author: Learned, P. J.:

text:
    J. P. GIRAUD FOSTER and others, Trustees, etc., of THE LONDON ASSURANCE COMPANY, Appellants, v. JACOB H. VAN REED and others, Respondents.

      Mortgagee — insmaMe int&rest of — right of insurer to subrogation.

    The owner of a mortgage for $6,500, upon default of the mortgagor to insure the property covered thereby, procured, in accordance with the provision of the mortgage, a policy for $4,000 to be issued by an insurance company “ on her interest as mortgagee,” the policy providing “ that in case of loss the assured shall assign to this company an interest in said mortgage equal to the amount of loss paid.” By the terms of the mortgage, any premiums paid by the mortgagee were to be repaid by the mortgagor, and secured by the mortgage. A fire having'occurred, the company paid the mortgagee the amount due on the mortgage, including the amount of the premium paid to it on the issuing of the policy, took an assignment thereof, and brought this action to foreclose the same. Reid (1), that the rights of the parties were not affected by the fact that the company, instead of paying the loss, took an assignment of the mortgage ; (2), that the insurance was of the property covered by the mortgage, and not of the debt secured thereby; (8), that the amount of the insurance should be applied upon the .mortgage, first upon the interest, and then upon the principal; (4), that the company, by the assignment, became the owner of the balance due on the mortgage after such payment, and that as nothing was payable thereon at the time of the bringing of this action, it could not be maintained.
    A simple contract creditor has no insurable interest in the real estate of his debtor.
    Fire insurance companies, in this State, have no authority to ^insure a debt, or to guarantee its payment.

      Ecxelsior Fire Ins. Co. v. Royal Ins. Co. (55 N. Y., 843) followed.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

      John 2V. Whiting, for the appellants.
    The general principles governing the cases involving the rights of mortgagor and mortgagee are: If there is an insurance of the building by the mortgagor, loss payable to mortgagee, the insurer cannot claim subrogation. If there is an insurance of the building by the mortgagee, no such right exists as against the mortgagor. But where there is a distinct, independent _ and original contract or condition made by the insurer with the mortgagee and inserted in the policy providing for insurance of the mortgagee’s interest and for subrogation, there is no privity between either party to the contract of insurance and the mortgagor. He has no rights or interests in the policy nor any claim upon the fund. These principles have been enunciated by the decisions in this State for thirty years. The whole doctrine is carefully and fully considered in 2 American Leading Cases, 825, 835-839, and cases cited. (Gomegys v. Vasse, 1 Pet-., 193, 215; Randall v. Ooohrane, 1 Ves., 98; Woodruff v. Insurance Go., 2 Dutch., 541, 551, 555, 558; 2 Lead. Cases in Eq. [3d Am. ed.], 232, 376 ; Mercantile Ins. Go. v. Galebs, 20 N. Y., 173; Smith v. Golum. Ins. Go., 5 Harris, 253 ; Kernoohmv v. Ins. Go., 17 N. Y., 428; Ex. Ins. Go. v. Royal Ins. Go., 55 id., 343; 2 Pars. Maritime Law, 80-84, and notes; Angelí on Ins., § 59; Flanders on Ins., 360.)

      Wm. Henry Arnoux, for the respondents.
    Under tbe laws of the State of New Fork an insurance corporation has no power to guarantee the payment or collection of a debt. Its power is limited to insuring against such loss'or damage as happens by fire. (Excelsior Fire Ins. Go. v. Royal Ins. Go. of Liverpool, 55 N. Y., 343.) The State of New York being the place of inception and performance of this contract, the plaintiffs herein are subject to and bound by the laws of this State. (Herman on Estop., § 568 ; People v. Gent. R. R. Go., 48 Barb., 418; Bank of Augusta v. Earle, 13 Pet., 521.) The contract being an insurance of the property and not of the debt, the payment by the plaintiff to the mortgagee of the sum insured, instantly extinguished the debt pro tanto, and the assignment assigned only the balance due on account of the principal, and did not revive the debt extinguished, or confer upon the plaintiffs any right of subrogation in respect thereto. (Glinion v. The Hope Ins. Go., 45 N. Y., 467; Kernoehan v. U. 7. Bow. Fire Ins. Go., 17 id., 428; Ins. Go. v. Gpdegraff, 21 Penn. St., 513; Springfield Ins. Go. v. Allen, 43-N. Y., 393; Wood v. Worth-western Ins. Go., 46 id., 421; Buff. Fire Ins. Go. v. Boyden, 9 Al., 123,‘ Brantford v. Green Ins. Go., 8 Abb., 264; Lawrence v. St. Mark’s Fire Ins. Go., 43 Barb., 479; Shoinoell v. Jeff. Ins. Go., 5 Bosw., 262; Benjamin v. Saratoga Go. Mut. Fire Ins. Go., 17 N. Y., 415 ; Gromwell v. Brooklyn Fire Ins. Go., 44 id., 47; Flanders on Ins. [1871], p. 367; Holbrook v. Am. Ins. Go., 1 Curtis, 193.) In any event, as the contract of insuránce does not provide that the bond should be assigned as well as the mortgage, the mortgagee could not be compelled to transfer the bond under that contract, and therefore, so far as the bondsman is concerned, the payment to the mortgagee must be held to be in liquidation of the bond, and the assignment of the bond to the company was a voluntary act of the mortgagee, the legal effect of which was to be determined under the insurance law above cited. (Cooper v. Ffew-land, 17 Abb. Pr., 342.) A mortgage is only an incident to the debt it was given to secure and cannot be separated therefrom, and a transfer of the mortgage without the debt is a nullity. {Merritt v. Bartholiek, 36. N. Y., 44; Martin v. Mowlin, 2 Burr., 969 ; Green v. Hart, 1 Johns., 580 ; Jaekson v. Blodget, 5 Cow., 202; Jaekson v. Bronson, 19 Johns., 325 ; Wilson v. Troup, 2 Cow., 231; Cooper v. King, 17 Abb., 342; 4 Johns., 41; 5 Johns. Ch., 570; 9 Wend., 80.)

      J. Smith, for the respondent Adams.
   Learned, P. J.:

This is an action to foreclose a mortgage, given by Jacob EL Van Reed to Philo Plank, which was assigned by Mrs. Anna Plank, executrix of Philo Plank, to the plaintiffs, who are the trustees of the London Assurance Corporation. The mortgage contained the usual covenant for insurance on the part of the mortgagor, and an agreement that, in default thereof, the mortgagee, or his representatives, might make such insurance, and that the mortgagor would pay the premium on demand, and that the same should be deemed secured by the mortgage. The mortgage was for $6,500, payable May 1st, 1875, with semi-annual interest.

In April, 1874, Mrs. Plank, then the owner of the mortgage, took out a policy of insurance in the London Assurance Company against loss by fire to the amount of $4,000, “ on her interest, as mortgagee,” in the buildings on the mortgaged premises. The policy contains this clause : In case of loss the assured shall assign to this company an interest in said mortgage, equal to the amount of loss paid.” Subsequently, in May 1874, the property was injured by fire to an extent exceeding the amount insured, and a claim for the loss was inade upon the company. Afterward, in June5 1874, the company, with knowledge of the fire, paid to Mrs. Plank, the holder of the mortgage, $7,044, being the amount of principal and interest, and including $20 paid by' her for insurance, and took from her an assignment of the mortgage. It appeared that Mrs. Plank, after taking out this insurance, and before the fire, had called upon one Adams, then the owner of the land subject to the mortgage, and had demanded the repayment to her of the money paid by her for insurance, and had threatened a foreclosure in default thereof. The mortgage contains the usual covenant that, in case of default in the payment of interest for twenty days, the whole principal shall become due, at the option of the mortgagee or his representatives.

The Special Term on trial, held that, to the extent of $4,000, the payment by the company to Mrs. Plank, operated as a payment upon the mortgage; that the plaintiffs became owners of the balance secured by the mortgage; that such payment was to be applied first upon the interest; and that, therefore, nothing was-payable at the commencement of this action; and the complaint was dismissed.

It cannot affect the rights of the parties, that the plaintiffs, instead of paying the loss, took an assignment of the mortgage. They were liable to pay the amount of the loss, and could gain no advantage by the mere form of the transaction.

It is insisted, on the part of the plaintiffs, that the present case differs from many of a somewhat similar character, which may be found in the books, in these respects : First, that the assurance is of the mortgagee’s interest; second, that there is an agreement for sub-rogation. But it is well pointed out in Excelsior Fire Ins. Co. v. Royal Ins. Co. (55 N. Y., 343), that insurance companies in this State have no authority to insure a debt, or to guarantee its payment. Their authority is only to insure property against loss by fire. The same thing appears by the charter of the plaintiffs which authorizes them to insure buildings or merchandise, but gives no authority to insure, or guaranty, debts. Whatever, then, may be the language used in the policy, the real meaning is that the company insures the property, and the mention of the insured, as mortgagee, is intended as a statement of the manner in which the insured is interested in the property. It certainly would not be claimed that a mere simple contract creditor could obtain a valid insurance of his debt from a fire insurance company. The creditor must have an interest in the real estate to authorize him to insure.

Furthermore, in the present case there was an agreement between the mortgagor and mortgagee that the mortgagor should insure the property, and that, in ease of his failure so to do, the mortgagee might insure; and the mortgagor should repay the premiums, which should also be secured by the mortgage. The insurance effected by Mrs. Plank, was therefore under this authority. The mortgagor was liable personally to her for the premium, and the premium was secured on the land. Even when the plaintiffs took an assignment of the mortgage, they paid to Mrs. Plank the $20 premium. And this could have been done only on the ground that she had a claim on the mortgagor therefor, or that she was secured by the mortgage for this amount. The mortgagor, then, being liable for the premium, is entitled to the benefit of the insurance.

The claim made by the plaintiffs is opposed to the idea of insurance. This is, that, for certain money paid, the company shall bear the loss in ease of fire. To illustrate : Suppose the owner of property should insure it with the plaintiffs, by a policy which should contain a clause that, in case of loss, the owner should convey to the company an interest in the property equal to the amount of the loss paid. The absurdity of such a contract would be apparent. But the same absurdity exists in this present policy as construed by the plaintiffs. . They claim the right to take the premiums, and to undertake no risk whatever, if the land and the mortgagor together are good for the mortgage debt.

Again, suppose that the plaintiffs should take the privilege (often found in policies) of repairing a partial injury. Such repairs would plainly become a part of the original property, and would thus inure to the benefit of the mortgagor as well as of the mortgagee. The respective rights of the mortgagor and mortgagee would remain unaffected, and the insurance company would have made good the injury by repairing the buildings.

We may properly look upon the money, payable on a loss, as taking the place of the destroyed property. Instead of the buildings, the insurance company places the $4,000. This money is received by the mortgagee and so far pays the debt.

On the question of application, Mrs. Plank had not claimed the privilege that the whole money secured should be payable. The whole was not, therefore, payable. The money paid to her was not by her specifically applied. Under the ordinary rules, therefore, it was applied by the court, and applied properly.

The judgment should be affirmed.

Present — LearNed, P. J., BoardmaN and Jambs, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Leaened, P. J.:

license: Public Domain

text:
    ALVAH F. CROSBY, Respondent, v. EDWARD G. CRAFTS and others, Appellants.

      Principal a/nd mret/y — security gimen by principal to secure surety — right of creditor to enforce, though surety is discha/rged.

      Security — e. g., a confession of judgment — given toy the principal debtor to his surety, constitutes a quasi trust fund for the payment of the debt. When two persons hear to each other the relation of principal and surety, and to third parties that of joint debtors, and the surety’s estate is discharged from liability for the debt by his decease, a judgment confessed toy his principal to the surety remains a valid lien and security for the full amount of the creditor’s claim.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee, in an action brought to set aside a judgment, on the ground that it was confessed to hinder, delay and defraud creditors, etc. The referee found that on December 5, 1865, the defendant Edward G. Crafts, through Lewis Seymour, his agent, made a loan of $600, in money of one Moses La Grange, for his own exclusive use, and as a security therefor made and delivered with one Ammi Doubleday, a promissory note in the words and figures following, viz.:
    $600. Binghamton, <¡)ecember 5, 1865.
    One day after date, for value received, I promise to pay to the order of Moses La Grange, six hundred dollars.
    E. G. CRAFTS.
    {^stompscaMeifr] A. DOUBLEDAY, as surety.

    That on the 3d day of February, 1866, the said Edward G. Crafts, through his said agent, made another and further loan of $1,600, in money of the said La Grange, for his own exclusive use, and as a security therefor made and delivered a promissory note, signed by himself and the said Ammi Doubleday, in the words and figures following, viz.:
    $1,600. Binghamton, Februa/ry 3, 1866.
    Due Moses La Grange sixteen hundred dollars at the First National Bank of Binghamton.
    E. G. CRAFTS. ■
    80 cents in Int. Rev. stamps canceled. A. DOUBLEDAY, as surety.

      That Ammi Doubleday executed both of said notes as surety, and at the request and for the accommodation of said Crafts, and for no other purpose or consideration, and there was justly due upon them, December 26, 1866, $2,344.93.
    That on December 27,1866, a judgment by confession was entered in favor of Doubleday against said Crafts for $2,344.93, to secure the former against his liability arising from the execution of the notes above mentioned. The confession of judgment, through a mistake of the parties, recited that the notes for securing Doubleday, against the payment of which the judgment was confessed, had been made payable to David Morgan.
    On September 27, 1866, one Hoadley recovered judgment for $2,202.74 against Edward G. Crafts, which' judgment was, on May 1st, 1870, assignéd .to the plaintiff in this action, who also held, through assignment, a mortgage given April 28, 1865, by Edward G. Crafts and others on certain real estate, on the foreclosure of which mortgage there was a surplus of $3,573, which was, by order of the court, paid over to the defendant Matthews, as county treasurer of Broome county. Edward G. Crafts held the title to the property at the time of the foreclosure.
    On November 3d, 1870, an execution was issued on the judgment recovered by IToadley against Crafts, and was returned unsatisfied.
    On July 23,1867;^.mmi Doubleday died, and Robert D. Doubleday, who was appointed his executor, for a valuable consideration sold the judgment above mentioned, confessed to Ammi Doubleday by Crafts, to Susan P. D. Crafts, upon receiving indemnity against all claims, etc., against the estate.
    The interest on both notes to February 1, 1867, and $200 of the principal on the $600 note, were paid in March, 1868, and thereafter the residue remaining due on both said notes was paid in full. All payments made after March, 1868, were made for and by the procurement of Susan P. D. Crafts, who was one of the children and heirs at law of Ammi Doubleday.
    On March 10, 1870, the defendant Susan P. D.' Crafts made an assignment to William Harris, as collateral security to a mortgage, of the judgment confessed by Edward G. Crafts. At the time of the death of Ammi Doubleday, and up to the time of the referee’s report, Edward G. Crafts was insolvent.

      As conclusions of law, the referee found that the liability of Edward G. Crafts and Ammi Doubleday on the $1,600 note was a joint liability, and that on the death of Ammi Doubleday his estate was discharged from all liability therefor. That the judgment confessed to Doubleday by Crafts, by Doubleday’s executor assigned to Susan P. D. Crafts, and by her to the defendant Harris, was a valid and subsisting lien to the amount of the $600 note and the costs included in the judgment, which sum, with interest, at the date of the report, amounted to $876.23, and that plaintiff was entitled to judgment, declaring the said judgment, so confessed, to be void and of no effect, except as to the sum of $876.23.

      Edward K. Olarlc, for the appellants.

      Reuben H. Root, for the respondent.
   Leaened, P. J.:

It is not disputed that Doubleday was, in fact, surety for Crafts on the due bill of $1,600, or that the confession of judgment was given by Crafts to Doubleday, among other things, to secure him against his liability on this note. La Grange was the creditor who held the note. And the referee has found that it was by a mistake of the parties that the confession was given to David Morgan, to whom the parties thought the due bill was payable, and that this mistake does not vitiate the judgment.

We have then the case of creditor, principal and surety, where the principal has given the surety a security against his liability. In such a.case the principal, by a well settled and most just rule of equity, is entitled to the benefit of the security. (Vail v. Foster, 4 N. Y., 312; Pratt v. Adams, 7 Paige, 627; Ten Eyck v. Holmes, 3 Sandf. Ch., 428; Curtis v. Tyler, 9 Paige, 432.)

But it may be said that the confession-of judgment was only to reimburse Doubleday, in case he should pay the debt, and that as he and his estate were discharged by his death from liability on the joint obligation of himself and Crafts, the judgment had, after that time, no validity as to the due bill of $1;600. Admitting, for the purpose of the argument, that Doubleday was a joint debtor with Crafts, and that, as Crafts survived him, his estate was not liable, still this admission does not affect the equitable principle above stated.

The ground of that principle is, that the security given by the principal debtor to the surety is a quasi trust fund for the payment of the debt; that the principal debtor has appropriated it for the security of the debt, and that the creditor has an equitable right to have it thus applied. (Vail v. Foster, ut supra.) That case illustrates this view. The surety had become insolvent. But he held a bond and mortgage, executed by the principal debtor to indemnify him for his liability. As he was insolvent and could not pay, he could not practically be damnified by reason of his debt. And as to him the creditor was in the same condition as if the surety had been discharged by death, instead of insolvency. But although the creditor could not, in fact, collect any thing out of the surety, and although for this reason the surety had never been damnified by his obligation, yet it was held that the creditor was entitled to have the benefit of the securities which had been executed to the surety for his indemnity.

Now, in the present case, Crafts, the principal debtor, was insolvent; Doubleday the surety.had died; and thereby, as it is claimed, his estate was discharged from this alleged joint obligation; but La Grange, the creditor, had an equitable right, in order to collect his debt, to enforce this judgment confessed to Doubleday. Of course it would follow that any one, other than Crafts, the principal debtor, might pay the debt to La Grange and take an assignment of it, which would carry the equitable right to the judgment confessed to Doubleday. And such person then might require Doubleday’s executors to assign that judgment to him, and might enforce it. This is what Susan P. D. Crafts practically did. She took an assignment of the judgment from Doubleday’s executors, and agreed to indemnify his estate from liability on this claim, and on others similar. Subsequently she paid the note to La Grange. Now, if Doubleday’s estate was legally liable for this note, then, of course, there is no doubt that the judgment confessed is still valid for the amount thereof. But if, as the plaintiff claims, Doubleday’s estate was not liable, then Susan P. D. Crafts was not liable, in any way, on the note, even as one of the heirs of Doubleday. Her payment of the note to La Grange, therefore, entitled her to have from him the equitable right which he had in the judgment confessed, and thereby to require the executors of Doubleday to assign the judgment to her. This they had already done, and this assignment inured to her benefit when she paid the debt to La Grange. Or, to state this in another way, after the judgment had been assigned to Susan P. D. Crafts, could not La Grange have asserted against her his equitable right to collect his debt by means of this judgment.? If she had thus been required to pay the debt in order to retain the judgment, she would have been plainly entitled to enforce the judgment, which had been specifically appropriated to the payment of the debt. (See Mathews v. Aikin, 1 N. Y., 595.)

The equitable principle may be illustrated in another way. Suppose Crafts had confessed a judgment to La Grange to secure this note. Then, undoubtedly, La Grange could have enforced the judgment, whether or not Doubleday’s estate was discharged by his death. If Susan P. D. Crafts, not being the debtor, had paid La Grange the debt, he could have assigned the judgment to her, and she would have held it. Now, where security is placed by the principal debtor in the hands of the surety or in the hands of the creditor, it is, in equity, treated as security for the debt. The equitable rights of the parties therein are administered upon the doctrine that it is a fund which has been appropriated by the principal, and is to be applied to the payment of the creditor and the discharge of the surety. Nor can it be claimed justly that Susan P. D. Crafts was a mere volunteer. She paid in consideration of the assignment of the judgment to her. She thus obtained the legal title to the security from the executors of Doubleday, and obtained the equitable title by taking up the note. Where the nature of the whole transaction is so plain, it is immaterial which she procured first, the legal or the equitable title to the judgment. Her assignment to Harris, therefore, gave him title to the judgment to its full extent, except the interest on the notes to February 1, 1867, paid by Crafts himself.

The judgment, therefore, should be reversed, and judgment should be rendered for the defendants, with costs.

Present — Leagued, P. J., Boardmau and James, JJ.

Judgment reversed, and judgment rendered for defendants, with costs.


author: LEARNED, P. J. :

text:
    BELLE DUBOIS, Respondent, v. MARCUS MILLER, Appellant.

      Oivil damage act — Evidence as to sale of liquor before passage of act — knowledge of intemperate habits— Exemplary damages:

    In an action brought under chapter 64.6 of the Laws of 1873 (civil damage act), by a wife for damages (the deprivation of her means of support, alleged to have resulted from her husband’s intoxication), the admission of evidence of sales of liquor made to the plaintiff’s husband prior to the passage of the act, is improper.
    Such error is not cured by the court’s charging the jury that they could not find any damages for any thing that occurred prior to the passage of the act, as, while the intoxication which caused the damage might have occurred after, the liquor might have been furnished before such passage.
    Whether knowledge of the habits of plaintiff's husband would authorize the giving of exemplary damages, quaere.

    Appeal by defendant from an, order .denying a new trial, and also from a judgment in favor of the plaintiff for $280.0T, entered on the verdict of a jury in the 'Chemung County Court, on an appeal by defendant from” a judgment of a justice of the peace.
    This action was brought to recover damages from the defendant for injury to the plaintiff in her means of support, in consequence of the intoxication of John Dubois, her husband, produced in whole or part by intoxicating liquors sold to him by the defendant.

      Gabriel L. Smith, for the appellant.
    No right of action is given by the act, against one holding a license at the time of its passage. {Balter v. Pope, 5 N. T. S. C. [T. & C.], 102.) It is not- claimed that the legislature had not power to make this law applicable to existing licenses, but that it did not exercise such power. It is elementary law, that no recovery can be had against one who is not bound by his contract, or liable for a wrong (3 Bonvier’s Institutes, 133); and the seller, licensed when the law was passed, has violated no contract, and is- guilty of no wrong. This statute, penal in its nature, is to be construed in the light of well established principles governing the construction of such statutes, which are that they shall be strictly construed, that they shall not be extended to cases not expressly within their meaning, and that a party shall not be brought within the penalty by implication. It was error to allow evidence of sales of liquor to plaintiff’s husband, by defendant, prior to the passage of the act of the legislature on which her right of action is founded. (Sackett v. Andross, 5 Hill, 334; Palmer v. Oonly, 4 Denio,- 314; affirmed, 2 Oomst., 182; McMannis v. Butler, 49 Barb., 176; Prot. JEp. School Matter, 58 id., 164; Jarvis v. Jarvis, 3 Edw. Oh., 462.) The evidence to show that defendant knew of the habits of Dubois immediately prior to the passage of this act, was not competent. Knowledge by defendant of the habits of Dubois is of no consequence as bearing on the right of action under the act. The law requires no knowledge on the part of the seller to create the right of action.

      Smithy Robertson é¡ Bassett, for the respondent.
    It was competent for plaintiff to prove that she had no means of support but from the. labor of her husband, to show that she was injured. (Schneider v. Rosier, 21 Ohio St., 98, cited 5 N. T. S. O. [T. &' 0.], 104, note.) As to the point that the law is unconstitutional, see Baker v. Pope (5 N. T. S. 0. [T. & 0.], 102). ‘ '
   LEARNED, P. J. :

On the argument of this appeal no discussion was had on two important questions: First, the constitutionality of the “ civil damage act; ” second, the right of a wife to recover damages for the diminution of her husband’s property or wages through drunkenness. The former was passed on by the court in Baker v. Pope (9 S. C., 556). The latter has not been decided by this court so far as I know. The case of Hayes v. Phelan (11 S. C., 733) only decided (James, J., dissenting) that damages resulting from death of the intoxicated person cannot be recovered under this act.

The first question made on the argument- is, whether a right of action is ¿iven by that act against one holding a license at the time of its passage % It would seem to follow from' the decision above cited, that it is competent for the legislature to make a man, who has done no unlawful act, liable in damages for acts done by another who is in no way his agent. It would, therefore, seem to be of little consequence whether the lawfulness of his act arose from his possession of a license or otherwise. No license is necessary to authorize a man to give away liquor. But, under the act, the giver is liable. No license is necessary for letting a building, and no law prohibits letting a building with knowledge that liquor is to be sold therein. But one who does this is liable. The statute, therefore, by its terms, makes persons who are doing lawful acts liable for the acts or omissions of others. And the licensee is in no better position than any one else. If the giver of liquor is liable for the act of the drinker, there is no reason why the seller, under a license, should not be made equally liable. The counsel urges ■ that it is elementary law, that no recovery can be had against one who is not bound by his contract or liable for a wrong. That may • be so. But the case of the licensee is no more a violation of that elementary law than the case of the giver of liquor or of the landlord, both of whom are liable if the law is valid.

The next point made on the appeal is, that it was error to allow evidence of sales of liquor to the plaintiff’s husband by the defendant prior to the passage of the civil damage act. Tlie act was passed May 29, 1873. The plaintiff proved that the defendant gave the plaintiff’s husband liquor “along the first of April.” The defendant’s counsel' moved to strike this out, and excepted to the refusal so to do. In another part of the case also, the defendant’s counsel excepted to any evidence of drinking at the defendant’s prior to. the passage of the law. The same objection was again taken to a question put to a witness as to how many times he had seen the plaintiff’s husband drink at the defendant’s prior to June; and the witness was permitted to testify that he drank at Miller’s the day he moved there, which was in April. It is not easy to see how this evidence was proper. Before the act was passed, the sale of liquor created no liability. Then at least, if not now, it was a lawful act. Nor was the admission of this evidence cured by the charge. (Baird v. Gillett, 47 N. Y., 186.) It is said by the plaintiff’s counsel that this evidence was intended to show the defendant’s knowledge, at times subsequent to the passage of the act, of the habits of the plaintiff’s husband.

Even admitting such evidence to have been proper, that which was admitted went much further. The plaintiff was allowed to prove, not merely'that the defendant had seen the plaintiff’s husband intoxicated, but that he had let him have liquor prior to the passage of the act. It is true that the court charged the jury that they could not find any damages for’any thing that occurred prior to June first. The alleged damages are the loss of wages by means of intoxication. "While, therefore, the intoxication might have occurred after June first, yet the liquor which produced it might have been bought before the passage of the act, for the terms of the act apply as well to him who sells a barrel of liquor to a customer as to him who sells a glass. ■■ So that the jury might have found that the plaintiff’s husband became intoxicated in June on liquor bought by him in April. The plaintiff, therefore, ought not to have been permitted to prove sales of liquor made prior to the passage of the act. The language of the act is in the future, and its construction would necessarily apply only to sales after its passage.

Note. — The following opinion was not received by the reporter in time to enable him. to publiskit with the prevailing opinion. (See 4 I-Inn, 738.) The certified copy of decisions furnished by the clerk did not state that Mr. Justice James dissented, or that Mr. Justice Boardman concurred only in the result arrived at in the decision of Hayes v. Phelan, and as it appeared thereby only that these justices were present, that is all that appears in the report of the case. — [Rep.

It is not necessary to examine the question, whether knowledge of the habits of plaintiff’s husband would authorize exemplary damages.

For this improper admission of evidence there should- be a new trial, costs to abide the event.

Present — Leaeubd, P. J., BoabdmaN and Jahes, JJ.

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


author: James, J.

text:
    SARAH M. HAYES, Respondent, v. MICHAEL PHELAN, Appellant.
    This is an appeal from an order overruling a demurrer to the complaint iu this action. Eor opinion of Justice Learned in this case, see 4 Hun, 783.

      A. Sehoonmalcer, Jr., for the appellant.

      M. Sehoonmaker, for the respondent.
   James, J.

(dissenting):

This was an action brought under chapter 646 of the Laws of 1873, known as the civil damage act, The complaint averred that the plaintiff was the wife of Andrew B. Hayes, now deceased, previous to and at the time oí his death.; that said Hayes was an industrious, hard-working man; that plaintiff was of feeble health and entirely dependent upon the labor of the said husband for support and maintenance; that said Hayes died on the night of July 4, 1874, from the effects of intoxication; that said intoxication was caused, in whole or in part,, by'the sale and delivery to him of intoxicating liquor on the evening of July 4,1874, by the defendant, whereby, etc.

The ground of demurrer was that the complaint did not state facts sufficient to constitute a cause of action.

The main question presented is, whether an action can be sustained, under the act of 1873, against- one who sells liquors with which a person becomes intoxicated, and dies in consequence of such intoxication, by one who, by such death, has sustained injury in his or her means of support. If such an action can be sustained, it must be wholly in virtue of the statute; it would not lie at common law. The language of the act of 1873 is broad enough to cover such a case. It says: “ Every husband, wife, child, parent, guardian, employer or other person, who shall he' injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her name, against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person,” etc.

For the purposes of this adjudication, the demurrer admits the truth of the allegations of the complaint. In substance the complaint alleges, that on the night of July 4,1874, Andrew B. Hayes died from intoxication; that such intoxication was caused by liquors sold to him by defendant; that at the time, said Hayes was the husband of the plaintiff; that she was of feeble health, entirely • dependent on her husband’s daily labor for support and maintenance; that he was an industrious, hard-working man, and that by his death she had been inj ured in her means of support. This complaint contained all the averments necessary to constitute a cause of action under the aforesaid statute : the death, its cause, its effect or injury to plaintiff, and the defendant’s connection with it. The plaintiff does not sue as wife; a right of action is given to any person injured by reason of the intoxication of any other person, against the person who furnished any of the liquor which produced the intoxication. The averment of being the wife of the deceased was simply to show her dependence on his labor and her right of support from him, and is coupled with an averment of the husband’s ability and willingness to labor to earn such support. The action is not for the killing, but for the injury and loss which resulted to plaintiff’s means of support, caused by the intoxication, followed by the death, of the man hound by law to support and maintain her.

It is important to note the language of the statute and then consider the law as it stood, independent of the statute. The statute says : “Every person who shall be injured in person, or property, or means of support, in consequence of the intoxication of any person.- shall have a right of action against any person who shall, by selling intoxicating liquors, have caused such intoxication,” etc. At common law, in actions for wrongs, a recovery could only be had for injuries to person or property, and hence the legislature, in enacting tile statute of 1878, intended to go beyond tbe common-law rule; they meant to provide a remedy for injuries produced by intoxication, against Mm who, by sale or gift of intoxicating drinks, caused such intoxication; in other words, the legislature meant just what it said: “ Every person who shall be injured in his person or property or means of support, in consequence of the intoxication of any person, shall have a right of action against any person who shall, by selling or giving away intoxicating liquors to such person, have caused such intoxication in whole or in part,” etc. It was urged that this statute should have a strict construction, because penal. Such is the rule — a rule too well settled to be questioned — but there are other rules of construction, equally well established, that have a bearing on this question, viz. : Statutes should be interpreted according to their intent and meaning, such intent to be deduced from the act itself; words should receive their popular or generally understood meaning. Where a statute is expressed in clear and precise terms, where the sense is manifest, there can be no reason against adopting the sense which it then naturally presents; to go elsewhere in search of conjecture in order to restrain or extinguish it, is to elude it.

The legislative purpose of this act is expressed in its title as well as in its every line and paragraph; the necessity of some such law was manifest to every observing and reflective member of the commonwealth. Its declared purpose was to “suppress intemperance, pauperism and crime,” and to that end it sought to make every person who should furnish means to another person to become intoxicated, either by the sale or gift to him of intoxicating liquors, pecuniarily liable for the injuries specified which any other person might sustain by reason of the intoxication so caused.

Therefore, observing the rules of construction above suggested, it seems clear that when death is caused by intoxication, any person sustaining injury from the consequences of such intoxication, either in person or property or means of support, has a right of action against the person furnishing 'the liquor which caused such intoxication. And if this act is within the constitutional power of the legislature, the plaintiff’s cause of action was clearly shown.

So far as this court is concerned, the constitutionality of said act is affirmed. (Baker v. Pope, 9 S. C., 556.)

To entitle the plaintiff to recover, it was not necessary to aver, nor essential to prove, an unlawful selling or giving away of intoxicating liquor. The right of action is not based on an unlawful sale or gift. The right of action given by the statute vests as a consequence of supplying intoxicating liquors to another, followed by intoxication and injury to the plaintiff in person or property or means of support.

The question of damages does not now arise; that will properly come up on the trial.

The order of the Special Term should be affirmed.


author: BoardMAN, J.

text:
    HENRY EVANS, as Executor, etc., Respondent, v. DANIEL B. POST and another, Appellants.

      Evidence — record in swnmairy proceedings.

    In an action brought to recover rent for the use of certain premises from which the defendant had been removed by summary proceedings instituted by the plaintiff in pursuance of a notice terminating the tenancy, held, that the record in these proceedings was only evidence that the defendant had ceased to have any right to continue in the possession, and that the plaintiff was entitled to such possession. The proceedings and the affidavits and evidence contained in such record were not legal evidence of the lease, or of the length of occupancy of the premises, or of the terms under which they were occupied.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      Alex. Cummings, for appellants. T. & A. More, for respondent.
   Opinion by

BoardMAN, J.

Present — Learned, P. J., BoardMAN and .Tames, JJ.

Judgment reversed and new trial granted, costs to abide event, and referee discharged.


author: LeabNEd, P. J.

text:
    MAHLON H. MANDEVILLE, Respondent, v. SCHUYLER C. REYNOLDS, Appellant.

      Satisfaction of judgment — when may he attached — Power of attorney to cornr promise action.

    In an action brought upon a judgment in which the defendant claims that it has been satisfied by a satisfaction-piece executed by an assignee thereof, and also by an execution issued to the sheriff, the validity of such satisfaction-piece and execution may be impeached; and it may be shown that they are fraudulent, and that such judgment has not been paid or released; the question as to their validity arising directly and not collaterally, in such action.

      Unless specially authorized so to do, an. attorney cannot compromise an action upon payment of his costs, without the knowledge and consent of his principal.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order' denying a motion for a new trial on a ease and exceptions.

      J. McGuire, for appellant. Marcus Lyon, for respondent.
   Opinion by

LeabNEd, P. J.

Present — Learsted, P. J., BoardmaN and James, JJ.

Judgment and order affirmed, with costs.


author: Boardman, J.

text:
    AMASA JONES, Appellant, v. NELSON OWEN, Respondent.

      Ch’oss appeals from Justice’s Gourt — how liern’d.

    When both parties appeal from a judgment of the Justice’s Court, the plaintiff on the ground that the damages awarded by the juyy were too small, and the defendant on the ground that it charged him with any damages, both appeals should be heard together and judgment and costs given for the appellant showing himself in the right upon his appeal. It is error to have the appeals heard separately and to have separate judgments entered thereon. (G-lassner v. Wheaton, 2 E. D. Smith, 352.)
    Appeal from a judgment of tbe Cortland County Court, reversing a judgment of a Justice’s Court in favor of tbe plaintiff, with costs of tbe appeal.
    On cross appeals from a judgment of tbe Justice’s Court, separately heard in tbe County Court, Jones reversed on bis appeal the justice’s judgment and recovered costs of the appeal against Owen, and Owen on bis appeal also reversed the same judgment and recovered his costs of appeal against Jones.
    Tbe ease came before the General Term on tbe papers used in tbe County Court on tbe appeal of Owen, and tbe court was thus enabled only to review tbe decision of the County Court reversing the justice’s judgment and giving tbe 'defendant costs of appeal against plaintiff.

      Bouton dh Ohamplin, for appellant. Waters dp Sands, for respondent,
   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and JaMes, JJ.

Judgment of County Court reversed, with costs to the plaintiff, and judgment of justice’s court affirmed.


author: BoardMan, J. »

text:
    FRANCIS STOUT, Respondent, v. GILBERT WOODWARD and another, Appellants.

      Disputed boundary — settlement of— as'biiration.

    Where a 'boundary line between the lands of two persons is disputed, indefinite and uncertain, it is competent for the parties to fix upon and determine such line by parol, and a line so fixed upon will be final and conclusive. (Vosburgh r. Teator, 32 N. Y., 561.)
    It is equally competent for them to authorize another person to determine such line for them as their joint agent or arbitrator, and the determination of the line by their agent, and their assent to such settlement, will bind them the same as if it had been determined by themselves: (Wood v. Lafayette, 46 ÍT. Y., 484.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      8. 0. Keeler, for appellants. Iiurd c& Fletcher, for respondent.
   Opinion by

BoardMan, J. »

Present — Learned, P. J., Boardman and Jakes, JJ.

Judgment and order affirmed, with costs.


text:
    ORCELIA CLARK, Respondent, v. WILLIAM CLARK, Appellant.

      Limited diwree — defense that plaintiff's former husband is still lining — what sufficient allegation of.

    In an action for a limited divorce the defendant, besides denying the complaint, set up as a separate défense that at the time of her alleged marriage with him, “ the plaintiff was a married woman, the wife of one Clement Clark then living, from whom she had never been divorced, but whose lawful wife she then was, which facts were unknown to the defendant,” etc. The plaintiff demurred^ to tlae second defense, claiming that the answer did not affirmatively aver that the former husband had not been finally sentenced to imprisonment for life, citing LindenY. Linden {36 Barb., 61) and Kinnier v. Kinnieo' (45 N. Y., 535). The court (citing Fleming v. The People, 27 ÜST. Y., 329, and Hayes v. People, 3 Park. Crim., 325), held, that it was not necessary to negative the exceptions contained in the statute, and that, furthermore, the answer alleged that the plaintiff at the time of the marriage stood in a valid marital relation to another; that plaintiff could not be the lawful wife of Clement Clark if she had the legal right to marry another man.
    Appeal from an order sustaining a demurrer to tbe defendant’s answer, in an action for a limited divorce.

      H. B. Smith, for appellant. John T. Dmidson, for respondent.
   Opinion by

LeabNEd, P. J.

Present — LeaeNed, P. J., BoaedMAN and James, JJ.

Order reversed, with ten dollars costs and printing disbursements, with leave to renew on- payment of such costs and disbursements.


author: Boaedman, J.

text:
    JOHN R. COGSDILL, Respondent, v. ROBERT BROWN, Appellant.

      Articles exempt from execution— Chapter 134 0/1859 — meaning of word “ team” in.

      A single horse and his harness are a “ team ” within the meaning of section 23 of 3 Revised Statutes (5th ed.), 646, as amended by chapter 134 of 1859, and, as such, entitled to the exemption from execution thereby created. (Wilcox v. Hawley, 31 N. Y., 648; Smith v. Slade, 57 Barb., 637; Lains v. Prosser, 32.id., 290; Lockwood v. Tounglove, 27 id., 505.)
    Even though on the day of the levy the plaintiff had no use for the horse, and did not then know when or how he would next make the horse useful or necessary, it was still exempt from execution, in the discretion of the owner. He had the right to retain the property and find use for it.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. "

      F. A. Durkee, for appellant. S. G. Millard, for respondent.
   Opinion by

Boaedman, J.

Present — Leaened, P. J., Boaedman and James, JJ.

Judgment affirmed, witli costs.


text:
    GEORGE MILLER, Respondent, v. CHARLES A. CHURCH, Impleaded with WILLIAM G. GURNSEY, Appellant.

      JYuiscmce — when notice of, must he given to defendant — damages.
    Where an alleged nuisance was created by the defendant’s grantor, notice to the defendant of the existence of the nuisance, must be shown. (MMler v. Church, 2 1ST. Y. S. 0., 259; Oonhoeton Stone B. v. B., JY. Y. and E. B. B. Oo., 51 N. Y., 573.)
    In such case a recovery cau be had only for damages accruing after the grantee had actual knowledge or notice of the existence of the nuisance.
    Appeal bty defendant from a judgment entered on a verdict for fifteen dollars damages, for injury to the plaintiff’s premises by the overflowing of a mill pond in which the defendant was claimed to have an interest, and also from an order denying a new trial on the ground of insufficient evidence and excessive damages.

      Robert A. Stcmton, for appellant. Edwin A. Kmgsley, for respondent.
   Opinion by

LeabNEd, P. J.

Present — LeaeNED, P. J., BoaedmaN and James, JJ.

Judgment and, order appealed from reversed, and a new trial granted, costs to abide the event.


text:
    ELBERT W. COOK, Plaintiff, v. JOHN DOOLITTLE, Defendant.

      Vendee in contact for sale of land — right of, to cut standing tvmbe/r.

    A purchaser under a contract for the sale of lands, in possession simply by acquiescence, has no right to cut standing timber from the freehold without special license from the vendor, except for repair's of buildings and fences, or the purposes of husbandry. The doctrine laid down in Van Wyck v. Alliger (6 Barb., 507) said to have been repudiated in Vcm Beusen v. Young (29 id., 9).
    Exceptions ordered to be heard in the first instance at the General Term.

      The action was in the nature of trespass, for unlawfully cutting and conveying away standing timber. .

      J. Mg Quire, for plaintiff. M. M. Mead, for-defendant.
   Opinion by

James, J.

Present — Leaened, P. J., BoaedmaN and James, JJ.

New trial granted, costs to abide the event.


author: Learned, P. J.

text:
    JANE WALTERS, Respondent, v. CONTINENTAL INSURANCE COMPANY OF THE CITY OF NEW YORK, Appellant.

      Complaint — when does not unite s&oe/ral causes of action.

    A complaint is not to be deemed to imite several causes of action, simply because it sets forth several grounds on which the defendant might be liable in respect to the same transaction. (.Durant v. G-m'dner, 10 Abb., 445 ; Pnce v. Price, 9 S. 0., 611.)
    Appeal, from an order denying a motion for an order requiring the plaintiff to make her complaint more definite and certain, by stating an alleged cause of action on an insurance policy separately from an alleged cause of action on a special agreement, and separately from an alleged cause of action on an award.
    The complaint, after setting forth in sufficient detail the issuing of a policy by the defendant to the plaintiff, and a loss of the property by fire, and the due making of proofs of loss, further alleges that afterward the defendant negotiated with the plaintiff and agreed to give her $3,800 for her loss and damage, in full settlement; and further, that the plaintiff demanded of the defendant} in pursuance of the requirements of the policy, to have the' loss ascertained by arbitrators; that the defendant refused : that thereupon, on notice to it, she selected arbitrators, who ascertained the damages at $3,800.

      EJw. O. James, for appellant. Shoeoraft, Bennett de Tuttle, for respondent.
   Opinion by

Learned, P. J.

Present — LeáRNed, P. J., Boardiían and BooKes, JJ.

Order of the Special Term affirmed, with ten dollars costs and disbursements of printing.


text:
    TRUMAN RHODES, Plaintiff, v. THE UTICA, ITHACA AND ELMIRA RAILROAD COMPANY, Defendant.

      Railroad company — neglect to maintain fences — when liable for injuries to cattle— when negligence of owner no defense.

    Where a railroad company neglects to maintain fences and cattle-guards along its line, as required by statute, and cattle get upon the track and are injured, the corporation is liable, although the owner is not an adjoining proprietor, and it does not appear how or when the cattle came upon the track. The mere negligence of the owner in permitting his cattle to stray upon the land of another adjoining the railway, or to run at large in the highway which crosses the track, is not a defense to the corporation.

      Corwin v. The Hew York and Erie Railroad Company (13 N. Y., 42) and Bradley v. The Buffalo and Erie R. R. Co. (34 id., 432) followed.
    Exceptions ordered to be heard in first instance- at General Term. The action was brought to recover the value of a horse killed by being run over by a train of cars on the track of defendant’s road. It was tried by a jury and a verdict was rendered for the plaintiff.

      Jerome Howe, for plaintiff. M. Goodrich, for defendant.
   Opinion by

James, J.

Learned, P. J., concurred.

New trial denied, and judgment directed for the plaintiff on the verdict, with costs.


author: BoaedmaN, J.

text:
    MICHAEL STEIGER, Plaintiff, v. THE ERIE RAILWAY COMPANY, Defendant.

      Qom/mon ca/rriw — contract limiting liability — when cornier not liable.

    Motion for a new trial upon exceptions ordered beard at tlie General Term in the first instance. There were two causes of action in the plaintiff’s complaint. Hpon one a verdict of $40.33 was ordered for the plaintiff. The court held that the plaintiff was not entitled to recover for the second cause of action. The plaintiff moved for a new trial on the ground that this last decision was erroneous.
    The cause of action, disallowed by the court, was for damages alleged to have been done to a car load of cattle shipped by plaintiff from Buffalo to Elmira on defendant’s road. At the shipment, in consideration of low freight, plaintiff signed a contract by which he assumed all risk of loss, damage or injury to the animals, in consequence of injury to each other, or from heat, suffocation or crowding, or from delay of transportation or delivery, and released the defendant therefrom. The plaintiff also agreed to load and unload such stock at his own risk, the defendant furnishing laborers to assist. Defendant also gave plaintiff a stock-drover’s pass, in which it was stated that he was in charge of the stock, and conductors of that stock train were directed to pass him on defendant’s road, between Buffalo and Elmira. There were two routes from Attica to Corning, one by way of Avon, and the other by way of Hor-nellsville. The latter was usually the route taken by stock trains. Plaintiff, on inquiry whether he could go to Hornellsville by an express train, and there take the train on which his stock was, and go with it to Elmira, was told he could. The train in which was plaintiff’s stock, was started by way of Hornellsville. By reason of a strike among defendant’s men at Hornellsville, the train was recalled and sent by way of Avon, reaching Elmira some five hours later than it would, if on time, by way of Hornellsville. Plaintiff went to Hornellsville by express train and waited for the stock train until he learned it had gone by way of Avon, when he went to Attica and endeavored, but in vain, to overtake it, getting to Elmira about three p. m. of the day on which the stock arrived at eight a. m. The stock remained upon the train for some time after it reached Elmira, and, by reason of heat, crowding, etc., one animal was so injured as to die soon after removal.from the car. ■Plaintiff claims such loss was due to defendant’s wrongful act in sending the train via Avon, instead of the usual route via Hornells-ville, and to other wrongful and negligent acts of defendant in not giving notice of the arrival of the cattle at Elmira, and in not removing them from the cars, and in the delay.
    The court at General Term held, that “by the law of this State it is settled, that a common carrier may by contract limit his or its liability in respect to the property carried. (Oragin v. N. Y. C. R. R. Go., 51 N. Y., 61; Penn v. Buff, and Erie B. P. Co., 49 id., 204; Dorr v. N. J. Steam. Nm. Co., 11 id., 485.) That the circumstances which had arisen, made it necessary to change the direction of the train, or the defendant would have been responsible for the consequences of the gross neglect of sending this property into great danger. (Johnson v. N. Y. G. R. R. Go., 33 N. Y., 61Q.) That the defendant’s. duty was ended when the cattle were transported to Elmira. The plaintiff was bound to take notice of their delivery there, and to take care of and unload them.
    The plaintiff’s motion for a new trial was therefore denied, with costs against the plaintiff, and judgment ordered upon the verdict.

      S. B. Tomlinson, for plaintiff. G. M. Di/oen, for defendant.
   Opinion by

BoaedmaN, J.

Present — LeaeNed, P. J., BoaedMAN and Jambs, JJ.

New trial denied, and judgment ordered for defendant on the verdict.


author: BoabdmaN, J.

text:
    STEPHEN B. WEEKS, Respondent, v. REUBEN HOYT, Appellant.

      Accord and satisfaction — settlement made by copa/i'tners — when a defense to action for an accounting — Amendment of com/plaint — when not allowed.

    Appeal from a judgment in favor of tbe plaintiffj entered on tbe report of a referee.
    Tbe parties to tbis action entered into partnership in tbe early part of 1871, and dissolved, by mutual consent, in September, 1871, soon after which they settled their company accounts, and tbe plaintiff paid to defendant tbe amount found due upon such settlement. Afterward, plaintiff became satisfied that such settlement was not correct, and applied to defendant for another settlement, which defendant refused; whereupon the plaintiff brought this action. The complaint alleges the partnership and its dissolution, a demand of settlement made by plaintiff of defendant of their accounts, which the defendant neglected and refused, and demands an accounting of and concerning such matters, and for a decree for payment of any balance found due.
    The answer, among other matters, sets up the accounting and settlement between the parties of their copartnership affairs; that the balance due from the plaintiff to the defendant was then agreed upon; that such settlement was full 'and fair, and that thereafter the plaintiff paid to the defendant the balance so settled and agreed upon.
    Upon the trial the foregoing facts appeared. It also appeared that there were errors in such settlement affecting the rights of the parties, and copartnership affairs not included in such settlement were shown upon the trial.
    The individual accounts of the partners were, to some extent, adjusted in their settlement of copartnership affairs. The referee, however, rejected such individual accounts, thus affecting very much the settlement made.
    The General Term held, that as the plaintiff did not deny the settlement, as alleged and proved by defendant, and did not allege such errors as would obviate it, such settlement was a good defense, and the plaintiff could not recover under his complaint; that even though the settlement was, in some respects, erroneous, it could not be disregarded, under the pleadings; nor could the judgment upon the referee’s report stand, because the case and his findings showed a settlement forbidding such general accounting as the referee had given to the parties; that the plaintiff could -only recover according to the allegations of his complaint; and that an amendment, such as would be necessary to retain jurisdiction, would be. too sweeping and radical to be allowed at this stage of the litigation.

      Alex. Gumming, for appellant. A. G. Moses and I. T. Free-mem, for respondent.
   Opinion by

BoabdmaN, J.

Present — LbaRned, P. J., Boardman and James, JJ.

Judgment reversed and a new trial granted, costs to abide event, and the referee discharged.


text:
    LEVI M. HULTSLANDER, Respondent, v. JOHN A. THOMPSON and another, Executors, etc., of LEVI HULTSLANDER, Deceased, Appellants.

      Statute of limitations — claims against estate of deceased, referred v/nder the statute— when hcvrred— Gode, §§ 95. 102.
    Appeal from a judgment entered on the report of a referee, agreed upon under the statute.
    The defendants are executors of the will of Levi Hultslander, deceased. The plaintiff presented to said executors a claim against the estate, which was disputed. Ey consent the claim was referred. The consent was dated July 30, 1872 ; the referee was agreed*upon August 6, 1872, and the consent and agreement filed, and the order of reference entered, January 30, 1874.
    The claim against the estate consisted of a number of items, but the re'feree only allowed the following of the dates as specified: 1863, November, one pair of shoes and two bushels of -timothy seed, $14.05 ; 1864, January nineteen, one buffalo robe, five dollars, and forty weeks board at three dollars per week; 1867, November fifteen, one pig, three dollars, making a total of $142.05; for which sum, with interest, the referee reported in favor of the claimant. The referee further reported that all claims of a date prior to November 24, 1863, were rejected,'as barred by the statute of limitations.
    This appeal was taken on the ground that the claims allowed were also barred. The court held, that, in a proceeding of this kind the reference- stands in the place of an action, and the entry of the order to refer must be deemed to be the commencement of the action, for the purpose of determining whether the action has been brought within the time limited by statute. (Buchlin v. Chapin, 1 Lans., 443, 449; Reynolds v. Collins, 3 Hill, 37; Com-stock v. Olmstead, 6 How. Pr., 77.) That all the causes of action allowed by the referee, but one for three dollars, accrued previous to January 20, 1864. The defendant died February 12, 1869, eleven months and eight days before the six years limitation expired. That if eighteen months should be added to the six years, the limitation would expire July 20, 1871; so that in whatever way the statutory extension of time might be computed and applied, it would not save this case from the statute of limitations. That the claims were not saved from the application of the statute of limitations by the provisions of section 102 of the Code, the action not having been commenced within the time limited, nor within one year next after letters testamentary were filed. That the item of three dollars allowed by the referee as accruing November 15, 1867, was •not barred, and was therefore properly allowed. That this item was for a single article, separated by a period of nearly four years from any other item, and those other charges were not of the character of accounts contemplated by section 95 of the Code'.

      Benyamm Low, for appellants. Croo & Wiggins, for respondent.
   Opinion by

James, J.

Present — LeaeNed, P. J., BoaedmaN and James, JJ.

Judgment modified by reducing the amount of damages to $4.65, with costs of the action and of the appeal to the defendants. '


text:
    MICHAEL QUINN, Respondent, v. WARRING S. WEED, and another, Appellants.

      Power of Qemwal Tei'm to review findings of jwy on trial in County Court of action commenced in Justice's Cowl — Breach of warranty — when action lies for.

    This action originated in a Justice’s Court, where the plaintiff had a judgment. It was appealed to the Sullivan County Court, where the action was retried before the court and jury, and a verdict rendered for the plaintiff. After verdict a case was made, upon which the defendants moved before the County Court for a new trial, which was denied. Judgment having been entered on the verdict, the defendants brought an appeal to this court from the judgment and from the order refusing a new trial.
    The court at General Term say: “In a case arising in a Justice’s Court, appealed to the County Court, and there retried before a jury, this court occupies the same position as to findings of the jury, as the'Court of Appeals does to the findings of the jury at Circuit. Neither can review the findings on the trial when the same have been affirmed on a motion for a new trial in the court below. In fact, an order denying a new trial on the minutes, in such a case as this, is not appealable to this court. Chapter 3, title 9, part 2 of the Code, entitled, ‘Appeals to the Supreme Court from an inferior court,’ only authorizes an appeal from the County Court to this court, after trial, from a judgment rendered. This case, therefore,, must be treated wholly as an appeal from a judgment.
    The complaint counted upon two causes of action, one for a breach of warranty on the sale of twenty barrels of flour, the other for the recovery back of ninety-five dollars paid by mistake.
    The first point made by the defendants is, that “ the action was not • properly brought on a breach of warranty.” The plaintiff testified that in the negotiation for the twenty barrels of flour, he said he wanted none but good flour, and defendants said they would warrant the flour in question good family flour, and thereupon the plaintiff made the order. On test, and on sale to customers, the flour turned out not good flour. The verdict affirmed this evidence. It was an executory sale with warranty, "and the subsequent discovery of the breach entitled the plaintiff to an action for the damages. {Day v. Pool, 52 N. Y., 416.)
    The rest of the opinion is taken up with a discussion of fact.

      H. <& W. J. Welsh, for appellants. James I. Curtis, for respondent.
   Opinion by

James, J.

Judgment and order affirmed, with costs.


author: Leaened, P. J.

text:
    JOHN D. BRANNING, Appellant, v. ASAHEL HOLLISTER, Respondent.

      Contract for sale of land — rights of vendor and vendee vmde/r.

    Appeal from a judgment in favor of the defendant, entered upon an order nonsuiting the plaintiff.
    This action was brought for the conversion of hemlock bark. It appeared upon the trial that the defendant was the owner of the land on which the bai’k was cut; that it was wild land, and there was no house on it; that the plaintiff dived nine miles off; that the year before the agreement for cutting the bark, the plaintiff had made a contract for the purchase of the land from the defendant ; that the plaintiff made a contract with defendant to peel and pile for him the bark on this land, at a certain price; that the defendant cut and peeled this bark, and sold and delivered it to another person. The General Term held, that the title to the bark was not in the plaintiff, and affirmed the judgment. {Cooyer v. Slower, 9 Johns., 331; Wan Deusen v. Young, 29 Barb., 9.)

      A. C. Niven, for appellant. 1. Anderson, for respondent.
   Opinion by

Leaened, P. J.

Present — LeaRned, P. J., Boaedman and James, JJ.

Judgment affirmed, with costs.


text:
    HARRIET A. KELLAR, Plaintiff, v. JOSEPH B. RICHARDSON and GEORGE SCHERMERHORN, Defendants.

      Bmdence.

    ExCeptions ordered to be heard in the first instance at General Term, after a verdict for plaintiff. The action was brought to recover a sum of money paid- by plaintiff on a contract for a purchase of a cheese factory. One of the points litigated was, whether the defendants, in the contract which was made by them with the plaintiff, acted or agreed to contract with her in their own names, or whether the agreement was made and understood to be made by them as agents of the owners. The only point discussed at General Term was as to the competency of a question put to plaintiff on her own behalf, and answered by her under objection by defendant: “.To whom did you look for performance of the contract % ” The General Term held, that her answer showed merely her thoughts and not her acts, and was not competent evidence.

      B. T. Wright, for plaintiff. H. Ballard and W. H. Warren, for defendants.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Jahes, JJ.

New trial granted, costs to abide the event.


text:
    HUDSON B. HYDE, Respondent, v. ENOS STIMSON and others, Appellants.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee. ' The appeal involved only a determination of a question of fact. The General Term found .the report of the referee such a mixture of. facts and conclusions of law, that it was impossible to review it, and therefore ordered a new trial.

      F. M. Fineh, for appellants. W. W. Howe, for respondent.
   Opinion by

James, J.

PresentLearned, P. J., Boardman and James, JJ.

Judgment reversed, new trial granted, costs to abide the event, and referee discharged.


author: Davis, P. J.: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. WILLIAM M. TWEED, Impleaded with the Mayor, etc., of New York, Respondent. THE SAME, Respondents, v. THE SAME, Appellant.

      Complaint — amendment of — chapter 49 of 1875 — election between vm'ious allegations of fraud — Bill of particulars — where defendant has made it impossible to furnish it — cowrt will not sift out honest portion of fraudulent claim — Sem’dl sums obtained by f reñid — one ca/use of action.

    In an action by tlie people, brought under the provisions of chapter 49 of the Laws of 1875, an order, made on the application of the defendant, to recover for whose malfeasance the action is brought, which requires the plaintiffs to amend the complaint so that it shall specify what right or interesf in the premises the municipality, joined as a party defendant under the provisions of said act, “ set up or pretend to,” is erroneous for the reason that the party defendant so applying has no interest in such question and cannot take issue thereon.
    In an action for fraud, the fact that the complaint goes largely into detail in describing the process and progress of the frauds set forth, does not justify the court in requiring the plaintiffs to elect between several allegations, all of which only lead up to the general averment which constitutes the real gravamen of the complaint.
    A bill of particulars will not be required by the court when it appears that the defendant, by inducing his confederates to bum and destroy the books and papers from which such bill of particulars could have been prepared, has, to a great extent, made it impossible for the plaintiff to furnish it,

      In an action by the people under chapter 49 of the Laws of 1875, the court should not require the people to furnish a bill of particulars when the items to he furnished, if in existence, are contained in the public documents of a municipal corporation, or the private hooks or papers of the confederates of the defendant seeking such bill of particulars.
    A conspiracy to sustain fraudulent claims hy adding' large sums to smaller lawful claims, and thus obtaining the total sum, taints the whole transaction and vitiates it in toto. Courts will not sift out the honest portion of the claim and charge only the excess fraudulently obtained against the wrong-doer.
    In an action for moneys fraudulently obtained and unlawfully withheld, a suit to recover the gross amount may be treated as embracing but one cause of action. The fact that the moneys have been obtained by divers frauds perpetrated at different times, does not reduce the cause of action of the party defrauded to as many distinct causes of action as there are frauds.
    Ceoss appeals from an order made at Special Term, providing that plaintiffs should serve an amended complaint, wherein they should specify what right in the premises was claimed by the Mayor, etc. That plaintiffs should either strike out so much of the complaint as alleges a neglect to audit the claims referred to, or should state in the complaint that they do not rely on the neglect to audit as a cause of action; or if plaintiffs do elect to rely on the neglect to audit as a cause of action, that they shall strike out so much of the complaint as sets forth any fraud, conspiracy or combination on the part of the said Tweed and Watson. That plaintiffs should serve on the defendant a bill of particulars of the plaintiffs’ “claim,” setting forth in full and in detail: The whole or such parts of items in each of the bills, accounts, vouchers or warrants mentioned in the complaint, as plaintiffs claim to have been false ; the whole or such parts of items as plaintiffs claim to have been fictitious ; the whole or such parts of items as plaintiffs claim to have been fraudulent; setting forth in each case such parts, portions or items of such bills, accounts, vouchers or warrants as they claim represent supplies, materials or labor not furnished to the plaintiffs, giving the description, date and amount thereof; and such parts, etc., as plaintiffs claim to have been overcharged, or otherwise false or erroneous — stating the amount and description of supplies, etc., actually charged — the prices at which they were' charged, and those at which it is claimed they should have been charged. The moving party asked, in addition to the relief given by the order, that the complaint be set aside, because the causes of action were not separately stated or plainly numbered. This portion of the motion was denied.
    Plaintiffs appealed from the whole of this order except so much as denied a part of the motions, and from that defendant Tweed appealed.

      W. H. Peekham, for the plaintiff.
    The order is appealable. It requires that to be done which is done already, i. e., that plaintiffs state the rights of the corporation. It strikes out certain parts of the complaint giving to plaintiffs only an election as to which part shall go. Such an order affects a substantial right and is, in terms, appealable to the Court of Appeals, to which it can go only from the General Term. (Code, § 11, sub. 2; Trustees v. Forbes, 8 How. Pr., 285; Code, § 349; Oruger v. Douglass, 8 Barb., 81-86.) An order involving judicial discretion is always appealable. (Tugpp v. Cook, 26 Wend., 143.) The General Term cannot dismiss an appeal simply because the order is discretionary. {Matter of Duff, 10 Abb. [N. S.], 416; 41 How., 350; Fassett v. Tallmadge, 15 Abb. Pr., 205; Howell v. Mills, 53 N. Y., 322.) This order is of a class that is always appealable. ( Watt v. Watt, 2 Kobt., 687; Livermore v. Bainbridge, 56 N. Y., 74; Howard v. Freeman, 3 Abb. [N. S.], 292; 7 Hobt., 25.) The court erred in ordering plaintiffs.to serve the bill of particulars. (Code, § 158.) Bills of particulars (not being a mere statement of an account alleged in the pleadings) are ordered only on special cause shown. ( Willis v. Bailey, 19 Johns., 269; Horloek v. Lediard, 10 M. & W., 677; 12 L. J. [Exch.], 33.) The part of the order appealed from by the defendant should be affirmed. The common-law counts in debt and assumpsit, and the rules concerning the assignment of breaches in debt on bond furnish apt illustrations of the old law on this head. {Gaffney v. Colvill, 6 Hill, 578, and eases cited; Acorné v. Am. M: Co., 11 How. Pr., 27, and cases cited; Rowland v« Phálen, 1 Bosw., 44; Adams v. Holley, 12 How. Pr., 329.) A swindling clerk who embezzles from time to time from his master’s till, cannot compel a separate count for every abstraction. A rule requiring it would serve no useful purpose and would be very mischievous.

      Field db Deyo, for the defendant.
   Davis, P. J.:

This action is brought bj the attorney-general in the name of the people of the State of New York, under the provisions of chapter 49 of the Laws of 1875. (Laws of 1875, p. 43.) The right of action is by that act vested in the people of the State in their corporate capacity, and authority is given to maintain and prosecute the action independently of any other public authority, and whether or not such authority be a party to the action brought by or on behalf of the State. Provision is, however, made by the second section of the act, by which the court in its discretion may order to be brought in as a party to the action, by or on behalf of the State, any party to an action brought for the same cause of action by or on behalf of any other public authority. And it is declared by the same section that a final judgment in the action brought by the State, shall be a bar to any action for the same cause brought by or on behalf of any other public authority. The complaint in this action very fully discloses the rights and interests of the mayor, aldermen and commonalty of the city of New York in the subject-matter of the suit, by showing fully that they were the parties directly injured by the alleged fraud, and that the plaintiffs seek to recover the moneys obtained from them by the fraudulent transactions alleged in the complaint. The mayor, aldermen, etc., are made parties to the action obviously for the purpose of rendering unnecessary a motion to bring them in as parties; and for the purpose also of putting them more readily in a position to make application to the court, under the third section of the act, in case of a recovery, for such disposition of the proceeds as will justly and equitably protect their rights and, in tlie language of the act, “ reinstate their lawful custody, which was disturbed or impeded by the wrong complained of.’’

It was only necessary, therefore, to name the city as a party to .the action, leaving its authorities to assert its rights in such form and manner as they should deem advisable. So much of the order as requires the plaintiffs to serve an amended complaint that shall specify what right or interest in the premises the mayor, aider-men and commonalty set up or pretend to,” was improperly granted for several reasons: First, those rights and interests are already set forth with sufficient fullness and clearness to enable them to protect themselves, in ease of a recovery, in all their jnst and equitable rights; second, because the defendant Tweed has no interest in the question as to what “right or interest” the mayor, aldermen and commonalty now “set up or pretend to,” that being a matter of no legal importance to him, and one upon which he could take no issue, inasmuch as the right of action is perfect and complete in the plaintiffs by force of the statute, and cannot be defeated, nor should it be retarded by any false issues as to the present or future rights of the city.

That portion of the order which directs the plaintiffs, by their amended complaint, to strike out the allegation of neglect to audit the claims against the city, or state in such complaint that they do not intend to rely upon the neglect to audit as a cause of action, or to “ strike out so much of the complaint as sets forth any fraud, conspiracy or combination on the part of said Tweed or Watson,” cannot be upheld. It proceeds upon an altogether erroneous idea of the nature of the action and the object of the several averments.

The action is brought to recover some $6,000,000 alleged to have been fraudulently obtained from the city and county of New York by the defendant Tweed in conspiracy with others. It would, under the former system of practice, have been sufficient to have averred an indebtedness for so much money had and received to and for the use of the city, and under such averment to have shown the process by which Tweed and his confederates obtained the money which eon equo et bono, he and they are bound to return. The complaint in this case sets forth in larger detail substantially the same grounds of action, and it avers the process and pretenses under and by means of which the wrong-doers are alleged to have gotten possession of the money; and as a part of them it shows that Tweed held an official position in which it was his duty to have audited all claims of that kind against the county of New York, and thereby protect the treasury against false claims, and that he used that position, by a false pretense of auditing, when in fact no audit was made, as one of the steps to enable himself and his co-conspirators to defraud the county of the moneys now sought to be recovered. There are in the complaint no separate causes of action, and a mere recital of the various acts and practices, official or individual, cannot with propriety 'be said to be the averment of distinct and inconsistent canses of action. If the pleader, for greater caution, has gone more largely into detail in describing the process and progress of the frauds set forth, that is no good reason for compelling him to elect between several allegations, all of which only lead up to the general averment which constitutes the real gravamen of his complaint. The order striking out or compelling an election can have no other effect than to embarrass the case on the trial by restricting the evidence, essential to a com--píete history of the transactions, to such portions as may be contained in the averments which will still remain in the complaint. The trial court might feel bound by the order to exclude all proof tending to show so much of that history as would be stricken out of the complaint, and thereby great injustice might result to the plaintiffs. If there be technical faults of pleading in the complaint (which, however, we do not perceive), they are not such as can be prejudicial to justice, and therefore they are not the basis of such a motion as this. The true object of technical rules is to promote justice or prevent injustice. When they fail of those ends and come to eat like rust into the substance of justice, courts should neither encourage nor enforce them.

1 There are several substantial reasons why those portions of the order which require the service on the defendant’s attorneys of the bill of particulars specified therein, should not be allowed to stand. First. It is clearly apparent from the papers before us that it is not in the power of the plaintiffs to comply with many of the requirements of the order. It is shown that to a great extent the conduct of the defendant has made such compliance impossible. It is not contradicted that he required, or instigated his confederates to burn and destroy the books and papers which contained all the entries that existed of any real claims; not only the books and papers that contained such-comparatively inconsiderable items are thus put beyond the reach of plaintiffs, but the enormous false accounts which were presented, and upon which the moneys sued for were obtained, are shown to have been, with a slight exception, feloniously taken from the public custody and doubtless destroyed, by some person interested in their destruction. Upon these uncontradicted statements of the papers the defendant stands as a despoiler of evidence, and his right to demand particulars of the contents of books and papers of his confederates, rests on no solid foundation. He should at least exculpate himself from all connection with the spoliation, and establish with satisfactory certainty that the plaintiffs have the means of furnishing the particular contents of the destroyed books and accounts, before he asks that their suit be perpetually arrested till such particulars be served. Second. The order requires that the bill of particulars shall not only set forth the particulars of plaintiffs’ claims, but shall set forth “in full and in detail: 1st, the whole or such parts of, and items in, each of the bills, accounts, vouchers or warrants mentioned in the complaint as they claim to have been false; and, 2d, the whole or such parts of items as they claim to have been fictitious; and, 3d, the whole or such parts of items as they claim to have been fraudulent, and setting forth in each case the parts, portions or items of such bills, accounts, vouchers and warrants as they claim represent supplies, materials or labor not furnished to the plaintiff, giving the description, date and amount thereof, and such parts, portions or items as they claim to have been overcharged, or in any other respect false or erroneous, stating the amounts and descriptions of supplies, materials and labor actually charged, and the prices at which they were charged, and also stating the prices at which they should have been charged.” The plaintiffs were not parties to the original transactions. Although strangers to them, they are clothed by law with power to sue as parens patries in cases of such alleged frauds, in order that public wrongs may not go unredressed. If all the papers, books and vouchers referred to in the order, or from which the particulars demanded must be obtained were in existence, they would still be the public documents of the city of New York, or the private books and papers of the alleged confederates of the defendant Tweed, and in that case it would not be the legitimate office of an order for a bill of particulars to require what is demanded by this order. The defendant would be directed to seek such facts, where the plaintiffs must themselves seek them, in the documents, books and papers, not under the control of plaintiffs, but in the public records, or private books and papers of others. A different rule would put it in the power of the defrauding parties to make all efforts of the State to recover under the act of 1875, difficult and perhaps wholly nugatory. The collusion of officials or the connivance of the confederates in wrong, by doing precisely what appears in this case to have been done, would put it in the power of a party sued, by obtaining such an order as that above recited, with a stay of all proceedings till compliance with it on the part of the plaintiffs, to defy the State and laugh at all its efforts to enforce the remedies given to it by the statute. But it is of no legal consequence that the defendant should have the particulars granted by the order. The complaint álleges in clear and plain terms that all the claims upon which the defendant and his confederates obtained the money were wholly false and fraudulent. There is no allegation or concession that any part of them was lawful or just. Upon such allegations there is no ground for a demand that the plaintiff shall state what parts of such claims were just and legal, 'or for items and services actually furnished or performed. It is not the office of a bill of particulars to enable the defendant to impeach or defend the claims asserted by plaintiffs’ complaint (Drake v. Thayer, 5 Robt., 694; Fullerton v. Gaylord, 1 id., 551), but to ascertain what claims are asserted and demanded. So, where one sues on an account for moneys loaned, the defendant cannot demand a statement of what sums have been repaid (Ryckmam, v. Haight, 15 Johns., 202), or what portion of the loans was usurious, or what credits ought to be allowed, for any reason, against the loans. ( Williams v. Shaw, 4 Abb. Pr., 209.) If the demand be for $10,000 of moneys lent, the defendant may demand the items that make up that sum, with dates and amounts of the respective sums, and the plaintiff will be required to specify such dates and amounts of loans. But if he avers that $10,000 is due and unpaid, he cannot be compelled by bill of particulars to contradict that averment by showing that the amount actually loaned is not due because some portion has been paid, or some credit or counter-claim exists against it. The averment of the plaintiffs that the claims upon which the moneys were obtained in this case were altogether false and fraudulent, do not, under well settled practice, allow the defendant to demand a bill stating what parts of such claims were not of that character. The defendant seems to have acted upon the idea that if the claims presented contained some item or items justly demandable, and which might by themselves have been properly presented, audited and paid, that fact will, fro tanto, enable him to insist that the claims were not fraudulent and the money was properly obtained. Such a position would be equally unsound in morals and in law. The claims presented and paid, as alleged in the complaint, would be fraudulent vn toto and not in part. The conspiracy to build up claims of many thousands, upon items of as many hundreds, and thus fraudulently obtain the larger sum, taints the whole transaction with fraud, the virus of which permeates every nerve and fibre of the claim and destroys the whole. No court will sit in such a case to sift out for the benefit of criminals the items that might have been the basis of a just claim if presented in an honest manner for an honest purpose. The wrongdoer must restore the fruits of his wrong, and is not at liberty to offset any honest claim he may possess against his crime. It is not the just claim that has been presented, but one none the less false because some real item has been used to give a color of truth to the deception. But in no admissible view has the defendant Tweed any right or interest in the question whether the parties who conspired with him to commit the fraud had some show of claim, which, if properly presented and audited, might have been lawfully paid. He can neither set off nor recoup such claim, not only because he has no legal interest in it, but because it has never reached the condition, by lawful presentation and audit, upon which any legal obligation to pay arose against the city or county. It is a matter of no moment to him how much just claim his confederates might have honestly made, since, in fact and in law, they made none honestly, and he joined with them in procuring payment of their dishonest claims for the purpose of sharing the unlawful proceeds. And lastly, the schedules annexed to the complaint fully advise the defendant of each particular account or claim which the plaintiffs aver was false and fraudulent, and the amount of the money obtained upon them respectively, and the dates and form in which they were obtained. They are in themselves a complete bill of particulars of the several sums for which the action is brought. We are able to conceive of no ground upon which the order can be upheld. The order appealed from by the plaintiffs must be reversed, with ten dollars costs, besides disbursements, and the motion be denied with ten dollars costs.

The appeal on the part of the defendant presents the question whether the court below should have compelled the plaintiffs to make the complaint more definite and certain, or' have stricken out portions thereof as irrelevant and redundant. This part of the motion was properly denied. It seems to proceed upon the idea that several causes of action are improperly united, or if not improperly united, that they should have been separately stated and numbered. We think it is a misapprehension of the nature of the action to insist that the complaint sets up several causes of action. The plaintiffs have a right of action for all the moneys fraudulently obtained by -the defendant and his confederates in the manner set forth in the complaint. They may demand this as a whole, because the sum total is the amount of the indebtedness to them- for which they are authorized to sue. The fact that the moneys were obtained by divers frauds perpetrated at different times, does not reduce their cause of action to as many distinct causes of action as there happened to have been frauds.' The vendor of goods sold from time to time may sue upon the account as one cause of action, and so may the lender of moneys, although their several accounts are made up of numerous items running through a long period of time, and no court has ever deemed it necessary that each item should be set forth as a distinct cause of action, in a separate and distinctly numbered count. So, we have no doubt, when an action is given for moneys fraudulently obtained and unlawfully withheld, the gross amount may be treated as a single cause of action. This part of the motion below was rightly disposed of, and the order in that respect should be affirmed with ten dollars costs and disbursements. The order extending time to answer is revoked, and the defendant Tweed is allowed to answer within the time remaining unexpired when the order hereby reversed was entered.

DaNiels, J., concurred.

Beady, J.:

In this action the defendant is charged with a fraudulent procurement and appropriation of several sums, indicated by warrants issued for their payment,- amounting in the aggregate to several millions of dollars.

The averments of the complaint charge that the total sum was fraudulently and by false device obtained and used. A schedule of the warrants is annexed to the complaint. The defendant, on the assumption that valid claims to some extent were included in the various sums thus paid, and that it would so appear by a bill of particulars if ordered, applied for one. He thus seeks, it would seem, to change the character of the demand made against him, by reducing his liability just such an amount as the acknowledged validity of these claims might make. The obligation to give this information, if imposed, would necessarily require the plaintiffs to examine and ascertain what part of each warrant, if any, represented a just and legal claim against the city, a duty which was incidental to the office held by the defendant. It would, in effect, require the plaintiffs therefore to modify their demand, to forego, perhaps, the defendant’s personal liability for the sum paid in gross, and to furnish the defendant with what would be, if admissible, as a part thereof, the principal if not the chief feature of his defense. It would change the gravamen of the complaint and make it substantially thus: the defendant fraudulently and by false device obtained warrants which were based upon valid claims io certain extent as follows, etc. This is not the case made by the complaint. If the defendant can lessen the apparent fraud by establishing an existing liability to some extent as to each warrant, the burden is upon him; the plaintiffs are under no obligation to admit any liability for any sum. The warrants being the result of frauds perpetrated, the presumption is not that they are fraudulent in part only, but in whole. When the warrants were given, the plaintiffs did all that they should be required to do according to this action, its object and nature. If, however, this view be erroneous, and it be by law incumbent upon the plaintiff, in an action like this, to dissect the fraudulent document, separating the good from the bad, and thus take upon himself the burden of protecting the defendant to the extent of his fair dealing, then it must be said that nearly all the vouchers relating to the warrants are destroyed, and were so, not by the city or the plaintiffs, but it would seem by the defendant or the persons with whom he was in league to perfect and carry out the system by which the frauds were accomplished. It further appears, at least as to some of the bills, that the prices charged were fictitious, and that being so, no entries were made upon the books of the vendors, and they cannot be reproduced. These are difficulties which array themselves against the success of the application, and must defeat it. The learned justice in the court below, on this branch of the case, felt governed, it would seem, by the case of The Mayor v. Marriner and Tweed, but there is a distinction between that case and this; in that case the claim was alleged to be partly fraudulent only. I deem it unnecessary to go over the other points discussed by Justice Davis. I think he is right in his conclusions as to them, and that the disposition suggested should be made of the appeal.

Ordered accordingly.