to cancel the judgment.

      W. Bourke Cochran, ( Wales F. Severance, of counsel), for appl’t; Ullo & Buebsamen, (James W McFlhinney, of counsel), for resp’ts.
   Gildersleeve, J.

The plaintiff, an infant, by his guardian ad litem, brought this action to recover damages for injuries sustained while in the employment of defendants, and a verdict was rendered in his favor for two thousand dollars, and judgment duly entered. Both parties agreed not to appeal. The defendants, anxious to pay the judgment, requested the guardian ad litem to give security, pursuant to § 474 of the Code, or have himself appointed general guardian of said infant. Being unable to furnish the necessary security, he failed to comply with this request. No execution was issued by the plaintiff. Upon motion of defendants, setting up by affidavit the foregoing, the court, at special term, ordered defendants to pay into court the amount of the judgment, with interest to date of deposit, and directed the clerk, on such payment being made, to cancel of record the said judgment From this order this appeal is taken.

The brief of the learned counsel for the appellant in this matter, is largely taken up by discussion of the merits of acts that never happened, but that might have taken place in the regular course of procedure. We are inclined to believe that his views on these hypothetical situations are, in the main, correct, but we are not called upon to determine their correctness in disposing of this appeal. It is undoubtedly true that had defendants parted with the amount of the judgment in some manner authorized by law in satisfaction thereof, their liability would have ceased, though the money never reached the infant. The pajment, in virtue of due and regular legal process, would have been a bar to any further proceedings. Code, § 743; Shailer v. Morgan, 30 St. Rep., 425; Wuesthoff v. Germania L. Ins. Co., 107 N. Y., 680; 12 St. Rep., 825.

Had the amount of the judgment been paid to the plaintiff’s attorney by either the defendants or the sheriff, the responsibility of settlement with the guardian ad litem would then have been with the attorney. Had the money failed to reach the infant, it would then have been “ a matter between the court, the plaintiff’s attorney, the infant, and the guardian ad litem."

But we must reason from the situation as we find it. The powers of the plaintiff/ had he chosen to exercise them, are not material to this discussion. Their effect is equally immaterial. Neither demand consideration here.

The facts that confronted the learned judge, at special term, in this matter, were as follows, viz.: A judgment against the defendants, awarding the plaintiff damages, through his guardian ad litem ; a stipulation that no appeal was to be taken therefrom by either party; no execution had been issued; no security had been given by the guardian ad litem to entitle him to receive money or property of the infant, as provided, by § 474 of the Code," and the concession that he was not in a position to do so; and the further fact that the defendants were anxious and willing to pay said judgment and asked authority to pay the amount thereof into court for the benefit of the plaintiff.

Section 469 of the Code is as follows : “ Before a summons is issued in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof." Section 474 of the Code expressly provides that a guardian ad litem for an infant party “ shall not be permitted to receive money or property of the infant, other than the costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court.”

The legislature has very properly assumed to prescribe and regulate the appointment of guardians ad litem, and it is within its power to define, limit and regulate the authority of the guardian, and declare the conditions under which the authority shall be exercised. Infants are specially entitled to the protection of the law. It is obvious that the legislature in enacting the above provision intended to furnish protection to the infant. It is a wise safeguard, and imposes upon the guardian the imperative duty of giving security before he can lawfully receive money or property of the defendant Wuesthoff v. Germania Life Ins. Co., 107 N. Y., 580; 12 St. Rep., 825.

There is no express authority in the Code for the proceeding taken herein, nor are we able to find any precedent therefor. From this, however, it does not necessarily follow that the order was improperly made.

Did the court possess the necessary power to grant the order asked, and if it did, was the power properly exercised?

Prior to January 1, 1830, when the Revised Statutes took effect, the chancellor of New York had the same jurisdiction over infants as belonged to the chancellor of England. Our courts of record have the same equity jurisdiction possessed by the courts of England, with the exceptions, additions and limitations created and imposed by the constitution and laws. 2 Kent’s Com., 223.

In the absence of any statutory provision for or against the order in question,0 we are of the opinion that the power to grant it is embraced within the general inherent powers of a court of equity. A court of equity or a superior court of record has always power over its own judgments. Dietz v. Farish, 43 N. Y. Supr., 87.

It is common to take payment into court before judgment. A plea of tender before suit requires a defendant answering to pay the tender into court at the time of answering, and yet the authority therefor is not found in any express statutory provision. Becker v. Boon, 61 N. Y., 321.

When the amount due has become certain, by entry of judgment and stipulation not to appeal, there can be no valid objection, under our practice, to paying the money into court and satisfying the judgment, for any good cause. Any court having equity jurisdiction would decree payment of money so received to whomsoever establishes his rights to it. The course here followed puts a stop to injuries the defendants are sustaining. It finds support in the general principle of equity jurisprudence “ that equity aims at putting parties exactly in the position which they ought to occupy; giving them in specie what they are entitled to enjoy; and putting a stop, actually, to injuries which are being inflicted.” Bispham’s Prin. of Equity, 67. It relieves the defendants from the obstacles and embarrassments which the lien of the judgment upon their real estate entails; saves them accruing interest, and also saves them from possible sheriff’s fees, when they stood ready and willing to pay. It protects the infant by securing to him the amount of the judgment, while the defendants were ready and able to pay it, and secures him from loss through his guardian ad litem, who already has manifested inability to furnish security. Further, the interests of the infant imposed upon the court the duty of protecting his rights and pre1 serving his property. “As to all matters not included within the statutes, and in many states concurrently with the statutory system, the original equity jurisdiction over infants, like that over administrations, still remains in full force, to be exercised whenever occasion calls for its being set in motion'.’’ Pomeroy’s Equity Jurisprudence, Yol. 8, p. 326.

We think the court had power to bestow the relief sought and that, under the circumstances presented, it became the duty of the court to grant the order.

The order should be affirmed, with ten dollars costs to the respondent

Sedgwick, Ch. J., concurs.


author: Gtldeesleeve, J.

text:
    James A. Whitney, Pl’ff, v. Charles L. Cammann et al., Def’ts.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    Manufacturing Companies—Trustees —Report.
    The mere making and publishing of an annual report by the trustees of a manufacturing corporation is not a substantial compliance with the statute which will prevent the penalty from attaching to the trustees, but it must be filed within a reasonable time as well. M
    Motion by defendants for a new trial upon exceptions directed to be heard in the first instance at general term.

      E. II Charming, for pl’ff; A. P. W. Seaman, for def’ts Oammann a,nd Mali; Lowrey, Stone & Auerbach, for def’t Hollins.
   Gtldeesleeve, J.

This action is brought to recover against the defendants, as trustees of a manufacturing corporation, organized in October, 1884, under the act of 1848, as amended by chapter 510 of the Laws of 1875, a debt due to the plaintiff from said corporation for professional services contracted for in November, 1886, and rendered between February 17, 1888, and January 1, 1889. The plaintiff claims that the defendants are individually liable for the said debt of the corporation, for the reason that the corporation failed to file within the twenty days following January 1, 1888, or at any time thereafter and prior to January 21, 1889, the annual report required by § 12 of said act to be filed in the clerk’s office of the county in which its business was then carried on. It is conceded that the defendants were all trustees of the corporation from 1885 down to March, 1889.

The uncontradicted evidence shows that the plaintiff’s services, for which the company became indebted, were all rendered and became an obligation against the company between February 17, 1888, and January, 1889, and that the sum claimed in this action therefor is all due and unpaid.

The defendants’ counsel urges in his brief that, inasmuch as the report was duly made on the 20th day of January, 1888, and published in the “ Wall Street Daily News" on January 21, 1888, the trustees are not liable because of the failure to file said report, for the reason that they were not carrying on business at that time in the United States, being under an injunction, and, therefore, that they were not obliged to file their report in the office of the clerk of any county. The statute required them to file the report “in the office of the clerk of the county where the business shall be carried on.” The answers admit that the report was not filed in the office of the clerk of the city and county of New York, “ which was the county where the business of the said company has always been carried on.” The claim that the company was under an injunction is not set up in any of the answers or interposed as a defense in the action. The only evidence on the subject is the statement of the plaintiff himself that the corporation was under a preliminary injunction when he first came into its employment in 1886, and that the injunction was never discharged. What the nature of the. injunction was, or what was its scope, does not appear, and the evidence on the subject is too meagre to be taken into consideration, especially as it was not set up in the answers or interposed as a defense.

It is true that the court of appeals have held in the case of Kirkland v. Kille, 99 N. Y, 390, that where a corporation organized under this act has never, in fact, commenced business, and before the time prescribed for making such a report has elapsed the object for which it is formed becomes impossible for it to accomplish, and there is neither ability nor intention on its part at any timo to prosecute its business, it is not required to make such report, and its trustees are not liable to creditors because of its failure so to do. But this does not apply to the case at bar, for there is no evidence or claim that the defendants’ corporation has not commenced business in the city of New York, or that it has no intention at any time to prosecute the same, even assuming that it was or is temporarily unable to do so.

It was conceded upon the argument that the annual report for the year next preceding the year in question was duly filed. But, as we have said, the evidence is not sufficiently definite to warrant us in taking this question into serious consideration, in view of the fact that it was not set up as a defense.

The defendants concede that the report was not filed at any time during the year 1888 and prior to January 21, 1889; but they allege'that the report was duly made on January 20, 1888, and published on January 21, 1888, which allegations are abundantly sustained by the evidence.

The question here presented is, was the making and publishing a substantial compliance with the requirements of the statute; such a compliance as prevents the penalty, which the statute provides, from attaching to the trustees ?

Section 12 of the manufacturing act of 1848, as amended by chapter 510 of the Laws of 1875, under which the defendants’ liability is alleged to have arisen, is as follows: “ Every such company shall, within twenty days from the 1st day of January, if a year from the time of the filing of the certificate of incorporation shall then have expired, and, if so long“a time 'shall not have expired, then within twenty days from the 1st day of January in each year'after the expiration of a year from the time of filing such certificate, make a report which shall be published in some newspaper published in the town, city or village where the business of the company is carried on, which shall state the amount of capital and the proportion actually paid in and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of such company, and filed in the office of the clerk of the county where the business of the company shall be carried on; ajid if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all debts of the company then existing and for all that shall be contracted before such report shall be made.”

The statute makes the trustees personally liable for all debts existing at the time of the failure of the corporation to malee its report, and for all debts that shall be contracted before such report is made.” The corporation is at liberty to make, publish and file its report at a time subsequent to the time required; and when it has so done, the liability of the trustees ceases for all debts contracted subsequently to such time, but they are still liable for all debts existing up to the time of such filing of the report. See Boughton v. Otis, 21 N. Y., 266. The court of appeals in that case, as we understand it, did not hold the theory, advanced by the counsel for the defendants herein, that the personal liability of the trustees ceases upon the mere malting of the report; but, on the contrary, the court specifically asserts that the trustees “ are chargeable with all prior debts, and all those contracted during the twenty days (the first twenty days of January), but their hands are not so tied but that they may stop the incurring of further liability by filing the report after the time when it ought to have been done.”

We can find no authority for the contention of the defendants that the statute under consideration simply implies a duty or an obligation on the part of the corporation to file and publish, and imposes no penalty for a failure to do so. The cases relied upon by the learned counsel for the defendants to sustain this contention are Cameron v. Seaman, 69 N.Y., 396, and Butler v. Smalley, 101 id., 72. While it may be fairly claimed, under these authorities, that the language of the statute requiring publication and filing within the twenty days is simply directive, the court of appeals in these cases clearly recognizes and adjudges that the statute is mandatory in the sense of making it an imperative duty of corporations to substantially comply with its terms by publishing and filing within the twenty days, or as soon thereafter as both acts can be done by prompt performance and diligent action ón the part of the trustees. In Cameron v. Seaman (supra), the trustees duly prepared and signed the annual report; on January 20th it was verified by the president, and on the same day sent by mail to the clerk of the county to be filed.

The clerk received and filed it on the 22d day of January. The trustees, also, on the 21st day of January, sent a copy of the report by mail to a lawful newspaper for publication, and it was published therein on the 24th day of January. It will be seen that all the acts necessary to an avoidance of the penalty were performed, but that the filing was two days beyond the time preferí bed by law and the publication four days. Andrews, J., in delivering the opinion of the court, says : “ The statute must have a fair and reasonable interpretation, and effect must be given to it according to the intention of the legislature as indicated in the language used. The language is not to be wrested from its meaning to protect trustees against liability, however serious, to which they may be exposed; and on the other hand, the statute being in the nature of a penal statute, is to be strictly construed •and cannot be extended beyond the clear import of its language. ■Smith on Statutory and Constitutional Construction, 854; Garrison v. Howe, 17 N. Y., 458; Verona Company v. Murtaugh, 50 id., 314. * * We are of opinion that the words ‘make a report ’ in this section refer to the preparation, signing and verification of the report, and that the limitation of the twenty days •does not apply to the acts of filing or publication. * * * That the filing and publication must be within a reasonable time after the twenty days, and this requirement in view of the object of the statute could only be satisfied by prompt performance and •diligent action on the part of the trustees.”

In Butler v. Smalley, supra, the trustees met the requirements of the statute except as to the filing, which was not done until February 13th, twenty-four days after the time prescribed. Dan-forth, J., delivering the opinion of the court, states, with approval, the rule laid down in Cameron v. Seaman, above quoted, ■and characterizes it “ as most consistent with reason and a due regard to convenience and justice.”

In this case it is held that it is enough that the report be filed within a reasonable time after the expiration of the twenty days; and also that ‘‘in the absence of anything to show the want of good faith and active diligence in respect thereto on his part, the trustee, when no time is fixed by the statute within which an act ¡shall be performed, should not be subjected to a penalty, provided the thing required is actually done at a reasonable time, having regard to the nature and circumstances of the performance.”

In the case at bar, there was a total failure of the corporation to comply with the law, in that it filed no report within twenty days after the 1st of January, 1888, or at any time during that year, or prior to the 21st day of January, 1889; and by reason of ¡such default the defendants are clearly brought within the mischief at which the act is aimed, and incurred the statutory liability provided therefor.

Each requirement of the statute appears to be a part of the whole scheme devised for the protection of those dealing with corporations. The failure to which the penalty attaches is not only the making, but the publishing and filing of the report. The manifest intent of the legislative act under consideration is to ■prevent concealment and to insure the utmost publicity as to the ■corporate resources and liabilities. 3STo other construction than She one here given will carry out the intent of the act. The pub-libation in an obscure apper of small circulation and. seldom met,, though a strict compliance with the law in that particular, furnishes little information to creditors of the company and those who might have dealings with it of its financial condition, at fixed annual periods, to enable them to act advisedly in their corporations and obligation of giving to the business community an opportunity to get the information that their annual reports furnish by an examination of the files in the offices of the clerks of the respective counties of the state, within a reasonable time after the expiration of the twenty days.

There was no error in the admission or exclusion of evidence that requires consideration here. The trial judge was justified in permitting the plaintiff to testify as to the number of hours of service that he had rendered the corporation from recollection,, refreshed as it had been by reference to original memoranda, made-by him or at his direction, at the respective times of the rendition of such service, and which memoranda he knew _wer© correct when made. See Bigelow v. Hall, 91 N. Y., 145 ; Mayor, etc., v. Second Avenue R. R. Co., 102 id., 578; 2 St. Rep.,. 526. And, indeed, the book itself, supplemented by plaintiffs testimony, would have been admissible to prove such fact. See Taggart v. Fox, 11 Daly, 159 ; Natl. Ulster Co. Bank v. Madden, 114 N. Y., 280; 23 St. Rep., 220.

For the reasons above indicated defendants’ motion for a new trial must be denied, and judgment must be ordered for the-plaintiff upon the verdict, with costs.

Sedgwick, Ch. J., and Dugro, J., concur.


text:
    Frank F. Lovell et al., Resp’ts, v. Dennis Shea, App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    1. Conversion—Stolen property—-Bona fide purchaser.
    A bona fide purchaser of stolen goods for value, acting in ignorance of the fact that he was dealing with stolen goods, acquires no right of property therein by such purchase, and is liable to the true ow.ner for their conversion.
    2. Same—Demand, when not necessary.
    It is only where a defendant has exercised no act of ownership over the property, and has proceeded in good faith, that a demand and refusal are necessary to put him in the wrong and render him guilty of conversion.
    3. Same—Corroboration of thief.
    Proof that the boxes which contained the goods are empty;_ that the-thief had an opportunity to steal said goods, and that he was discovered with one lot of them at defendant’s place of business attempting to sell them, is sufficient to corroborate the evidence of the thief.
    4. Same—Measure of damage.
    Where the goods have little or no market value, but are of special value to the plaintiff in his business, such as stereotype plates, the actual value to plaintiff for use in his business is the proper rule of damages.
    Appeal from a judgment entered on the verdict of the jury in favor of plaintiffs, and from an order denying defendant’s. motion for a new trial.

      Carter, Pinney & Kellogg, for resp’ts ; Johnston & Johnston, for app’lt.
   Gildersleeve, J.

The complaint alleges the wrongful conversion by defendant of a quantity of stereotyped book plates of uto total value of §1,017.75, the property of plaintiffs. The plaintiff-s are publishers. The defendant is a paper stock and metal •dealer and general jimkman. It is claimed by the plaintiffs that •one. Andrew J. McKenna, an employee of plaintiffs, stole the plates and sold them to the defendant. The issues raised by the pleadings and submitted to the jury for determination were, (1) the ownership of the plates by plaintiffs; (2) the larceny of them by McKenna; (3) their purchase by defendant; and (4) their value. The trial resulted in a verdict in favor of the plaintiffs for the sum of $449.84.

The action was properly brought. When a chattel once passes feloniously from the possession of the lawful owner, no subsequent holder can acquire any title thereto, except by consent of the •owner. A bona fide purchaser of stolen goods for value, acting in ignorance of the fact that he was dealing with stolen goods, acquires no right of property therein by such purchase. He has no more rights than the thief. The right of property is absolute and inherent in the owner. Blackstone says: “The origin of private property is probably founded in nature ; * * * but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are ■some of those civil advantages in exchange for which every individual has resigned a part of his natural liberty. The Laws of England are, therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right.” Chase’s Blackstone, 78.

“ The general right of dominion which the owner of a chattel has in it entitled him to the use of it at all times and in all plac.es.” Fouldes v. Wiloughby, 8 M. & W., 540.

No country has attributed greater importance to this right than ■our own. Our laws recognize it as necessary to our happiness and prosperity, and throw around it the strongest safeguards. ■“ Conversion is an unauthorized act, which deprives another of his property permanently or for an indefinite time. Wrongful intent is not an essential element in a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. . See Boyce v. Brockway, 31 N. Y., 490; Connah v. Hale, 23 Wend., 462.

If McKenna stole the plaintiffs’ stereotyped book plates and sold and delivered them to the defendant, who purchased them, ■oven in the ordinary course of business and without guilty knowledge, the defendant is liable to the plaintiffs. See Pease v. Smithy 61 N. Y., 477.

The question of demand does not arise in this case. The defendant admits in his answer that plaintiffs demanded a return of the chattels or payment of the value thereof. If credit is given to-the testimony offered, by the plaintiffs, then the defendant received, the chattels into his possession and assumed dominion over them-Under such circumstances, no demand is necessary to sustain an action for conversion. It is only where a defendant has exercised no act of ownership over the property, and has proceeded in good faith, that a demand and refusal are necessary to put him in the wrong and render him guilty of conversion. See Pease v. Smith., supra.

We do not feel called upon to discuss the position taken by the-learned counsel for the respondents that the appellant is not entitled to claim, on this appeal, that the verdict, so far as it finds that, defendant received the chattels in question, is insufficiently supported by the evidence, because he did not ask the court to direct a verdict in the defendant’s favor on that ground. We think the-technical rule that this proposition invokes may be safely disregarded. We are of the opinion that the verdict is fully and sufficiently supported by the evidence. True, the plaintiffs’ main witness, McKenna, upon whose testimony the verdict is largely based, is an acknowledged thief. It may fairly be presumed that his motives to make out a good case for the plaintiffs are strong.. But he is not entirely uncorroborated. The boxes that contained. .the chattels are empty; McKenna had an opportunity to steal the-plates, and as to one lot he was caught by a reliable witness red: handed, with them in his possession, and at the defendant’s place-of business, attempting to sell them. The jury could, without doing violence to the law, believe the thief, although uncorroborated.

The learned trial judge, most prudently and wisely, omitted no proper warning to the jury as-to the caution they should observe-in receiving the testimony of such a witness as McKenna. He-said: “A man in McKenna’s situation is to be believed with hesitation ; * * * you must be on your guard against a man that has committed such an offence as McKenna did.” Certainly, the defendant’s rights in this regard were fully protected.

In Pease v. Smith, supra, the court of appeals say: “ The most, the judge can do is to caution them (the jury) to weigh such testimony with care and close scrutiny. All testimony, when once-admitted in the case, is, in general, for the jury to consider,, whether it be that of an accomplice in crime or of a person discredited as to his general character, or not strictly regardful of the truth.”

On the question of value the learned counsel for the defendant, earnestly contends that there is no legal proof of the value of the plates, and that the court erred in the rule of damages stated to-the jury. These are his principal contentions: The value of the-plates depended upon their condition at the time of the conversion, the damaged plates had no value except as old metal, three or four cents a pound, as testified to by defendant. Of the 1,357' plates stolen by McKenna, according to his own testimony, only seventy-four were broken. He says: “I battered them myself with a hammer or ax ; I know all the rest were not broken- and in good condition. I took them out of the boxes.” This testimony is uncontradieted, and its weight depends entirely upon the degree of credibility placed upon McKenna’s evidence. As we have already seen, the jury saw fit, under proper instructions, to give substantial credit to McKenna’s testimony. No objection was made to the admissibility of any of the evidence as to value, and the only question l’aised is as to whether it furnished any reasonable basis for the finding of the jury. The plaintiffs called Edward Lovell, an employee of the United States Book Company, and formerly in the employ of the plaintiffs as general superintendent of the press room, who testified that in the course of business the plates of the firm came under his inspection. He testified as follows: “I have been in the printing and publishing business all my life. We handled a great many stereotyped plates like these in question. * * * In the course of my experience I have bought and sold a great many stereotype plates. Q. From your experience in the business are you familiar with the values of stereotype plates like those in question in this action ? A. Yes, sir. * * * I ought to be competent to judge what their value is. * * * A plate is never put back in the vault imperfect; these plates were in good condition ; I know how many plates there were belonging to each of these volumes.

“ Q. Now, state to the jury and the court from your experience in the business and from your knowledge of the condition of these-plates, what their value was when the witness McKenna testifies to having taken them ? A. We value them at seventy-five cents a page; it makes a total value of §1,017.75.”

No exception was taken to the admission of this evidence, and there is an entire absence of testimony in contradiction. It is ample basis as to value upon which to rest a verdict. It is manifest that the value placed upon the plates by this witness was the actual value to the owner. The plates were adapted to the spec: ial use of printing the books, the contents of which in type form they bore upon their surface, and were not, strictly speaking, marketable property, readily saleable or procurable in the market. They had a special value to the plaintiffs in the business in which they were engaged. The witness had shown himself competent to testify as to their special value, and in our opinion it was the correct measure of damages. “ If the property have little or no marketable value, the actual value to the owner is the just rule. The jury may consider the cost of replacing the property.” 2 Sedgwick on Dam., 474. “ Such property (stereotype plates) in market would be worth comparatively nothing, but to the owner it might be of great value; and that would be°a very inequitable and harsh rule that limited his recovery against a person converting it to its market value, which would really be but little, if anything, more than the value of .the material. In such cases, it is-held that the measure of the recovery is the fair value of such property to the plaintiff.” See Wood’s Mayne on Damages, 340.

“ The actual value to one who owns and has uses for them is the just rule of damages in an action against one who converts. them to his own use.” Heald v. MacGowan, 15 Daly, 233; 25 St. Rep., 579 ; Stickney v. Allen, 10 Gray, 352 ; Starkey v. Kelley, 50 N. Y., 676; Wehle v. Haviland, 69 id., 448; Wright v. Bank of Metropolis, 110 id., 237; 18 St. Rep., 92.

In all cases of conversion, except where punitive damages are .allowable, the true rule to be adopted rests upon the fundamental theory which affords the plaintiff a just indemnity for the loss he has sustained. The market value of these plates as “ old .metal ” is not compensation to the plaintiffs. The actual value to the plaintiffs for use in their business is the proper rule of damages. Ho other rule will secure to them just indemnity.

The evidence warranted the jury in placing a much higher value upon the plates than the sum found by their verdict.

W-e can find no error in the instruction from the court. The question of value was fairly left to the jury upon the evidence, ■which, we have already said, was sufficient.

The case is free from any exception to the admission or exclu.sion of evidence that demands consideration.

It follows that the judgment and order appealed from must be .affirmed, wnth costs.

Dugro, J., concurs.


text:
    Marcus B. Heilner, Resp’t, v. The China Mutual Insurance Co., App’lt.

      (New York Superior Court, General Term,

      Filed March 14, 1892.)

    1. Insurance (marine)—Waiver of proofs of loss.
    A refusal to pay on the ground that the policy has been cancelled excuses the assured from presenting full proofs of loss.
    ■3. Same—Approval of risks.
    An open policy of marine insurance provided that it should cover such risks “ only as may be approved and endorsed thereon.” No risks were endorsed on the policy, but it was the custom to enter the risks in a book furnished by the company and the company signified its approval by "writing an initial in the column headed “ Approved.” Held, that the appearance in such book of the initial against the risk sued for authorized a finding that it had been approved by the company.
    8. Same—Cancellation.
    The receipt of premiums on other risks after a loss has occurred is proof of the pendency of the policy, notwithstanding a prior notice that the company intended to cancel it. If such premiums were received under a mistake, they should he returned with notice of the mistake to prevent a continuance of the policy.
    4. Same—Seaworthiness of vessel.
    Testimony of the captain of a vessel that she was seaworthy and fit for the voyage, and of the owner as to repairs and 'that before the voyage in question she was thoroughly overhauled is sufficient prwna/aeii! proof of seaworthiness.
    5. Same—Salvage—Expenses of defense of action.
    Where the insurer after notice fails to defend an action for salvage services, it is reasonable for the assured to defend to prevent an unjust recovery, and may recover the expenses so incurred of the insurer.
    <8. Same—Pleading.
    Where the policy provides for payment of the loss in thirty days after proof thereof, a complaint which alleges that proofs of loss were exhibited, but does not allege when they were presented, is insufficient.

      Appeal from, judgment entered upon report of referee.

      Glarlc & Bell, for app’lt; Joseph A. Welch, for resp’t.
   Sedgwick, Ch. J.

—The action is upon an open policy of marine insurance issued by the defendant. The action was referred and the plaintiff had judgment. The subject of the insurance was a cargo of coal.

It is objected by the defendant that before the referee there was not after the loss presented by the plaintiff the proof of loss intended by the policy. The words of the policy are 11 proof of loss, proof of interest and adjustment.” It may be admitted that the insured did not present, at least in full, the proofs named in the policy. The company, however, took the position that it was not liable because they had cancelled the policy. This, if it did not announce, yet it necessarily involved an intention not to require or not to receive proof of loss, which would be a transaction that would signify that the policy was not cancelled. Moreover, on the facts of the case a finding would be sustained that the acts, and declarations would justify the insured in thinking that the defendant did not require formal proof of loss to be made.

It is also argued by the learned counsel for defendant that the risk upon the cargo had not been approved, as the policy required. By the policy, it was to cover such risks “ only as may be approved and endorsed thereon.” In fact, the policy being with the insured, the company never approved or endorsed upon it the risks they took. When the policy was issued and given to the insured a memorandum book was given. According to the testimony of the agent of the defendant, the approvals and endorsements intended by the policy were made and to be made in this book, for he testified that when the entries of the book were filled in the book would be sent to the office, and then in case of approval the initials, “B. & P., atty’s,” would be placed in the column of the book headed “ approved.” There were no such initials in book opposite the name “John A. Post,” a boat which carried the coal insured. On the trial the plaintiff relied upon another entry made in the book, in the column “ approved.”

When it was intended to load boats with coal, and in advance of loading, the plaintiff would enter in the book the name of one or more boats and send the book to the defendant’s office. After being examined by the company it would be returned with the initial D in the column “ approved.” Such had been the course of business during the running of the policy. A referee would be sustained in finding that such initial signified to an insured that there had been an approval by the company, and as to the matter of approval, in fact, and the method in which it was regularly made, the evidence of the agent was not conclusive, and on the whole a referee could find for the plaintiff on this subject. This ground shows no reason for reversal.

It is insisted that the policy was definitely cancelled before the coal was put in the boat, the risk under the policy beginning at the loading of thp cargo. There was sent before the risk began a letter which announced the intention of the company to cancel the policy. To effect the cancellation it was necessary that some act should accompany this intention. The burden of proving this act was upon the defendant. It was not absolutely or incontrovertibly shown here. Whether or not it was done depended upon inferences that were conflicting and upon the comparative credibility of the witnesses. The referee has found upon enough evidence that there was not a cancellation.

On this point also the receiving of premiums was proof that the policy was pending within the intention of the defendant. It was received as to other coal after the loss in this case. The policy was an entire contract, and it all existed or no part of it did. It may have been the fact that the company’s officers believed that the risks paid for were pending at the time of the supposed cancellation, and, therefore, not affected by the cancellation. Such, however, was not the case, and to prevent the continuance of the policy beyond the time of the cancellation as claimed by the company, there should have been a return or an offer of return, with notice of the mistake of fact. Nothing of this kind was •done.

Sufficient prima facie proof of the seaworthiness of the boat was given by the plaintiff. The captain testified that the boat was seaworthy and fit for the voyage. The owner testified as to repairs to the boat from time to time ; that before the voyage she had been thoroughly overhauled, and that to him she appeared to be right.

On the trial it appeared that after the boat and cargo had been sunk in the bay they were raised by one Baxter, who sued the ■plaintiff in admiralty for the salvage services. The plaintiff notified the defendant of the pendency of this suit, and required that they should defend it.. The defendant did not defend. The plaintiff defended, and judgment was entered against him. On the present trial the plaintiff recovered, beside the amount of the-judgment in the admiralty suit, the costs of that suit, certain disbursements made in it, and also counsel fees to .counsel for services in the suit. The defendant contend that it is not liable beyond the amount of the judgment, arguing that the other expenses were' unnecessarily incurred, or, in other words, that the plaintiff should have prevented the admiralty suit by paying Baxter’s bill, or should not have defended the suit.

While between themselves the defendant was bound to pay the wrecking expenses, and to indemnify the plaintiff in that regard, yet in the admiralty salvage action the plaintiff would be bound primarily to pay the claim. Therefore when the defendant omitted to defend, it was reasonable that the plaintiff should appear by counsel to prevent any other recovery against him than .such as was just and in accordance with the facts. The referee was correct in allowing the amounts referred to.

It is necessary, however, that there should be a new trial. The defendant moved to dismiss the complaint on the following ground, among others, that it did not contain any allegation that proof of loss was exhibited to the defendants thirty day before the commencement. The complaint alleges that by the policy, in case of loss such loss, to be paid in thirty days after proof of loss and interest. It further alleges that the plaintiff caused to be exhibited to the defendant due proof of the said loss and damage, but that no part of the same has been paid, etc. There is an omission to allege that the proof was exhibited thirty days before the beginning of the action. Therefore it did not appear by the complaint that the loss was payable.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to abide the event.

Dugro and G-ildersleeve, JJ., concur.


author: Follett, Ch. J.

text:
    Ambrose de V. Montrose, Resp’t, v. Susan E. Wanamaker, App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    .Estoppel—Former adjudication.
    Defendant and one St. John, by a contract of dissolution of partnership, agreed, in 1886, that St. John might sell for and on account of defendant certain goods during the life of the contracts of their firm with the manufacturers of the same, and defendant also agreed that the commissions on said sales should be divided between herself and said St. John. In 1888, this plaintiff brought an action alleging that defendant had violated the contract in both particulars. Defendant answered that St. John had violated his agreement by refusing to sell a certain manufacturer’s goods and also by refusing to sell goods on account, of defendants in December, 1886, and the jury gave a verdict for §179. This case was begun in 1889, and in it plaintiff alleged that St, John had performed on his part, and that defendant had failed to perform said contract or to divide the commissions. The defendant denies that St. John had performed his part, and set up the previous judgment. Held, that said judgment established the fact that plaintiff was not entitled to recover for any services except those performed in December, and was a bar to this action.
    Appeal from an order of the general term of the supreme court, second department, denying a motion for a new trial, made under •§ 1001 of the Code of Civil Procedure, and affirming an interlocutory judgment which directed an accounting.

      Franh J. Dupignac, for app’lt; Levi A. Fuller, for resp’t

       Reversing 32 St. Rep., 1059.

   Follett, Ch. J.

From May, 1886, to December 1, 1886, the •defendant and Edmund St John were partners engaged in selling goods on commission at the city of New York, under the firm name of Wanamaker & Co. By the terms of the articles of partnership, the firm was to continue until January 1, 1890, but on the 1st day of December, 1886, it was dissolved by mutual consent, all of the assets being transferred to the defendant, who undertook to pay and discharge all of the liabilities of the partnership. The contract of dissolution contained the following provisions :

“And it is further agreed that for and during the month of December, 1886, the said Edmund A. St. John, in conjunction with the business he may pursue during that month, shall and will sell and dispose of, for and on account of Susan E. Wanamaker, ■any and all goods, wares and merchandise in which the said Susan E. Wanamaker may or shall then trade as consignee or otherwise; and will also sell and dispose of, for and on account . of said Susan E. Wanamaker, the goods, wares and merchandise manufactured by the firms of George Merritt & Co. and Hag-. edorn & Newman, in conjunction with the said Susan E. Wanamaker, for and daring the full term or terms of the respective contracts existing between the said Merritt & Go. arid Hagedorn & Newman, with said Wanamaker & Co., for the sale or consignment of the goods of those two firms to Wanamaker &0o. aforesaid. In consideration whereof, the said Susan E. Wanamaker covenants and agrees to and with the said Edmund A. St. John, to furnish the said Edmund A. St. John, free of charge, a space to be selected by her and occupied by him as an office during the month of December aforesaid, on the premises occupied by her during said month; and further agrees that all commissions realized from the sales be equally divided between the parties hereto, each party having to bear and pay his or her necessary expenses in and about said sales (provided the purchasers therefor shall be good and responsible parties), said commissions to be in lieu of wages; it being expressly agreed and understood that no-partnership shall exist between the said parties in the sale of said of any other goods, and also that no compensation whatsoever shall be paid him for any sales made at any time to Tefft, Weller & Go. and H. MeOrossan & Co., which said last mentioned sales-shall inure to the sole benefit of the said Susan E. Wanamaker.”' January 18, 1888, the plaintiff in' this action, who is the assignee of St. John, brought an action against the defendant herein, alleging the foregoing facts and setting forth the contract of dissolution in full. It was also alleged in that complaint: “III. Said agreement has been violated by the defendant as follows : 1. Defendant has refused constantly to allow said St. John to sell and dispose of, for and on account of said Susan E. Wanamaker, although often requested, the goods, wares and merchandise manufactured by the firms of George Merritt & Co. and Hagedorn & Newman, during the terms of the contract existing between said firms and Wanamaker & Co. for the sale and consignment of the goods of those firms to Wanamaker & Co.”

“ 2. Befused though requested to divide with said St. John, in lieu of wages, the commissions realized on the sale of goods of George Merritt & Co., and Hagedorn & Newman, although large commissions were realized.” The plaintiff demanded a judgment, for $2,000. >

> The defendant answered that St. John violated his agreement by refusing to sell the goods manufactured by George Merritt & Co., but disposed of such goods on his own account, in violation of the agreement, as sole agent for Merritt & Co. The defendant also alleged that St. John, during the month of December, 1886, refused to sell goods on account of the defendant though requested so to do. This action was brought to trial at a circuit. The-charge is made part of the evidence of this case by the agreement of counsel. In the charge the learned trial judge instructed the jury that “St. John says that Wanamaker, during the year 1887, sold a large amount of goods for Merritt & Co. and a considerable ■amount for Iiagedorn & Newman, under these contracts mentioned in the agreement, and that he is entitled to his half of the commission called for in the agreement.” * * * He also charged that “ one-half of the commission^ on these sales amounted to $1,429, and that the plaintiff was entitled to recover that sum on account of the commissions if he proved that the defendant sold an amount of goods producing those commissions and that St. .John performed the contract on his part." The jury was further instructed that “ the defense to this claim is two-fold; first, that St. John has not performed his agreement, that instead of using his best endeavors as he was bound to do to sell the goods of these two houses, he was endeavoring to induce Merritt & Co. to take away this contract from Wanamaker and give it to him.” * * u j£ yOU are satisfied that he did it, I say to you that that would preclude his recovery.” The learned judge then proceeded to consider the claim of the plaintiff for services rendered by St. John in the month of December, 1886. After referring to the facts he instructed the jury: “ You may come to three conclusions : First, That St. John did not acquiesce in the termination of the Merritt contract, that he has performed his part and is entitled, if that is true, to $1,429. Second, You may come to the conclusion that the contract was terminated, that he acquiesced in it; in which case he cannot recover anything. Or you can come to the conclusion that he has performed his contract so far as it relates to the month of December. In that case he would be entitled to recover half of the commissions of Hagedorn & Newman, $179. You may rende^ a verdict for $179 and $1.429, or a verdict for the defendant.”

The jury returned a verdict for $179. From the pleadings, the charge and the verdict it clearly appears that the jury must have found that St. John failed to perform his contract with the defendant in regard to sales made under Merritt & Co.’s contract and the contract of Iiagedorn & Newman. The case at bar was begun in April, 1889. It sets forth the contract of dissolution and alleges that St. John duly performed all of the obligations resting upon him under said contract and that the defendant has failed to perform said contract or to account for and divide with St. John the commissions earned from the sales of goods made by her and demands an accounting of the commissions arising from the sales. The defendant denies that St. John performed his part of the contract and avers that he entirely failed to do so. She also sots up that June 13, 1888, the plaintiff in this action recovered a judgment against the defendant for $281 damages and costs for an alleged violation by the defendant of the contract set out in the •complaint, which judgment was duly entered in the office of the clerk of the county of Kings and that the same has been paid.' The judgment roll in the former action was introduced in evidence without objection, but the court held that it was not a bar to the present action. In the first action the plaintiff sought to recover commissions earned up to the date when it was begun, January 18, 1888. There is no allegation in the complaint in this action, nor is there any proof that these contracts tinder which St John claims commission continued beyond the time when the first-action was begun. At the general term it was held that the answer was bad because it did not set up that the two actions were; identical. This fact was shown by the former judgment which, was put in evidence by consent. It appears from this record that the contract sued on in this action was sued upon in the former one, and that in the former one the plaintiff sought to recover damages for a breach of it by the defendant. But it was held by the jury, that the defendant had committed no breach, but that, the plaintiff had and was not entitled to recover for any services, rendered except those performed in the month of December. That judgment is a verity and conclusively establishes this fact and the plaintiff has no right to relitigate the same question in this action.

The order should be reversed and the complaint dismissed, with, costs.

All concur.