author: Richard L. Hand, Referee. Putnam, J.

text:
    Simon Schriver, Resp’t, v. The Village of Johnstown, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    1. Nuisance—Injunction.
    Where a municipal corporation has established a permanent system of sewers by which the sewage is collected and emptied into the pond of an individual, thereby polluting the water and causing a large deposit of offensive matter therein, such individual is entitled to a perpetual injunction restraining such nuisance and to at least nominal damages.
    '3. Same—Damages.
    In an action to abate a nuisance and for damages against one of several wrongdoers, where all the evidence bearing on the question of damages which in the nature of the case is fairly possible has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or opinion.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee, for $2,000, and restraining the defendant: from ■conducting to and depositing in plaintiff’s pond or the streams flowing into said pond any solid matter whatever, whereby the stor-age capacity of the £>ond is diminished or the plaintiff’s machinery obstructed, or the business carried on upon plaintiff’s premises injuriously affected.
   The following is the opinion of the referee:

Richard L. Hand, Referee.

It seems to be established by the evidence that the defendant’s sewers gather and discharge into the ■plaintiff’s pond a large amount of noxious and offensive matter which would not otherwise find its way there, and that the result is not only pollution of the water, but an actual deposit upon the premises of the plaintiff of such offensive matter in considerable quantities. This is in the nature of a direct trespass, not unlike a deposit of the same matter by hauling in wagons, and cannot be justified. Hooker v. City of Rochester, 37 Hun, 181.

It constitutes a continuing trespass and is a nuisance which should be enjoined by the court. This is the common remedy. Townsend v. Bell, 62 Hun, 306; 42 St. Rep., 229.

The exercise of corporate powers under general legislative sanction does not relieve the defendant from responsibility in such a case. Noonan v. City of Albany, 79 N. Y., 470; Seifert v. City of Brooklyn, 101 id., 136; Chapman v. City of Rochester, 110 id., 273; 18 St. Rep., 133; Stoddard v. Saratoga Springs, 127 N. Y., 261; 38 St. Rep., 683; Beach v. City of Elmira, 11 N. Y. Supp., 913 ; 34 St. Rep., 522; Bacon v. Oity of Boston, 28 N. E. Rep., 9.

Nor do we think it defeats the plaintiff’s rights to an injunction that he has himself contributed to or acquiesced in the pollution of the stream upon his land. If the defendant did nothing more than pollute this water so as to impair or destroy the plaintiff’s enjoyment of the water as it was wont to flow over his land, we are inclined to think the fact of pollution by the plaintiff himself would be a complete answer to his complaint. He could'" hardly be heard in a court of equity to complain of the injury which the defendant was doing to him when it appeared that he was himself doing precisely the same injury to himself, as well as to all below him on the stream.

It may be doubted whether this situation is strictly within the principle of the “trademark” cases cited by the defendant. See also Hazard v. Caswell, 93 N. Y., 259; N. Y. Card Co. v. Union Card Co., 39 Hun, 611.

But however this may be, it would seem sufficiently absurd to give one tort feasor an action against another for doing precisely the same thing. Certainly there has been no contribution among wrong-doers since Merryweather v. Nixan, 8 T. R., 186, unless within certain well defined exceptions which do not touch the question; and equity will not interfere under such circumstances.

But, notwithstanding this, we think the plaintiff suffers injury from the wrongful acts of the defendant to which he does not contribute, and from such injury he should have relief. The true principle is well stated by the supreme court of Iowa, in a recent case: “ Acts of plaintiff sufficient to defeat his recovery would be such as contributed to cause those things of which he complains. If he has sustained damage from the wrongful acts of the defendant to which he did not contribute, then he should recover therefor.” Ferguson v. Firmenich M'fg Co., 77 Iowa, 576; S. C., 14 Am. St, 319, 322.

This appears to be an action at law, but we think the rule is the same in equity. Wood on Nuisances, § 484, p. 533; Jackman v. Arlington Mills, 137 Mass., 277.

There can hardly be a question that this is so in the case of a defendant who brings onto the premises of the plaintiff large quantities of solid matter, lessening the capacity of his pond and interfering with his business in other ways.

The waters of this pond had been condemned to secondary uses before any sewers were built by the defendant, and the plaintiff himself had contributed to that result. I have no hesitation in deciding that this water had become entirely unfit for domestic use from causes for which the defendant is not responsible, and that the plaintiff is entitled to no damages for depreciation in the value of the enjoyment of the water for primary uses, including the ice formed thereon.

His damages, occasioned by the defendant, are difficult of measurement, and, indeed, the evidence does not furnish means for ascertaining them with precision.

As to the expense of removing from the plaintiff’s premises any deposit of matter brought there by the defendant, the evidence gives no data for determining the amount of such deposit, and consequently this element of damages cannot be considered.

J. Keck (Matthew Hale, of counsel), for app’lt; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.

We think the only measure of damages which can be used is depreciation of rental value. And as to this, it is very difficult to determine to what extent it is attributable to the defendant. The defendant can be charged only with that part of the injury occasioned by its own wrong. Chipman v. Palmer, 77 N.Y., 51.

And here are several sources of this depreciation. The filling up of the pond is contributed to by much sand and other substances brought down by the current, by surface drainage, by bran and other refuse from the mills, etc. The filthy contents of the water interfering with plaintiff’s business do not come wholly from sewers, but in part from privies, mills, surface drainage, etc., without connection with those sewers. A part of the depreciation in rental value is due to the pollution of the water, rendering it and the ice formed updn it unfit for domestic use, as we have seen, and under circumstances which eliminate it from the case on the question of damages.

Still, when it is reasonably certain that the defendant has caused injury to the plaintiff, it is the duty of the court to arrive at the amount of damages, although its judgment is an estimate and certainty is impossible. Drucker v. Manhattan Railway Co., 106 N. Y., 157; 8 St. Rep., 599.

The result of our examination of the question is that the total depreciation in rental value since the introduction of the sewers in 1882 may be fairly estimated at $600 per annum. From this should be deducted for domestic purposes, ice, etc., $300, leaving $300 per annum. One-third of this may be regarded as due to causes for which the defendant is not responsible. Upon this basis we find the damages to be at the rate of $200 per annum, which, for the years elapsed since defendant introduced its sewers, gives a total of $2,000 damages against the defendant.

Putnam, J.

The learned referee has written a very satisfactory and exhaustive opinion, on which I think the judgment should be affirmed. On competent and sufficient evidence he has found that the defendant in June, 1882, completed a permanent system of sewers and gutters in the streets of the village of Johnstown, through which the sewage of said village was collected and emptied into plaintiff’s pond, not only polluting the water, but causing a large deposit of offensive matter therein. That ever since said period the flow of said sewage onto plaintiff’s premises has continued.

Such being the facts of the case, I think the plaintiff was entitled to the judgment awarded of a perpetual injunction, and to at least nominal damages. Noonan v. City of Albany, 79 N. Y., 477 ; Stoddard v. Village of Saratoga Springs, 127 id., 261; 38 St. Rep., 683.

The only damages allowed by the referee are for the diminution of the storage capacity of plaintiff’s pond caused by the deposit therein of the contents of defendant's sewers, and the destruction of his machinery, and the consequent injury to his business. The referee determined that such deposit depreciated the rental value of plaintiff’s premises $200 a year.

The depreciation in the rental value of plaintiff’s premises, however, was shown on the trial to be attributable to several causes. The pollution of the water, for which no damages were allowed by the referee; the natural surface drainage of the village of Johnstown; the drainage of other mills; the contents of private sewers, privies, etc., together with defendant’s sewage produced such depreciation. There is no evidence showing with .any degree of certainty the amount of the deposit in plaintiff’s pond caused by defendant’s sewers, and the amount produced by other causes, or to what extent the rental value of plaintiff’s premises is diminished by acts of defendant.

As the referee very properly suggests, “ His (plaintiff’s) damages occasioned by the defendant are difficult of measurement, and, indeed, the evidence does not furnish means of ascertaining them with precision.’’

The serious question of the case, and one on which I entertain, considerable doubt, is whether the evidence was sufficient to justify the finding of the referee as to the amount of plaintiff’s damages. It is urged that without any evidence showing the amount of deposit in the pond caused by defendant, and the quantity left there by other sewers, the conclusion of the referee as to the amount of the diminution of the rental value produced by defendant is founded on mere conjecture. It must be admitted that there is some plausibility in this position. But there are well considered authorities which seem to sustain the view of the learned referee.

Drucker v. Manhattan R. Co., 106 N. Y., 156; 8 St. Rep., 599, was an action brought against the defendant for damages for interfering with plaintiff’s easement in a street. The damages allowed was the diminution of rental value of plaintiff’s property. The evidence tended to show that such diminution was caused by defendant's road, and also by a tendency of the business to move “ up-town.’’ In the opinion the following language is used: “It is often the case that damages cannot be estimated with precision and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible is given, the good sense of a jury must provide the answer, and it is no defense that such judgment involves more or less estimate and opinion, having very little to guide it. That criticism has no force in the mouth of the wrongdoer when all reasonable data have been furnished for consideration.”

The same doctrine is held in Tallman v. Met. El. R. Co., 16 St. Rep., 684. In Van Steenburgh et al. v. Tobias, 17 Wend., 562-63, Judge Gowen, holding that a joint action does not lie against the separate owners of dogs by whom the sheep of a third person has been killed, says: “ The difficulty in accurately estimating the damage done by each dog is not an argument of sufficient strength to warrant the injustice of punishing a man who is innocent. The jury must, in this, as inmost cases of wro7ig, gel at the real damages in the best way they can.”

In a similar action, Buddington v. Shearer, 20 Pick., 477-479, it was held: “ There may be some difficulty in ascertaining the quantum of damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by one dog, and what by the other, there would be no difficulty; and on failure of such proof each owner might be liable for an equal share of the damage, if it' should appear that the dogs were of equal power to do mischief and there were no circumstances to render it probable that greater damage was done by one dog than by the other.”

The same doctrine is held in Auchmuty v. Ham, 1 Denio, 495, and in Partenheimer v. Van Order, 20 Barb., 479.

It follows that, in actions like the one we are considering, as in those for personal injuries, where all the evidence bearing on the question of damages “ which in the nature of the case is fairly possible ” has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or ■opinion. In this case the evidence given on the trial was voluminous and all the facts bearing on the question of damages, as far as possible, seem to have been brought out, and I think, under the authorities cited, the conclusion of the referee was warranted by the evidence and therefore that the judgment should be affirmed.

Judgment affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    The Albany County Savings Bank, Resp’t, v. Thomas McCarty et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    1. Mortgage—Proof of execution.
    The acknowledgment on a bond and mortgage is presumptive, but not conclusive, evidence of the due execution thereof.

      % Same.
    The mortgage in question was duly acknowledged, but the commissioner who took it testified that it was taken at his office, and that he did not remember of being at the home of the mortgagor about the time of its date, and that he was not certain that the person making the acknowledgment was the deceased mortgagor; while it was shown that the mortgagor was sick at home at the time, and it appeared that on said date she executed other papers before said commissioner. Held, that the evidence raised a question of fact for determination by the referee, and that his finding that the paper was executed would not be disturbed.
    3. Same—Direction for judgment.
    A statement in the report of the referee that the plaintiff is entitled to judgment of foreclosure and sale and for deficiency, if any, is a sufficient direction for the entry of such judgment.
    ■ Appeal from judgment of special term, ri idered on the report ■of a referee for foreclosure ■ and sale of mortgaged premises, and also from orders recommitting the report to the referee, and modifying the first order, and directing final judgment.

      Gleason & Dugan (P. C. Dugan, of counsel), for app’lts; Lansing Hotaling (E. Countryman, of counsel), for resp’t.
   Putnam, J.

This action was brought upon a bond and mortgage, claimed to have been executed by defendant, Thomas McCarty, and by Ellen McCarty, deceased, his wife, on April 25, 1887, upon premises of the latter, to secure the payment of $8,000 one year from date. The relief demanded in the complaint was the foreclosure of said mortgage and judgment for the deficiency, if any, against said Thomas McCarty individually, and as administrator of Ellen McCarty, deceased.

The defendants, Mary E. McCarty (of full age) and John J., Thomas, Jr., Frank, Augustine and Agnes McCarty (infants), by their guardian ad litem, as heirs at law of Ellen McCarty, deceased, interposed answers denying the execution of said bond and mortgage by deceased. The issues were referred, and the referee found in favor of the plaintiff. The only question litigated before him was as to the execution of the papers in question by the deceased.

On the trial plaintiff, having read in evidence the bond and mortgage on which the action was brought, and which, being duly acknowledged, proved themselves, rested. The acknowledgments on said papers was presumptive, but not conclusive, evidence of the due execution thereof. Sudlow et al. v. Warshing et al., 108 N. Y., 520-522; 13 St. Rep., 812.

On such acknowledgments, unless impeached by competent evidence, the referee could properly determine that the mortgagors duly executed said papers. It is well settled that there is a strong presumption that 9 deed properly acknowledged and recorded was in fact duly executed. As said in Pierce et al. v. Feagans, 39 Fed. Rep., 587-592: “ The record is in due form of law, and it is aided by the presumption that always attends the acts of public officers, that the duty devolved on the officer was properly performed in the manner stated.”

Plaintiff having rested on the strong and satisfactory evidence of the due execution of the said bond and mortgage arising from the proper acknowledgment thereof, it was for the defendants to answer that testimony. The principles applicable when such a state of facts appears are considered in many reported cases, some of which are referred to by counsel for respondents. These authorities hold that: “the evidence to impeach the certificate of the acknowledgment of a deed must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion or preponderance of evidence less than sufficient to establish a moral certainty to that effect is insufficient. Griffin v. Griffin, 125 Ill., 430; Young v. Duvall, 109 U. S., 573.

Remembering this well settled doctrine and after a careful examination and consideration of the evidence in the case, we are of the opinion that we cannot properly reverse the findings of the learned referee on the questions of fact submitted to him, as contrary to the evidence.

Defendants on the trial sought to impeach the certificate of acknowledgments on the bond and mortgage by the testimony of Commissioner Krank, the officer who took such acknowledgments, to the effect that they were taken at his office in the city of Albany, and showing by other witnesses that at that time Ellen McCarty was confined to her bed by sickness and unable to be in Albany. The testimony of the witness Krank also tends to show that he was not certain that the person who made such acknowledgments as Ellen McCarty was the deceased mortgagor, and the woman who in fact made the acknowledgment may have been some other person. He thought he was never at the residence of Ellen McCarty at or about the time the acknowledgments in question were taken. Defendants also show that the signatures to said bond and mortgage were not in the hand-writing of deceased, and produce some testimony tending to show that at that time deceased was unable to execute said papers at her own house.

It will be seen that the defense rests principally upon the testimony of the witness Krank. Theevidence was such that the referee could properly find that at the time the papers in question were executed, deceased, although sick and confined to her bed, was yet able to execute them at her home. There was evidence that on April 25, 1887, the day of the date of said bond and mortgage, she with her husband executed a chattel mortgage to one Shubal Kelly which was acknowledged before said Krank. There was also testimony given by her physicians indicating that at the time mentioned she was in a condition to execute a bond and mortgage.

It was not essential to the due execution of the bond and mortgage that the signature thereto should be in the handwriting of deceased. If she directed another to sign her name to the papers or assented to such signing and afterwards acknowledged the execution thereof, this would be a legal execution. Frost v. Deering, 21 Me., 156; Bartlett v. Drake, 100 Mass., 174; Mackay v„ Bloodgood, 9 Johns., 285; Greenfield Bank v. Grafts et al., 4 Allen, 447.

But the evidence renders it almost certain that deceased om April 25, 1887, was unable to be at the office of Commissioner Krank in Albany. Assuming that the person who made the acknowledgment to the bond and mortgage as Ellen McCarty did so at the said office, as Krank testifies, it would follow that some person on that occasion simulated her.

It was for the referee to determine what credit, if any, should be given to the testimony of the witness Krank thus produced by defendants to impeach his official certificate. The referee heard and saw him, and witnessed his manner of testifying. The witness was not certain that the papers in question were acknowledged at his office, and his testimony was somewhat contradictory and unsatisfactory. The referee could properly under the circumstances disbelieve and disregard such testimony, especially where it tends to impeach and contradict the official certificate of the witness. The referee was not com-, pelled to hold on the evidence of said witness that the bond and mortgage were acknowledged at his office in Albany, it appearing that deceased was not then in a condition to appear at said office. He could properly determine that the recollection of such a witness as to a transaction occurring several years before was not of sufficient weight to impeach his official certificate.

We do not deem it necessary to further discuss the evidence. A question of fact was submitted to the referee as to whether Ellen McCarty did, or did not, execute the bond and mortgage in question. On the one hand the official certificates of the officer attached at the time, and on the faith of which the papers were accepted and recorded, were read in evidence. On the other side was the unsatisfactory testimony of the officer who took the acknowledgment, offered with a view of impeaching his own official certificate. We think the conclusion of the referee was justified by the evidence.

There was no material error in the order sending the report back to the referee for correction, or in the subsequent order modifying the first order. The report at the end thereof contains the following language: “ That the plaintiff is entitled to the usual judgment for the foreclosure of the said mortgage and a sale of said mortgaged premises with judgment for deficiency, if any there should be, against the defendant, Thomas McCarty, individually, and as administrator of the goods, chattels and credits of Ellen McCarty, deceased, together with the costs of this action.”

This is a sufficient direction for judgment. In saying that the plaintiff “ was entitled ” to the judgment as specified in his report, the referee sufficiently directed the entry thereof. Gold v. Serrell, 21 N. Y. Supp., 1078; 51 St. Rep., 141; Hinds v. Kellogg, 13 N. Y. Supp., 922; 37 St. Rep. 356.

On this direction, contained in the referee’s report, plaintiff was entitled to judgment of foreclosure and sale.. Hence the order objected to by the defendants, as to them, was unnecessary and unimportant, as on the report itself plaintiff was entitled to the judgment in fact entered. Of course, as to those defendants who did not answer it was necessary to apply to the court for the usual judgment of foreclosure and sale.

The judgment should be affirmed, with costs.

Parker, J., concurs; Mayham, P. J., not acting.


author: Mayham, P. J. Putnam, J. (dissenting.)

text:
    Martin Coffin, Resp’t, v. William Lockhart, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 15, 1893.)

    Mortgage—Collateral—Consideration.
    Defendant in a deed to him agreed to assume a mortgage upon the premises conveyed as part of the purchase price, and afterward, without further consideration, executed a bond and mortgage to indemnify plaintiff against payment of said mortgage so assumed by him. The former mortgage was foreclosed, leaving a deficiency. In an action to foreclose the indemnity mortgage, Held, that the contract between the parties was complete on the delivery of the deed, and that the indemnity mortgage having been given without a new consideration, the court erred in directing judgment for plaintiff.
    (Putnam, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon the decision of the court at special term, in an action of foreclosure.

      Charles R. Patterson, for app’lt; J. H. Bain, for resp’t.
   Mayham, P. J.

This is an appeal from a judgment entered upon the decision of the court at special term in an action to foreclose a mortgage.

On the 1st of January, 1880, the plaintiff executed his bond, conditioned for the payment of $1,500 to Charles Parsons, and as collateral thereto executed and delivered to Parsons a mortgage on certain real estate belonging to the plaintiff, to secure the payment of the aforesaid sum.

On the 9th of October, 1884, the plaintiff and wife, by warrantee deed, conveyed the mortgaged premises to William Lock-hart, this defendant, for the consideration of $2,500; $1,000 of which was paid at the time, and the remaining $1,500 the defendant Lockhart, in and by the deed received by him, agreed to assume and pay in the payment of the $1,500 and interest on the Parsons mortgage. The language in said deed by which the defendant assumed this payment is as follows: “ This conveyance is given subject to a mortgage of $1,500 and interest from October 1, 1884, which the party of the second part hereby assumes and agrees to pay as a part of the purchase price.”

On the 10th day of December, 1889, the defendant Lockhart executed and delivered to the plaintiff his bond with the penalty of $3,000, containing the following condition: “ The condition of this obligation is such that if the above bounden heirs, executors, or administrators shall well and truly pay, or cause to be paid unto the above named Martin Coffin or his certain attorney, executors, administrators or assigns, the just and full sum of $1,500 with interest according to the conditions of a bond executed by Martin Coffin to Charles Parsons, dated January 1, 1880, to secure the payment of the sum of $1,500 with interest.

“ This bond is given to secure said Martin Coffin and save him harmless of and from all liability upon, or by virtue of the said bond so by him given to the said Charles Parsons. The premises described in the mortgage given by said Coffin to said Parsons to secure the aforesaid bond having been conveyed to the party of the first part, and he having assumed and agreed to pay said bond and mortgage as a part of the purchase price for said premises.”

As collateral to this bond the defendant at the same time executed and delivered to said Coffin a mortgage upon the premises conveyed to him by the plaintiff in and by the deed above referred to, which mortgage, among other things, contained the following : “ Provided always, and these presents are on the expressed condition that if the said William Lockhart, or his heirs, executors or administrators, shall well and truly pay, or cause to be paid, to the party of the second part, executors, administrators or assigns, the sum of $1,500, with interest, according to the conditions of a certain bond or writing obligatory, bearing even date herewith, executed by the said Lockhart to said Coffin, to said party of the second part, which sum the said William Lockhart hereby covenants to pay, then these presents shall cease and be void.”

The mortgage also contained the usual condition in case of default by the defendant in paying according to the terms of the bond.

On the 27th day of July, 1891, an action was commenced by Charles Parsons against the plaintiff and defendant to foreclose the mortgage of $1,500 given by the defendant to Parsons, the payment of which had been assumed by the defendant Lockhart in the deed of conveyance to him, and such proceedings were thereon had that judgment of foreclosure and sale was entered in said action in September, 1891, and on the 31st clay of December, 1891, a judgment for deficiency on said foreclosure and sale was entered and docketed in the proper county, against this plaintiff, for $803.69.

About the 26th of November, 1890, this plaintiff commenced an action against this defendant and one Walter Lockhart, setting up the conveyance of these premises by the plaintiff to the defendant and the condition in the deed by which this defendant assumed and agreed to pay the Parsons mortgage, and praying that a specific performance of that agreement be decreed against this defendant, and such proceedings were thereupon had that on the 17th day of August, 1891, a judgment was recovered against this defendant, in favor of the plaintiff in that action, for the sum of $1,626.67 damages, and $43.18 costs, being the amount claimed to be due and unpaid on the $1,500 Parsons mortgage. This judgment contained this recital':

“ In case the defendant, William Lockhart, pays or satisfies the said bond and mortgage described in the complaint and in the report of the said referee before the sum of $1,626.67 be collected upon execution, then there shall be credited upon any execution issued or to be issued for the collection of this judgment, the sum of $1,626.67 with interest thereon, but this provision shall not in any manner affect the execution issued or to be issued for the collection of costs in this action.”

On this judgment execution was issued to the sheriff of the proper county on the 18th of August, 1891, and also an execution on the same judgment on the 12th of December, 1891, which first mentioned execution was indorsed “ received August 18, 1891," and returned nulla bona the 5th of October, 1891, by the sheriff of Washington county.

On the 19th of November, 1891, this action was commenced for the foreclosure of the mortgage executed by defendant to plaintiff, dated December 10, 1889.

The complaint in this action was in the usual form of a complaint in foreclosure, but recited that said bond and mortgage was upon condition that the defendant should save the plaintiff “ harmless of and from all liability ” upon and by virtue of a certain bond executed by Martin Coffin to Charles Parsons, dated January 1, 1880, which bond was conditioned for the payment of $1,500. The answer set up substantially the transactions between the plaintiff and defendant, the prosecution of the equitable action for a specific performance, and that no effort had been made-at the time of the commencement of this action for the collection of the judgment recovered in that equitable action; that that action resulted in the recovery of the amount claimed to be due on this mortgage; that the defendant, at the time of the commencement of this action, was the owner of the premises described in the mortgage; that the plaintiff still owns and holds the judgment in the action for specific performance, and that there is no valid consideration for the mortgage on which this action is brought.

The trial judge found, as a conclusion of law, that there was due upon the bond and mortgage in suit in this action the sum of $803.68, and directed judgment of foreclosure and sale of the mortgaged premises to satisfy that amount, and judgment against the defendant for any deficiency that might arise on said sale. Upon this judgment was entered, and from that judgment plaintiff appealed.

The defendant, on purchasing the premises in question, became liable to pay as a part of the consideration the sum of $1,500 to satisfy a mortgage then upon the premises.

That sum he failed to pay, and the plaintiff, who was primarily liable upon the bond to which that mortgage was collateral, was compelled to, and did pay the sum which is found due in this action.

The appellant’s contention is that the bond and mortgage in suit in this action was void for want of consideration. If this bond and mortgage was an original undertaking between the parties to it, with no other consideration than that which the defendant agreed by accepting the deed to perform, then it would seem that the defendant’s contention is sound, as in that case there would be no new consideration for the giving of the same, the defendant having already contracted to pay the $1,500 by his acceptance of the deed containing that agreement and the plaintiff at that time having accepted that agreement without exacting any security as collateral to the same.

There could not, therefore, be any considertion of benefits to the mortgagor to support this bond and mortgage, or of harm to the mortgagee by not reserving such collateral, as the rights of the parties, so far as the payment of this $1,500 is concerned, were fixed by the agreement in the deed, and there is nothing in the case from which- any new consideration can be found. This would seem to bring the case within the decision of Vanderbilt v. Schreyer, 91 N. Y., 392.

That was an action to charge a guarantor with the payment of a mortgage 'guaranteed by him. The plaintiff in that action undertook to build a house, and was by the contract to be paid in part by the assignment of the $5,000 mortgage. At the time fixed in the contract for making the assignment the defendant tendered the mortgage duly assigned without guarantee.

The plaintiff insisted upon the defendant guaranteeing the same, and he accordingly, without any new consideration moving to him for such guarantee, yielded to the plaintiff’s request and guaranteed the mortgage. In an action upon such guarantee it was held that the same was without consideration and void as to the guarantor, and Huger, Judge, in discussing that question, says: “It. being clear that Vanderbilt had no legal right to require as a condition to the fulfilment of his contract the performance of any act not required by the contract, it is difficult to see what benefit, he has bestowed or inconvenience he has suffered in return for the undertaking assumed by the defendant

“ He promises to do only that which he was before legally bound to perform ; even though it were in his power to refuse to perform his contract, he could do this only upon paying the other party the damages occasioned by his non-performance, and that in contemplation of law would be equivalent to performance.

“ He had no legal or moral right to tef use to perform the obligation of the contract into which he had, upon a good consideration, sufficiently entered. There is no evidence in support of the claim that this guarantee was given as a compromise of any dispute arising with reference to the obligation of the plaintiff under his contract with Gebhart and Ritchie. The case is not therefore-brought within the cases in which a performance has been upheld on the theory that it was made under settlement of controversy over disputed claims. The authorities seem quite uniformly to show the inadequacy of the consideration alleged in the guaranty."

And the learned judge also says: “The incorporation of this guaranty into the assignment, for which there was no consideration, does not affect the question. It was not essential to the assignment, and was, so far as its legal effect wms concerned, a separate instrument, and must be supported upon a sufficient consideration or treated as a nudum pactum.

“ It is quite clear that the plaintiff had no right to demand the guarantee by the terms of the original contract.”

It seems to us that the same may be said in reference to the right of the plaintiff to demand the execution and delivery of the mortgage of December 10th as a guarantee for the performance by the • defendant of his implied agreement in the acceptance of the deed. The rule seems well settled that the past transaction, complete in itself, by which the rights and obligations of the parties became fixed,, furnishes no good consideration to support a subsequent agreement by which one party to the. contract assumes new and increased obligation, without any new consideration.

In the case at bar the contract between the plaintiff and defend ant was complete in itself -when plaintiff conveyed his farm to the defendant, and received $1,000 of the consideration, and accepted the defendant’s agreement in the deed to pay the balance of $1,500 consideration upon the outstanding mortgage.

That agreement being complete in itself, it did not lie wdth the plaintiff subsequently to demand of the defendant collateral security for the performance of that agreement, and any collateral security given without new and adequate consideration moving from the plaintiff to the defendant would be a nudum pactum so> long as the original contract remained in full force, unchanged and unaffected by the new agreement.

It is quite true, as contended by the learned counsel for the respondent, that the defendant by taking a conveyance of the land which by its terms subjected him to the payment of the mortgage, and which he assumed and agreed to pay, became bound to indemnify his guarantor against liability for the mortgage debt. Comslock v. Drohan, 71 N. Y., 9.

But it is equally true that that obligation to indemnify grew out of, and the obligation of the defendant was created by, his original agreement to assume and pay the mortgage debt, and when that contract was consummated any additional agreement subsequently made to secure the plaintiff against his liability to-be binding must be upon a new and sufficient consideration.

If we are right in this conclusion, the other questions raised by the appellant on this appeal need not be examined.

Judgment reversed, and a new trial ordered, costs to abide the event.

Herrick, J., concurs in result.

Putnam, J. (dissenting.)

This action was brought to foreclose a mortgage executed by defendant to plaintiff. ' The latter had made and delivered to one Charles Parsons his bond for the sum of $1,500, secured by a mortgage upon real estate which, upon October 29, 1884, he sold to the defendant, who paid $1,000 in cash, and assumed the said Parsons bond and mortgage in payment of the purchase price of said premises. On December 10, 1889, without any new or other consideration, defendant executed the bond and mortgage set out in the complaint to secure the performance of his obligation to pay the Parsons bond and mortgage, and to secure plaintiff, and save him harmless of and from all liability upon or by virtue of the said last named mortgage, the payment of which has been assumed, as above stated, by the defendant.

It is urged by the appellant that the bond and mortgage upon which this action is brought were given without any legal consideration, and hence that the court below erred in directing judgment for the plaintiff. That by and under the provisions of the deed, executed by plaintiff and accepted by defendant, the latter assumed the payment of the Parsons bond and mortgage and became legally liable to pay the same as principal debtor. The contract between the parties being complete in itself plaintiff could not call as surety upon defendant afterwards for collateral security for the performance of his agreement, and any such security given without a new and adequate consideration was nudum pactumas long as the original contract remained in full force unaffected by the new agreement.

I am unable to concur in this position of defendant’s, believing-that the court below made the proper disposition of the case. The bond and mortgage upon which this action was brought were made to secure a concededly valid obligation existing in favor of plaintiff and against defendant when the mortgage was executed. This obligation was a sufficient consideration to sustain the ‘ bond and mortgage in an action brought by the mortgagee against the mortgagor. Jones on Mortgages, § 458 ; Willis v. Havens, 17 W. Dig., 373; Hiscock v. Phelps et al., 49 N. Y., 97 ; Buck et al. v. Axt, 85 Ind., 512 ; Knapp v. McGowan et al., 96 N. Y., 75-6-86; Young v. Guy, 23 Hun, 1-2 ; 87 N. Y., 457 ; Hewitt v. Powers, 84 Ind., 296; Cooley v. Hobart, 8 Iowa, 358; Wright v. Bundy, 11 Ind., 400-409 ; Wart v. Brayton, 5 id., 384, 8; Youngs' Adm’rx, et al. v. Wilson et al., 27 N. Y., 351; Louthain v. Miller, 85 Ind., 161.

This case is not like that of Vanderbilt v. Schreyer, 91 N. Y., 392, and kindred cases to which we are referred by the learned counsel for appellant. In the case cited, the defendant being by his contract legally bound to assign a bond and mortgage without a guarantee, in payment of an instalment due on a building contract, and the plaintiff refusing to accept such assignment without the guarantee, executed such guararitee with the assignment without being under any legal liability so to do and without any new consideration. The defendant in the case cited therefore took upon himself a new and distinct obligation without any new consideration. The cases and authorities referred to by Judge Ruger in Vanderbilt v. Schreyer, supra, are all to the same effect.

The distinction between such cases and that under consideration is clear. Here the bond and mortgage does not hold the defendant to any obligation he had not previously incurred by the acceptance of the deed from plaintiff, being given merely to se-cure such existing liability. Prior to the execution of the instruments in question defendant was legally bound to pay the Parsons bond and mortgage. He was under a liability to plaintiff to do so, and the mortgage in question was given to secure to the plaintiff the performance of said legal obligation. As held in Knapp v. McGowan, supra, 96 N. Y., 86, a debtor may mortgage his property to secure existing claims. The difference between this case and the authorities relied upon by appellant is that the mortgage in suit was given to secure a conceded liability, while in the authorities so cited by defendant a new and distinct liability was assumed without any new consideration.

I have examined the other cases cited by defendant but do not deem it necessary to discuss them. They do not support his contention.

The former ineffectual action brought by plaintiff for a specific performance is not a bar to the present one. The former and present actions are not inconsistent, each being brought to enforce the contract. Also as an execution was issued and returned unsatisfied on the judgment obtained in the former action 'the provisions of § 1630, Civil Code, do not prevent the plaintiff’s recovery. I - have examined the several exceptions taken by the defendant, mentioned in his brief. I do not think they need discussion, or that either of them require a reversal of the judgment. It seems to me, on the conceded or clearly established facts of the case, plaintiff was entitled to the judgment of foreclosure directed by the learned trial justice, and, therefore, that the judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, costs to abide event


author: Earl, J.

text:
    The People, Resp’ts, v. John Johnson, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Homicide—Premeditation.
    Defendant was a convict in Auburn state prison and had a fight with a fellow convict, in which he was the aggressor, in a room in which many convicts were at work. While "two keepers were removing him from the room he broke away, drew an open knife from his inside pocket, flourished it, and made a threatening remark. A convict named McDonald remarked to the keepers: “He has got a knife; he will kill some one; shoot him.” Defendant went toward him in a threatening attitude, and he took a stick and hit him on the head, and retreating, fell down. Defendant then advanced about fifteen feet upon Peck, another convict, and stabbed him with the knife. Peck then struck him with a broom handle and retreated, and the defendant followed him up, and thrusting the knife into his heart caused his instant death. The other coevicts surrounded him and assaulted Mm in order to subdue Mm, and he killed another convict and wounded others. Held, that while all this occupied but a few moments, there was time, although^ very brief, for deliberation and premeditation, and thus there was sufficient evidence for the jury of all the elements answering the statutory definition of murder in the first degree.
    2. Same—Evidence.
    Evidence of defendant’s murderous acts immediately after the killing of Peck was competent as parts of the same transaction, and as bearing upon motive, intent and other ingredients of the crime charged.
    Appeal from judgment of the Cayuga oyer and terminer, convicting defendant of the crime of murder in the first degree.

      Amasa J. Parker, for app’lt; A. P. Rich, for resp’ts.
   Earl, J.

The defendant was indicted for murdering Charles Peck on the 17th day of April last. He was tried upon the indictment and found guilty of murder in the first degree on the 17th day of May, and sentenced to suffer death during, the week commencing July 3d. He appealed to this court, and his counsel alleges various errors for which he contends that his client should have a new trial. His main contention is that there was not sufficient evidence of premeditation and deliberation to .authorize the conviction.

The defendant and Peck were both convicts in the Auburn state prison. On the morning of April 17th the defendant had a fight with a fellow convict, in which he was the aggressor, in a room in which many convicts were at work. The fight was interrupted by one of the keepers of the prison, and two of the keepers took the defendant and were removing him from the room. They reached a stairway with him leading down into one of the rooms, and there he resisted by taking hold of the banisters. Then he broke away from the keepers and stepped back into the room, drew an open knife from an inside pocket of his coat or vest, flourishing it and making; a threatening remark. At this time, we think,, the evidence satisfactorily shows that no assault was being made-upon him or threatened by any one. After he had drawn the knife and was holding it in his hand in a threatening manner, a convict by the name of McDonald, being near the place, made-the remark to the keepers, in substance, that “ he has got a knife; he will kill someone; shoot him.” The defendant then-went toward him in a threatening attitude, and he took a. stick and hit him on the head, and retreating, fell down. The-defendant then advanced about fifteeen feet upon Peck, and stabbed him with the knife. Peck then struck him with a broom handle and retreated, and the defendant followed him-, up, and thrusting the knife into his heart, caused his instant death. Then, and not until then, the other -convicts, in self-defense, and, for the purpose of subduing him, surrounded him and commenced to assault him, and in the affray he killed another convict", and wounded others.

There does not seem to have been any particular motive-prompting the defendant to kill Peck. He was evidently a reckless, brutal, passionate man, hating, as he testified, convicts, and determined on that account to kill any one who came in his way.. But it is not necessary to look for a motive where the crime is-plainly proved. He had concealed on his person the open knife, which we must assume he had no right under the prison discipline to have. Knowing it was a dangerous weapon, he rushed upon his victim and dealt the fatal blow. The jury were abundantly justified in finding that he intended the consequences of his-act. He drew the knife without provocation, being then in no-danger and threatened with no assault. He was in the hands of keepers who would protect him, and whose duty it was to protect him. He first tried to assault McDonald with the knife, and then advanced upon Peck, stabbed him once, and then, as Peck attempted to defend himself, and was retreating from him, he dealt, him another and fatal stroke. While all this occupied but a few moments, there was time, although very brief, for deliberation- and premeditation, and thus there was sufficient evidence for the; jury of all the elements answering the statutory definition of murder in the first degree. People v. Clark, 7 N. Y., 385 ; Donohue v. People, 56 id., 208; Leighton v. People, 88 id., 117; People v. Majone, 91 id., 211; People v. Hawkins, 109 id., 408; 16 St. Rep., 359.

The pretense of self-defense has not a shadow of satisfactory evidence to rest on. The defendant could have gone down the stairs instead of rushing back into the room, and he would have-been out of the way of the other convicts and out of danger from anyone. He knew that the keepers were competent and willing to protect him. He must have known that the only danger of: any assault upon him came from the drawing and flourishing of' the knife, and that his trouble with his fellow-convicts would end with the dropping of the murderous weapon. The homicide was-without provocation and wholly without justification.

The defendant complains that the trial judge erred in allowing;•evidence of his murderous acts immediately after the killing of Peck. The evidence was competent as parts of the same transaction, and as bearing upon motive, intent and other ingredients of the crime charged.

The charge of the judge was full and fair and the jury were properly instructed in the principles of law applicable to the case. JSTo part of it was open to exception, and to no portion of it do we see any ground of complaint.

Defendant’s counsel requested the judge to charge that there was no evidence of motive. All the circumstances were proved, •and it was for the jury to determine, if they could, whether there was any motive prompting the commission of the crime. The request embraced no rule or proposition of law. The prosecution is never bound to prove a motive for the commission of a crime. Motive furnishes corroboration in a case depending upon circumstantial evidence. But where there is no dispute about the killing and the other ingredients of the crime are established, motive is unimportant, and a conviction may be proper although no motive for the crime can be shown or discerned. It is one of the facts tending to the identification of the criminal, or characterizing the criminal act, but is never, as matter of law, essential. People v. Fish, 125 N. Y., 136; 34 St. Rep., 840; People v. Trezza, 125 N. Y., 740; 36 St. Rep., 149.

The defendant’s counsel asked the judge to charge “that if Johnson believed that the only way for him to defend himself when he broke away from the officers there at the head of the stairs was to use his knife, he was justified in doing so, and that he was not called upon to attempt escape; ” and the request was denied, the judge referring to his charge as made and refusing to alter it. He had properly and fully charged the jury as to the law of self-defense and justifiable homicide. We know of no authority which lays down the doctrine of self-defense as embraced in this request. It leaves out of consideration the rule that he was bound to retreat and flee from the threatened danger if he could. Even if he believed that the knife was the only means to defend himself, he had no right to resort to it and no occasion to make that defense until he had attempted the easy and ready mode of escape frqm any danger which was available. Besides, before one can justify the taking of life in self-defense, he must show that there was reasonable ground for believing that he was in great peril, and that the killing was necessary for his escape from the peril, and that no other safe means of escape was open to him. Penal Code, § 205; Shorter v. People, 2 N. Y., 195 ; People v. Sullivan, 7 id., 396; People v. Carlton, 115 id., 618; 26 St. Rep., 434.

The judge was also requested to charge “ that if the jury believed that after the defendant was struck by McDonald upon the head with a club, he was dazed or crazed, or his mind became in such a condition that he did not realize what he did after that, that he is not responsible for his acts, and that they must acquit him.” The judge replied to this : “ Yes, gentlemen, if you reach the conclusion that the blow which McDonald struck affected his mind so that he did not know right from wrong, and did not know the nature of the act that he was doing, then he would not be guilty, and could not be convicted; but you must be satisfied, gentlemen, from all the evidence in the case that that was the condition of his mind; that he did not know the nature of the act which he was doing. ”

The defendant’s counsel then excepted to the qualification of his request, and asked the judge to charge that “ if he was in such a dazed condition that he did not know what he was doing, or did not realize what he was doing, that he is not guilty.” To this the judge replied: “ If it affected his mind so that he did not know the nature of the act, I charge that proposition.” The request was a proper one as an abstract proposition of law, with but little if any support in the evidence. But the judge, in substance, charged it, and it cannot be doubted that the defendant received from the language used by the judge the full benefit of it.

No other exceptions or phases of this case require particular attention. The defendant had a fair trial and was ably defended. We see no reason for granting him a new trial, and his conviction must be affirmed.

Judgment affirmed.

All concur, except Gray, J., not voting.


author: Gray, J.

text:
    The Casco National Bank, Resp’t, v. John Clark et al., App’lts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Bills and notes—Addition of official title to signature.
    Defendants made their promissory note as follows : “ Brooklyn, N. Y., Aug. 2,1890, $7,500. Three months after date we promise to pay to the order of Clark & Chaplin Ice Company, seventy-five hundred dollars at Mechanics’ Bank, value received. John Clark, pres’t; E. H. Close, ■ treas.” Across the end of the note was printed “ Ridgewood Ice Co.”' The note was given in payment for ice sold to said company and discounted by plaintiff before its maturity. Held, that the language “we promise to pay ” and the signatures of Clark and Close were perfectly consistent with an assumption cy them of the company’s debt and justified a, judgment against them thereon.
    2. Same—Banks—Notice to officer.
    If one of the plaintiff’s officers did have knowledge, whether individual ly or as a director of the payee company, that the paper was made and intended as a corporate note, his failure to so state to the bank could not prejudice it.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon decision of the court after a trial without a jury.

      Henry Daily, Jr., for app’lts; Edward B. Merrill, for resp’t.

       Affirming 46 St. Rep., 162.

   Gray, J.

The action is upon a promissory note, in the following form, viz.:

S JS
Brooklyn, N. Y., Aug. 2, 1890.
$7,500. Three months after date, we promise to pay to the order of Clark & Chaplin Ice Company, seventy-five hundred dollars at Mechanics’ Bank: value received.
JOHN CLARK, Prest.
E. H. Close, Treas.

It was delivered in payment for ice sold by the payee company to the Ridgewood Ice Company under a contract between those companies, and was discounted by the plaintiff for the payee, before its maturity. The appellants Clark and Close appearing as makers upon the note, the one describing himself as “ Prest.” and the other as “ Treas.,” were made individually defendants. They defended on the ground that they had made the note as officers of the Ridgewood Ice Company and did not become personally liable thereby for the debt represented.

Where a negotiable promissory note has been given for the payment of a debt contracted by a corporation, and the language of the promise does not disclose the corporate obligation, and the signatures to the paper .are in the names of individuals, a holder taking bona fide and without notice of the circumstances of its making is entitled to hold the note as the personal undertaking of its signers, notwithstanding they affix to their names the title of an office. Such an affix will be regarded as descriptive of the persons and not of the character of the liability. Unless the promise purports to be by the corporation, it is • that of the persons who subscribe to it; and the fact of adding to their names an abbreviation of some official title has no legal signification as qualifying their obligation, and imposes no obligation upon the corporation whose officers they may be. This must be regarded as the long and well-settled rule. Byles on Bills, §§ 86, 37, 71; Pentz v. Stanton, 10 Wend., 271; Taft v. Brewster, 9 Johns., 334; Hills v. Bannister, 8 Cow., 31; Moss v. Livingston, 4 N. Y., 208; De Witt v. Walton, 9 id., 571; Bottomley v. Fisher, 1 Hurlst. & Colt., 211. It is founded in the general principle that in a contract every material thing must be definitely expressed, and not left to conjecture. Unless the language creates, or fairly implies, the undertaking of the corporation, if the purpose is equivocal, the obligation is that of its apparent makers.

It was said in Briggs v. Partridge, 64 N. Y., 357, 363, that persons taking negotiable instruments are presumed to1 take them on the credit of the parties whose names appear upon them, and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent. It may be perfectly true, if there is proof that the holder of negotiable paper was aware, when he received it, of the facts and circumstances connected with its making, and knew that it was intended and delivered as a. corporate obligation only, that the persons signing it in this manner could not be held individually liable. Such knowledge might be imputable from the language of the paper, in connection with other circumstances, as in the case of Mott v. Hicks, 1 Cow., 513, where the note read, “ the president and directors promise to pay,” and was subscribed by the defendant as “ president.” The court held that that was sufficient to distinguish the case from Taft v. Brewster, supra, and made it evident that no personal engagement was entered into or intended. Much stress was placed in that case upon the proof that the plaintiff was intimately acquainted with the transaction out of which arose the giving of the corporate obligation.

In the case of Bank of Genesee v. Patchin Bank, 19 N. Y., 312, referred to by the appellants’ counsel, the action was against the defendant to hold it as the indorser of a bill of exchange, drawn to the order of “ S. B. Stokes, Cas.,” and indorsed in the same words. The plaintiff bank was advised, at the time of discounting the bill, by the president of the Patchin Bank, that Stokes was its cashier, and that he had been directed to send it in for discount, and Stokes forwarded it in an official way to the plaintiff. It was held that the Patchin Bank was liable, because the agency of the cashier in the matter was communicated to the knowledge of the plaintiff as well as apparent.

Incidentally, it was said that the same strictness is not required in the execution of commercial paper as between banks that is, in other respects, between individuals.

In the absence of competent evidence showing or charging knowledge in the holder of negotiable paper as to the character of the obligation, the established and safe rule must be regarded to be that it is the agreement of its ostensible maker and not of some other party, neither disclosed by the language, nor in the manner of execution. In this case the language is “ we promise to pay,” and the signatures by the defendants Clark and Close are perfectly consistent with an assumption by them of the company’s debt.

The appearance upon the margin of the paper of the printed name Ridgewood Ice Company ” was not a fact carrying any presumption that the note was, or was intended to be, one by that company.

It was competent for its officers to obligate themselves personally, for any reason satisfactory to themselves, and, apparently to the world,, they did so by the language of the note, which the mere use of a blank form of note having upon its margin the name of their company was insufficient to negative.

In order to obviate the effect of the rule we have discussed, the appellants proved that Winslow, a director of the payee company, was also a director in the plaintiff bank at the time when the note was discounted, and it was argued that the knowledge chargeable to him, as director of the former company, was imputable .to the plaintiff. But that fact is insufficient to charge the plaintiff with knowledge of the character of the obligation. He in no sense represented, or acted for the bank in the transaction, and whatever his knowledge respecting the note, it will not be imputable to the bank. National Bank v. Norton, 1 Hill, 572, 578; Mayor, etc. v. Tenth National Bank, 111 N. Y., 446, 457; 19 St. Rep., 133; Farmers' etc., Bank v. Payne, 25 Conn., 444. He was but one of the plaintiff’s directors, who could only act as a board. National Bank v. Norton, supra. If lie knew the fact that these were not individual but corporate notes, we cannot presume that he communicated that knowledge to the board. An officer’s knowledge, derived as an individual, and not while acting officially for the bank, cannot operate to the prejudice of the latter. Bank of U. S. v. Davis, 2 Hill, 451. The knowledge with which the bank as his principal would be deemed chargeable, so as to affect it, would be where, as one of the board of directors and participating in the discount of the paper, he had acted affirmatively, or fraudulently, with respect to it, as in the case of Bank v. Davis, supra, by a fraudulent perversion of the bills from the •object for which drawn, or as in Holden v. New York & Erie Bk., 72 N. Y., 286, where the president of the bank, who represented it in all the transactions, was engaged in a fraudulent scheme of conversion. It was said in the latter case that the knowledge of the president, as an individual or as an executor, was not imputable to the bank merely because he was the president, but because, when it acted through him as president, in any transaction where that knowledge was material and applicable, it ■acted through an agent.

The rule may be stated, generally, to be that where a director or an officer has knowledge of material facts respecting a proposed transaction which his relations to it, as representing the bank, have given him, then, as it becomes his official duty to communicate that knowledge to the bank, he will be presumed to have ■done so, and his knowledge will then be imputed to the bank. But no such duty can be deemed to have existed in this case, where the appellants have made and delivered a promissory note purporting to be their individual promise. If one of the plaintiff’s officers did have knowledge, whether individually or as a director ■of the Clark & Chaplin Company is not material, that the paper was made and intended as a corporate note, his failure to so state to the bank could not prejudice it. It was in no sense incumbent upon him, assuming that he actually participated in the discount (a fact not shown), to explain that the note was the obligation of the Ridgewood Company and not of the persons who appeared as its makers. He was under no duty to these persons to explain their acts, and the law would not imply any. At most, it would be merely a case of knowledge acquired by a director of facts not material to the transaction of discount by the plaintiff, and which he was under no obligation to communicate. No other questions require discussion, and the judgment rendered below should be affirmed, with costs.

All concur.


text:
    The Merchants’ National Bank of Gardner, Maine, Resp’t, v. John Clark et al., Impl’d, App’lts.

      (Court of Appeals,

      Filed October 3, 1893.)

    .1. Banks—Knowledge of offices.
    Where it is sought* to bind a, bank by the knowledge of* its officer as to the fact that a note discounted was the promise of a corporation and not of the individuals who signed it, it is essential that the knowledge to he attributed to bank should have been acquired by its officer, not casually and through his individual relations to the other parties, but in an official capacity, and because of a necessity for him to inquire and to know the facts in behalf of the bank.
    2. Same.
    Because the president of a bank received such notes from the company of which he was a director, to be ofEered for discount by the board of his bank, he is under no obligation to state to the board what his opinion is as to the liability of the parties appearing as makers upon the notes.
    3. Same—Evidence.
    While evidence to show what took place at the time when notes were offered and received for discount, in order to prove knowledge by the bank of the facts, might be proper, subsequent admissions and declarations by individual directors, or other officers, would be of no effect to bind the bank, and are inadmissible.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon verdict.

      Henry Daily, Jr., for app’lts; Edward B. Merrill, for resp’t.

       Affirming 45 St. Rep., 639.

   Gray, J.

The promissory notes sued upon in this case were in the same form as was the note in the case of the Casco National Bank against the same defendants, decided at this term. The reasons given for the affirmance of the judgment in that case apply to the present. These appellants, however, claim that there was error committed by the trial court in the exclusion of evidence offered for the purpose of showing that the plaintiff knew, at the time it discounted the notes, that they were the notes of the Bidgewood Ice Company, and not the notes of these defendants.

It appears that at that time Dennis, who was a director of the Clark & Chaplin Ice Company, the payee in the notes, and which procured them to be discounted, was also the president of the plaintiff. The notes were handed to him in the company’s office. He was not examinéd, and it was not shown that he was conversant with the transaction out of which the note arose, or how it was made; but assuming that he was, his knowledge was not attributable to the plaintiff. When it is sought to prove that the plaintiff took the note knowing it to be the promise of the Bidgewood Company, and not that of the appellants, it is essential that the knowledge to be 'attributed to the plaintiff should have been acquired by its officer, not casually and through his individual relations to the other parties, but in an official capacity, and because of a necessity for him to inquire and to know the facts in behalf of the bank. That was not this case. Dennis, receiving these notes from the company of which he was a director, to be offered for discount by the board of his bank, was under no obligation to state to the board what his opinion was as to the liability of the parties appearing as maker upon the notes.

The questions which were put for the purpose of showing a knowledge by plaintiff that these were the notes of the Bidgewood Company were addressed to the defendant Close, and related to conversations had with Dennis, or with any other officer of the plaintiff, before the commencement of the suit, with regard to the notes. The inquiry was whether, in any of these con-versations, the witness had been told that at the. time the plaintiff received the notes it knew they were the notes of the Ridgewood Company. The exclusion of such evidence was perfectly proper. A party to a promissory note should not be permitted to invalidate his written agreement by any testimony of that hearsay nature. If the statements, sought to be elicited in the testimony, had been made to Close, they would have been quite incompetent to prejudice the rights of the bank. While evidence to show what took place at the time when the notes were offered and received for discount, in order to prove knowledge by the bank of the facts, might be proper, subsequent admissions and declarations by individual directors, or other officers, would be of no effect to bind the bank. What they may have said, not being under oath, cannot be evidence against the bank; and upon that principle, as because the statements were not made in strict relation to any agency for the bank, such evidence is inadmissible. The principle of the exclusion is the same as obtains in the ordinary relation of principal and agent. The statements of the latter are inadmissible to affect the former, unless in respect to a transaction in which he is authorized to appear for the principal, and he has no authority to bind his principal by any statements as to bygone transactions. Hearsay evidence of this character is only permissible when it relates to statements by the agent which he was authorized by his principal to make, or to statements by him which constitute part of the transaction which is at issue between the parties. 1 Morawetz on Priv. Corns., § 540a.

The judgment should be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    Maria Anna Vogel, Resp't, v. Maria Lucia Lehritter et al., Resp’ts, and Charles Lehritter, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    Will—Foreign—Execution.
    The will in question, purporting to devise real estate in this state, was executed by an American citizen while domiciled in a foreign country, in accordance with its law, as follows: The testatrix subscribed the will in the presence of the notary alone, and it was then inclosed in an envelope, which was sealed. The testatrix then declared, in the presence of two witnesses, that the envelope contained her last will, and a statement to that effect upon the envelope was signed by the notary and the witnesses, and the same statement upon a separate paper was signed by the testatrix, witnesses and notary, and the paper deposited with the notary. Held, that the final writing was not a will or codicil and that testatrix left no will executed as the statute demands.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon report of referee.
    This action was brought for the purpose of obtaining a partition of two lots in West Thirty-eighth street in the city of Hew .York, which formerly belonged to one Maria Anna Lehritter, who died in Germany, January 29, 1890. The complaint alleged that the plaintiii, among others, was an heir at law of the former owner, Mrs. Lehritter, and that she had died intestate, and that a document which had been presented as her last will and testament had not been duly executed and published as required by the statute of New York, and in consequence thereof the real estate of which she died seized had descended to her heirs at law. The defendant Charles Lehritter denied that the deceased had died intestate, and he alleged that she had duly executed and published her will in the city of Wuerzburg, Bavaria, Germany, on or about the 18th day of October, 1882. The whole controversy arises over the question whether the facts show a due execution and publication of a will by Mrs. Lehritter in Germany at the time and place stated. The action was referred to a referee, who found that the paper was not duly executed and published, and that Mrs. Lehritter had died intestate, and judgment for partition, etc., was, therefore, ordered.
    If tire paper writing were a duly executed and published will, then the defendant Charles Lehritter would take as devisee the real property which was described in the complaint; otherwise he would take nothing. He, therefore, appealed to the general term of the supreme court in- the first department from the judgment for a partition entered upon the report of the referee. The supreme court affirmed that judgment, and he then appealed to this court The evidence upon which the case was decided is undisputed, and, so- far as material to this question it consists of facts agreed upon by the parties.
    By this statement of facts it appears that Mrs. Lehritter was a citizen of New York at the time of her death, and was then domiciled in Germany, and was the owner of the real estate mentioned in the complaint. She left certain heirs at law who were descendants of her sisters and brother. The defendant Charles Lehritter was- not one of such heirs, and his only claim depended upon proving the will set up in the pleadings. The statement in the third and following paragraphs then proceeds to give in detail all the facts relating to the drawing, execution and publication of the alleged will, as follows:

      Third. On the 13th day of October, 1882, at Wuerzburg, Bavaria, Ulrich Huth, royal Bavarian notary, a public official, at the request of the said Mary Anna Lehritter, she being then domiciled in Bavaria, formulated, in the German language, a paper writing, which having been read to and understood by her, she thereupon subscribed her signature thereto,, at the end of the said paper writing, in the presence of the said Ulrich. Huth only, royal notary as aforesaid.

      Fourth. The following is a correct translation into the English language of the said- paper writing:
    “Mr Last Will.
    “1. Considering my circumstances as to property, I possess here a house and lot with appurtenances in Sarid'erglacis, Number 15t¿-, of the approximate value of (30,000 M.) thirty thousand marks, and personal property of the approximate value of (6,000 M.) six thousand marks.
    “ Furthermore, I possess in New York two houses and lots with appurtenances, Nos. 807 and 309 West Thirty-eighth street, between Eighth and Ninth avenues; in addition to which, the lots are also my property, of the approximate value of ($12,000) twelve thousand dollars.
    “ Furthermore, I have mortgages in America, loaned upon different pieces of property, of the total approximate value of nineteen thousand seven hundred dollars ($19,700).
    “II. I appoint as my sole and universal heir and legatee of what will hereafter be my estate, Maria Anna Lehritter, daughter of the tailor Nickolaus Lehritter, my brother-in-law, and of my niece, his wife Maria Lucia Lehritter; she was born in New York on the sixth day of January, 1861; she was adopted and educated by myself and nay late husband, Johann Adam Lehritter, as our only child, and also resides at the present time with me.
    “ She, my principal legatee, shall, however, be bound to pay the following legacies:
    “ The following persons shall receive as follows:
    “ 1. Karl Lehritter, born Edelmann, dealer in wines in New York, the two houses and lots in New York, as more particularly described above.
    “ 2. Johann Lehritter, born Edelmann, brother of Karl Lehritter, ($2,000) two thousand dollars. His present place of residence is unknown to me.
    “ 3. My brother-in-law, Nickolaus Lehritter, tailor in New York, ($1,000) one thousand dollars.
    “ 4. My neice, the wife of the former, Maria Lucia, also ($1,000) one thousand dollars.
    “ 5. Their three children, at this time infants, to wit: (a) Dory;; (6) Willy; (c) Karry (Lehritter), each of these ($1,000) one thous- and dollars. This legacy of three thousand dollars shall be separate property of the legatees and their parents shall have theusufruct thereof until the end of the twenty-first year of the-life of these children, up to which time .these legacies shall also, be m uttially inheritable among the children.
    “ 6. Peter Lehritter, painter, my brother-in-law, ($2,000) two thousand dollars.
    “7. To the three sons of Dorothea Welz, wife of a carpenter in Bobstadt, District of Boxberg, in Baden, viz., Karl, Frederick and William (Welz) each (1,000 M.), one thousand marks.
    “ 8. Margaretha Heer, born Boetzel, my neice, in Laudenbach, District Mergentheim, (1,000 M.), one thousand marks.
    “ This is my free well considered last will, which I have myself read and signed in execution.
    “ Wberzburg, the thirteenth day of October, one thousand eight hundred and eighty-two.
    “ Maria Anna Lehritter.”
    That the real property described in the foregoing paper writing-as “ 307 and 309 West Thirty-eight street, between Eighth and Ninth avenues,” in the city of New York, is the same as that described in the first subdivision hereof.

      Fifth. That the said paper writing described in subdivision fourth hereof never had upon any part of it the signature of any person or persons whatsoever, except the signature of Maria Anna Lehritter, as aforesaid, and that such signature was subscribed'at the end of such paper writing.

      Sixth. That immediately thereafter, and in the presence of the said Huth, the said paper writing described in subdivision fourth hereof was, without any alteration whatever, placed in an envelope by the said Maria Anna Lehritter, deceased, which said envelope was thereupon immediately sealed up by her with her seal, which bore the letters “M. A. L., New York.” That said envelope never contained inclosed in it anything other than the paper writing described in subdivision fourth hereof. That immediately after such sealing had been completed there were written by the said Huth on the outside of said envelope the following words: “Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here. The undersigned Boyal Notary hereby certifies by his signature and that of the two witnesses who were called in, with the addition of his official seal, that, according to the oral declaration of Mrs. Maria Anna Lehritter, there is contained in this envelope her last will.
    “Wuerzburg, the 13th of October, 1882.”
    Which words were thereafter and before signature read aloud to the said Maria Anna Lehritter and the witnesses hereinafter named.

      Seventh. Immediately thereafter, and in the presence and hearing of Johann Georg Gutbrod and Franz Jaeger, two competent witnesses, the said Maria Anna Lehritter handed the said envelope containing the aforesaid paper writing, and inscribed and sealed up as aforesaid, to the said Huth, and at the same time made the following declaration orally:
    “In the envelope which I have just handed you there is contained my last will.
    “ In case this should not be legal as a last will and testament, I wish to have it carried into effect as a codicil, gift causa mortis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary on the fourteenth of August, one thousand eight hundred and seventy-five, and declare the same to be revoked, and null and void.”

      Eighth. Immediately thereafter, and at the request of the testatrix, and in her presence and in the presence of each other, the said Huth, Gutbrod and Jaeger did sign their names as witnesses on the said envelope at the end of the statement set forth in subdivision sixth, and the said Huth did also add his official seal to his signature. The said envelope contained no other inscription, signature or writing than those hereinbefore mentioned.

      Ninth. Immediately thereafter, and in the presence of all the persons before named, the said notary drew the following instrument:

      “ To-day, on the thirteenth day of October, one thousand eight hundred and eighty-two (13 October, 1882), there appeared before me, Ulrich Ruth, Royal Bavarian notary, with an office at Wuerzburg, in my office at this place, Mrs. Maria Anna Lehritter, born Boetzel, known to me with respect to her name, position and residence, and requested me to receive upon deposit her last will.
    “After I had then procured two documentary witnesses in the persons of the two men, known to me with respect to their names, position and residence:
    “1. Johann Greorg Grutbrod, grinder;
    “2. Franz Jaeger, blacksmith,
    both of this place, against whom there were, according to their own statements, no objections which made them incapable of being witnesses, and had also convinced myself by a suitable conversation with Mrs. Maria Anna Lehritter, of her intellectual capacity to dispose of her property, Mrs. Maria Anna Lehritter handed to me an envelope with the superscription, ‘ Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here,’ sealed once with a private seal, which bore the letters, ‘ M. A. L., Mew York,’ and thereupon declared orally:
    “‘In the envelope which I have just handed you there is contained my last will. In case this should not be legal, I wish to have it carried into effect as a codicil, gift causa mortis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary on the fourteenth day of August, one thousand eight hundred and seventy-five, and declare the same to be revoked and "null and void.’
    “ Thereupon, I, the notary, through my signature with the above, the witnesses, and with the addition of my. official seal upon the envelope, did certify that according to the oral declaration of Maria Anna Lehritter in this envelope there is contained her last will, and here received it among my official documents.
    “About these proceedings, I, the notary, have drawn this present document, read it to Mrs. Maria Anna Lehritter, and both the witnesses, in the uninterrupted presence of all of whom, with me, the notary, all these proceedings had taken place, and have signed it in company with all.
    “ In testimony thereof.
    “ Maria' Anna Lehritter,
    “JOH. GrEORG GrUTBROD,
    “Franz Jaeger
    “ [l. s.] (Signed) Ruth,

      “Royal Notary,"

      Tenth. That the statements in the said notarial instrument of what said notary and the said Maria Anna Lehritter, deceased, and the said Grutbrod and Jaeger severally did or said, are true, and that the paper writing which the said Maria Anna Lehritter, deceased, then requested the said notary to receive on deposit as her last will is the same writing, without any addition or change, then or at any other time, which is described in subdivision fourth hereof, and which was contained in the aforesaid envelope, which was at that .time sealed up, written upon and indorsed as aforesaid.

      Eleventh. That the said instrument described in subdivision ninth hereof was subscribed by the said Maria Anna Lebritter, Grutbrod, Jaeger and Huth .at the end thereof, in the presence of each other, and all the statements therein set forth as having been made by the said Maria Anna Lehritter were made to and in the presence and hearing of the said Huth, Jaeger and Grutbrod, and that immediately thereafter and in the presence of the said Maria Anna Lehritter, Grutbrod and Jaeger, the .said Huth placed the said .envelope, while sealed up and inclosing the paper writing described in subdivision fourth herein, loosely between the leaves of the said instrument, the said instrument being a separate sheet of paper folded in the middle, and that immediately thereupon and in the presence of the persons aforesaid, the said notary -took the-said instrument with the said envelope and contents placed between its leaves as aforesaid, and deposited the same among his official documents in a place in the office of the said notary kept for that purpose, where all the said papers remained undisturbed until after the death of the testatrix. That after the death of -the testatrix -all the said papers were so found by the said notary, the said envelope being found sealed up with its contents and superscriptions intact and still lying separately and loosely between the leaves of the said instrument That after the death of the. testatrix the.said Huth took the said .envelope containing the said paper writing from and between the leaves of the said instrument ' and made a certified copy of the said instrument, and personally deposited with the Boyal District Court Humber I in Wuerzburg, Bavaria, the said envelope, sealed up as aforesaid and containing the said paper writing, .together with a copy of the said instrument certified by himself as notary as aforesaid, and that .he kept in his possession the original of said instrument.

      Twelfth. The said paper writing first aforesaid as signed under the circumstances hereinbefore stated, with the inclosing and sealing thereof in an envelope, and the making of the indorsement on such envelope with the accompanying circumstances, and the making and signing of the instrument set forth in-subdivision ninth hereof, as hereinbefore stated, constituted the making a valid will for the -passing of the title to real estate situated in Bavaria; it has there been admitted to probate, none of said writings can be removed from Bavaria where they now remain, and none of the originals can be produced, such production being contrary to the laws of Bavaria. • All the transactions hereinbefore stated took place at one meeting of the persons herein named, said meeting being held solely for the purpose described. The said Huth was a public officer of Bavaria, and as such .authorized by the laws thereof to perform fall the.acts hereinbefore stated to have been by. him performed, and such performance having been .in complianee with the laws of Bavaria in relation to the execution, custody, authentication and proof of wills and papers relating thereto.

      Thirteenth. Nothing else took place and nothing else was done at any time by or on the part of any person herein mentioned germane to the issues in this action other than is recited in this stipulation. All statements herein contained are to be taken as relating only to questions of fact and not as being conclusions of law.

      Fourteenth. At the date of all the transactions hereinbefore set forth the said Maria Anna Lehritter was of sound mind and of full testamentary capacity.

      Fifteenth. The person described as “ Karl Lehritter, born Edelmann, dealer in wines in New York,” in the paper writing first, described, is the defendant Charles Lehritter in this action. Maria, Anna Lehritter, who is described herein, is the same person who is called by that name in the complaint in this action ; the person described in the paper writing in subdivision fourth hereof as " Maria Anna Lehritter, daughter of the tailor, Nickolaus Lehritter,” is the plaintiff herein, Maria Anna Vogel; the defendant Sebastian Heer is the husband of the defendant Margaretha Heer; and the defendant Otto A. Vogel is the husband of the said Maria Anna Vogel, and the plaintiff and all of the defendants are over the age of twenty-one years, and are of sound mind.
    Dated New York, November 23, 1891.

      Robert E. Deyo, for app’lt; Richard M. Bruno, for rsep’ts.

       Affirming 46 St. Rep., 340.

   Peckham, J.

We are entirely satisfied with the opinion of the referee in this case, and think it unnecessary to ourselves add anything further than to notice very briefly one or two criticisms-that were made upon it by counsel' for the appellant in the course of the argument here. It is said the vital point in the case is whether the final writing (contained in the foregoing ninth subdivision of the statement of facts) was executed as a will or codicil, and this point the counsel for the appellant says was wholly ignored by the referee.

On the contrary, we think he not only did not ignore it, but that he decided it in a way which was opposed to the claim that the final writing ever was executed either as a will or codicil. He distinctly said that the final writing certifies to the formalities which attended the identification of the will which was in the envelope, after its execution and its deposit in a public office, and to nothing more. And we are of opinion that in this respect the learned referee was clearly right. There is no occasion to here specify and minutely examine how the final writing was executed, for it is plainly stated, as is also the purpose thereof, in the writing itself.

There is nothing in that paper that shows that it was executed as a will or as a codicil, or that it was in fact any part or parcel of the paper wrapped in the envelope and declared by the testatrix to be her will- I think the evidence here shows beyond all controversy that the testatrix supposed she had executed her wii] and that it was wrapped up in an envelope, and that everything done subsequently was done in the course of an attempt to formally and, so to speak, officially identify such paper and to deposit it in the hands of the public notary as the will of the testatrix. I am unable to see how any other construction can be placed upon the plain language of the ninth subdivision of the statement alluded to. The counsel for the appellant admits that if this final writing were not executed as a will or codicil, then Mrs. Lehritter died intestate and the judgment must be affirmed.

Even though the statute does not prescribe what shall be the terms in which a publication of a will shall be made or what shall be the terms of a request made to the witnesses to become such, yet there must be an acknowledgment or publication and there must be a request, and where the only evidence of either is contained in written papers submitted to the court, if those papers do not show a publication or request, the evidence is insufficient to prove the alleged will.

Regarding the paper in the envelope as a separate document, and confessedly there is not a particle of evidence of a proper subscription before witnesses. On the contrary, the evidence shows a non-compliance with the requisites of the statute in such case.

Viewing the papers outside the document in the envelope, and it is plain they cannot be regarded as a will or as a part thereof, because they conclusively appear to be something else.

It maybe assumed that the testatrix appeared before the notary for the purpose of making her will and depositing it with him. The written evidence submitted to the court shows without contradiction that she signed a paper as her will and deposited it in the envelope, and everything done thereafter by her or the notary, so far as the writing shows, was done for the purpose of identification alone.

It is said that an unattested instrument of the character of a testamentary disposition may be so identified by a subsequent will ■or codicil as to be regarded as incorporated with and forming a part of the will or codicil. Brown v. Clark, 77 N. Y., 369, 378. Hence the claim that the paper in the envelope is thus incorporated with and does form a part of the final writing, and all the papers are to be construed as forming the will of the testatrix. The claim might be well founded if the final writing had been executed as a will. In the case of Brown v. Clark, supra, the testatrix, while an unmarried woman, had duly made her will. She subsequently married and thereby ■ revoked it. After that time she duly executed a codicil to such will, in which she referred to it, and in the body of the codicil she declared her intention to thereby re-publisb, re-affirm and adopt the will, as modified by the codicil, as her present will, in the same manner as if then executed by her, and then followed this clause: “ Which codicil, in connection with and amendment of my will, I now publish and declare together as constituting my last will and testament.” The codicil was duly executed with all the requirements of the law. This court held that the execution of the codicil was a republication of the will, and it and the codicil were to be considered together as the will of the testatrix. The evidence in that case left no room for doubt (the court said) that the main purpose of the testatrix in making the codicil was to re-establish the will, which had been revoked by her marriage.

No such fact appears here, and on the contrary it does ap.pear that there was an absence of any testamentary intent as to the final paper when the signatures were placed upon it.

It may be here admitted, as claimed by appellant’s counsel, that an invalid subscription is equivalent to no subscription, and the paper in the envelope described as. a will may, therefore, be regarded as unsigned, and still we cannot see that the final writing can ever become a part of the will, or that the signature of Mrs. Lehritter to the final writing can ever be regarded as her signature at the end of her will. Nor can we find any evidence of a request on her part to any witness to become such. It is perfectly evident, from its contents, that the final writing is not, and was not intended to be, any part of her will or codicil, and her signature was not placed at the end of the writing for the purpose or with the intent of thereby subscribing such an instrument. In the final writing the testatrix declares orally that she has just handed the notary her last will, and if it should not be legal she wishes to have it carried into effect as a codicil, gift causa mortis or in any legal way possible. This does not make the final writing a will or codicil. It is but one of the formalities observed by the parties in the coarse of identifying the document contained in the envelope as the will of the testatrix, and to call the final writing itself a codicil and a republication of the will would be to make of the means for identifying another paper that very paper itself.

, In any view that we can take of the subject, we think the order of the general term was right, and that it should be affirmed, with costs.

All concur.