author: Parker, J.

text:
    Thomas Maddock, Resp’t, v. Henry A. Root, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Evidence—Letter written by clerk.
    Where it is made to appear that defendant’s clerk was accustomed to write letters by his direction, a letter written by him while in defendant’s employ is properly received in evidence, although the clerk had no recollection of special direction to write the letter, it having also been made to appear that defendant had recognized the letter by a subsequent one in Ms own handwriting.

      2. COBFOBATIONS—PbOOF OF INCOBFOBATIOK.
    The fact of incorporation, when material and not merely collateral, cannot be proved by parol testimony.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.

      Hatch & Wickes, for app’lt; Albert H. Atterbury, for resp’t.
   Parker, J.

The judgment under review awards to the plain 1 tiff the value of ozone generators which it is alleged he manufactured at the special instance and request of defendant, and delivered, by his direction, to the United States Ozone Company. Defendant does not dispute that plaintiff manufactured the goods and delivered them to the ozone company, or that they were not in number or of the value averred in the complaint, but he did deny, both by his pleading and his deposition read on the trial, that the goods were purchased by him individually ; his contention being that he was an officer of the United States Ozone Company, and in that capacity, as the plaintiff well knew, ordered the generators of the plaintiff. While he denied making any promise whatever to personally pay for the goods, he insisted that the promise which the testimony on the part of the plaintiff tended to prove was a promise to answer for the debt of a third party, not in writing and subscribed by him, and therefore void because in contravention of the statute of frauds. But the evidence was not of such a character as to have warranted the court in dismissing the complaint at the close of plaintiff’s case, or after the testimony was all in, on either ground. Defendant’s denial of a promise to pay plaintiff was contradicted by the plaintiff -and his son ; therefore, as to it, a question of fact was presented. Nor could it properly have been determined, as a matter of law, that the promise alleged to have been made was in violation of the statute. There were circumstances tending to show that the plaintiff regarded the United States Ozone Company as the principal debtor: (1) The account was kept in the name of the ozone company on plaintiff’s books. (2) Bills were rendered to the ozone company at their place of business, where the goods were also delivered. (3) No bill or account was ever presented to Root in which he was named as the debtor. On the other hand, plaintiff testified that when he first began to manufacture the generators he did so upon the written guaranty of one Covington, who paid the bills for a time, and then withdrew his guaranty. Plaintiff having refused to furnish any more goods, he was subsequently taken, by a person who was styled the president of the United States Ozone Company, to the defendant, and there such conversation was had, if plaintiff’s version of it be true, as created an agreement by which defendant became bound to pay for generators to be delivered by the plaintiff to the company. This testimony has some measure of support in letters subsequently written by Root to the plaintiff, and also from the fact that the payments thereafter made were by means of Root's individual checks. As to the circumstance of keeping the account in the name of the company instead of Root’s, it is urged, by way of explanation, that plaintiff kept the account in the name of the company when relying for payment upon the written guaranty of Covington, and the form of keeping the account was not changed after the agreement with Eoot, as the goods were to be delivered to the same party and place as before. There seems to be no explanation of plaintiff’s having rendered his bills to the company, other than Eoot directed him to deliver the goods to it, and have made out and sent bills to correspond. The reason assigned for not sending the bills to the defendant in which he was personally charged as the debtor, is that there was never any dispute about the amount due to the plaintiff, defendant having promised, after the goods were all delivered, to pay, or see that it should be paid. From the brief reference to the evidence which we have made, it is apparent that it was for the jury to say (1) whether defendant made any promise at all to pay the plaintiff; (2) if he did, whether his promise was an original undertaking to become solely responsible for such goods as the plaintiff should thereafter deliver to the company, or a promise intended and understood bythe parties to be collateral to the principal contract, the company to be the principal debtor, and the defendant a guarantor of performance on its part. These questions were clearly submitted to the jury in a charge to which no exception was taken.

There remains, therefore, for further consideration, only the exceptions taken to the rulings of the court in the admission or rejection of evidence. We shall discuss the questions presented by two of them. Against the defendant’s objection, the court- received in evidence the following letter in the handwriting of Connolly, a clerk of defendant:

Dec. 17, 1880.
“ Dear Sir : Why don’t you send me the report of how many machines you have in process of construction? Please put in works at once 1,000 more generators.
“ Tours, truly,
“H. A. Eoot,
“Mr. Thomas Haddock.
“Per Connolly.”

When received, it had been made to appear that Connolly was, at the time of its writing, Eoot’s clerk, accustomed to write letters by his direction, but had no recollection of special direction to write this letter.' Defendant complains that by it there was placed before the jury as a fact that defendant made orders on his own account, and not as treasurer of the ozone company. There were other letters containing orders confessedly in the handwriting of Eoot, signed by him individually, and so it is not likely that the result was affected by its admission. But it was not error to admit it In addition to the fact to which Connolly testified, that he had been for a number of years, and was at the date of the letter, in Eoot’s employ, and accustomed to write letters by his direction, there were other circumstances, to one of which we shall allude, which, considered in connection with the direct proof of authority, was sufficient to establish prima facie that the letter was sent by the direction of defendant. The defendant appears to have recognized the letter by a subsequent one-in his own handwriting, which continues the correspondence upon the lines of the letter of December 17th. That letter, as we have observed, asked for a report of the number of machines in process of manufacture. Apparently it was replied to, for, the day following, defendant sends a letter in his own handwriting, in which-he says:

“ I am in receipt of your favor of yesterday. You are increasing the number it is trae, but not sufficiently. From your letter it seems that there are about 500 now making. We want, all told, 1,000 as soon as possible.”

The evidence that the letter of the 17th was written by defendant’s direction was sufficiently convincing to make it necessary for the defendant to show that it was not his act, if such was the fact. At that stage of the proceeding the occasion was presented for him to inform the court that it was his purpose to make it appear that the letter was not written by his direction. Had this been done, the- opportunity would, doubtless, have been afforded him to challenge the proofs presented by the plaintiff on that subject, before the admission of the letter in evidence. He elected to stand on the insufficiency of plaintiff’s proof, and without possible injury to his defense, unless he could have proven that the letter was not sent by his direction.

The court excluded the answer to the fourth interrogatory, which was: “ If your answer to the last interrogatory should be 1 Yea,’ state where said company did business, whether it was organized as a corporation, and, if so, under the laws of what state.” Ho injustice was done the defendant by excluding the answer to so much of the interrogatory as called for the location of the company’s place of business, for that had been established prior to the reading of the interrogatory. The only part of it which could possibly be of moment was the inquiry whether organized as a corporation, and, if so, in what state. Appellant now contends that the question calls for something more than proof of incorporation; that it may well have been that the answer was that it was not a corporation, but a voluntary association, doing business under the name of the United States Ozone Company. As we have not the answer before us, we cannot tell whether, by its exclusion, testimony tending to show a voluntary association was rejected.' Such an answer would not have been responsive to the question which inquired whether it was organized as a corporation, not whether it was a voluntary association. On the trial defendant’s counsel, as well as the court, apparently understood that the defendant was attempting to prove incorporation, for the objection taken was that it was not a proper method of proving the organization of the company. The court having indicated an intention to sustain the objection, defendant’s counsel-said: “The organization of a company is proved in that way every day in court.” The question which the court passed upon,, and which counsel for both parties assumed was the only question before the court, was whether the fact of incorporation, when material and not merely collateral, can be proved by parol testimony. The court rightly held it could not be. The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edward A. Ridley et al, Resp’ts, v. The Manhattan Railway Co. et al, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Default—Conditions—Elevated railroad cases.
    An action to restrain the operation of an elevated railroad was begun in 1885, but the complaint was not served although plaintiffs were given until 1887 to do so, when they were in default. In 1898 a motion to open the default was made on the ground that on account of the sickness and death of plaintiffs’ former attorney the absence of a complaint was not discovered in some years; but it appeared that their present attorney was the brother and partner of the former one. Held, that the default should only be opened on plaintiffs’ stipulating to waive all damages for any period more than six years prior to the date of motion, and payment of costs of the motion and action.
    Appeal from order opening a default.

      Davies, Short & Townsend (Herbert Barry,Julien T. Davies and Wm. B. Coles, of counsel), for app’lts; William R. Wilder, for resp’ts.
   Per Curiam.

This action was begun by service .of a summons on March 26, 1885, and thereafter the defendants duly appeared, and demanded a copy of the complaint. The plaintiffs were given by the defendants two years and a half within which to prepare and serve a complaint, and by the last extension, which was of one day only, the plaintiffs were apprised of the fact that defendants were unwilling to further extend the time to serve the complaint. At the end of such time, namely, on November 3, 1887, the plaintiffs were in default, in failing to serve their complaint, and no attempt was made to have this default opened until March 13, 1893, a period of more than five years. Upon the motion the excuse offered for what would appear to be gross laches was that the former attorney for plaintiffs was sick, and subsequently died, and that the fact that no complaint was served was not discovered •for some years. It appears, however, that the plaintiffs’present attorney was the brother and associate in business of the former attorney for plaintiffs, and the excuse offered for the laches is thus deprived of much of its force and weight. The learned judge at special term granted the motion to open the default upon condition that plaintiffs pay ten dollars costs of motion. Such terms, we think, were not sufficient. The effect of opening the default in an action of this kind is to give the plaintiffs a cause of action for damages extending over a period of more than fourteen years, the greater part of which would be barred by the.statute of limitations if a new action should now be brought, and thus, instead of losing, the plaintiffs would be rewarded for their neglect. This, we think, should not be permitted. Upon opening the default the judge should have required the plaintiffs to stipulate to waive all the claims for damages during any period more than six years prior to March 20, 1893, which was the date of the order to show -cause why the plaintiffs’ default should not be opened; and in •addition the plaintiffs should have been required to pay to defend ants, not only the costs, of the motion, but the costs of the action. We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to open the default denied, with ten dollars costs.

O’Brien, Follett and Parker, JJ., concur.


author: Follett, J.

text:
    Albert Baer, Pl’ff, v. Charles W. Bonynge, Def’t.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Principal and agent—Liability of agent for failure of principal to PERFORM CONTRACT.
    A person acting as agent is not liable for the failure of his principal to perform a contract entered into by the agent- in behalf of the principal, unless he acts for an undisclosed principal or without authority, which is unknown to the other party, or unless he binds himself personally by the contract.
    Motion by plaintiff for a new trial on exceptions ordered heard •at the general term in the first instance, gfter dismissal of complaint.
    Amos R. Eno, the former owner of No. 933 Broadway, leased it until May 1, 1891, to John W. Salter, who assigned his lease to the plaintiff, under which he occupied the premises for a butcher’s ■shop and market for four years. Whether he occupied the whole -or but part of the premises does not appear. At some time prior to 1890, Eno conveyed the premises to Rodie S. Bonynge, the defendant’s wife. The plaintiff testified that five, or six months before October 27,1889, which would be in May or June, he had a conversation with defendant about a new lease, in which it was stated: “ I (plaintiff) told him (defendant) I wished to renew the lease, as I wished to make some alterations about the building, and if I would not get the lease 1 would not do it, so he said : ‘ You can go right ahead. No one will get the lease but you.’ I said : ‘ I am never sure of anything unless I have it. I would rather have it in my pocket than wait for it.’ He said : ‘You can take my word for it. That is all you will have, my word. You can go ahead and paint the house, and do all the repairs you want.’ So he said ‘You can go ahead with all the alterations you want to do.’ 1 said I wanted to put a new front in the building, as it was getting a kind of old now, and bad, and he said, ‘ You can go right ahead.’ So I went and got the house painted, and the roof fixed, and got the sidewalk all around fixed, and put the building in good condition.”
    September 24th, defendant wrote the plaintiff as follows:
    “ London, Sept. 24th.
    “ Dear Sir : I would have been in New York before this. * * * However, I am due in New York in the first week of November, and will call and see you. Have not offered the lease to any one. (Had to hear you- are doing well.
    “ Yery truly, 0. W. Bonynge.”

      Early in November the plaintiff received from the defendant the following letter:
    “ 43 Prince’s Gate, London, Oct. 27, ’89.
    “ Dear Mr. Baer : I expect to be in New York a week or so after this letter reaches you; and, if you wish to renew a lease, please have the name of the parties you offered to go on your security ready to submit, as I will be there but a short time. I hope to find the building painted, and that the roof has been put in good condition, as agreed on. I need not tell you other people want it. Hope you have a good business, and doing well.
    “Very truly, 0. W. Bonynge.”
    The defendant returned to New York the first week of November, when he called on the plaintiff, and told him that he would let him know the terms of the lease within a few days; that he would get an appraiser, and see what the lease was really worth. A few days afterwards the defendant gave the plaintiff the following documents:
    “ Fifth Avenue Hotel, Madison Square, New York.
    0 “ Friday.
    “ Dear Mr. Baer : I had a valuer, to-day, up to look at building and situation—a man of very good judgment—and I asked him to make a fair estimate of the rent for the next ten years. I told him what you were paying, and what I thought it worth. He said I was much too low; that, since Salter took that lease, property and rents had gone up there fully forty per cent., and he put the lease of the same nature as the present at $14,000 a year. So I have made up my mind to drop $1,000 off this, and make it $13,000 for the next ten years ; you to make any terms you like about the upper portion of the building. But you must let me know what the rent of the basement is to be, and have it agreed on. From what I hear, I would not make his lease less than $3,000 a year. Now, let me tell you what I find : When Salter went in there, the rent from the basement was only $900 the first year, then $1,200, and the rooms upstairs $2,500; making, say, $3,500 in all, for the first two years. Take his rent and taxes at $12,000, and deduct the $3,500, and you find Salter paid $8,500 for his part ten years ago. Now, if'you wish to have it at $13,000, —say, with taxes, $15,000—deduct basement $3,000, rooms $3,500, making $8,500, making your rent just the very same as Salter paid ten years ago. This is my conclusion, after getting two very good opinions on it. I inclose a card with my ideas of the same.
    “Yours truly,
    “C. W. Bonynge.
    “We think, inside of ten years, this lease will be a very low one.”
    “Bent $13,000, with, in addition, to pay all taxes and improvements. Boof to be painted every year; outside of building, every three years. Bent, in gold coin, to be paid July 1st, October 1st, January 1st, April 1st. No structures to be allowed in or about the building, nor on the roof. No flagstaffs, or anything similar, to be permitted. Violations to work forfeiture of lease. No transfer of lease without consent of owner. Two good signers' to be provided. Taxes, water, to be paid on maturity, and receipts for same furnished the.owner. No objectionable business to be allowed on premises.
    “Fifth Avenue Hotel, Madison Square, New York.
    “Mr. Baer, 922 Broadway.”
    The day following the receipt of these documents the plaintiff told the defendant he would accept the terms offered, and a few days afterwards the defendant procured to be drafted in duplicate a proposed lease, the material parts of which are as follows: “Lease, dated November 28, 1890, between Rodie S. Bonynge, of St Louis, Missouri (but now temporarily residing in London, England), and Albert Baer, duly executed and acknowledged by said Baer, demises the lot of land and building 933 Broadway, New York city, for the term of ten years from May 1, 1891, at the yearly rent of thirteen thousand dollars in gold coin, payable in quarterly payments on the first days of July, October, January and April, containing the. usual covenants and the following special provisions : That the tenant will pay on maturity the annual rent or chargp for Croton water, and deliver to the landlord proper receipts showing such payment: that the tenant will also pay on maturity all taxes, and deliver proper receipts showing such payment ; that the tenant will, at his own expense, do all the repairs, and keep and maintain the premises in good condition, and will not permit any flagstaff or poles on the roof, will paint the roof once in each year, and the whole building, inside and out, once in every three years, the first painting to be completed by August 1,1891; that the tenant will not assign the lease, or underlet, without the written consent of the landlord, and will not use the premises for any purpose deemed extrahazardous or a nuisance; and that if default be made in any of said covenants the landlord may re-enter and repossess the premises.” There are also covenants that in case the premises be destroyed by fire the landlord shall have the right to cancel the lease and apportion the rent, unless she elect to repair, in which case the repairs shall be made with reasonable dispatch, and during the period of repairs no rent shall accrue; also that, in case pf an assessment for public improvement, six per cent, interest on the amount of such assessment shall be added to the. rent. The plaintiff signed the proposed lease, and procured tiamuel Lichtenstein and Lewis Samuels to execute and aeknowl'edge the guaranty indorsed thereon. Thereupon, the plaintiff personally mailed one of the duplicates so executed to the defendant’s wife, at London, for execution by her. A few days after the duplicate had been mailed, the defendant told the plaintiff that he should write and advise his wife not to execute it, because the plaintiff refused to lease the basement to Mr. Strouver for ten years at not less than $3,000 per year. The defendant’s wife refused to execute the lease, and December 20, 1890, this action was brought, and May 1, 1891, the plaintiff vacated the premises, which had been leased to another person.

      Charles H. Woodbury (Albert Stickney, of counsel), for pl’ff; Olin, Rives & Montgomery (George L. Rives, of counsel), for def’t.
   Follett, J.

This action is for the recovery of damages for the alleged breach of a contract to procure a contract to be made. It should be borne in mind that the defendant did not own the property of which the plaintiff desired a lease, but it was owned by his wife, which fact was known to the plaintiff, as appears by the third subdivision of his complaint, and from his testimony. He testified that defendant told him that his wife owned the property, and that he (the plaintiff) told the defendant that he desired that the proposed lease should be executed by defendant’s wife, because he did not produce a power of attorney authorizing him to execute a lease for her. It is plain that the negotiations between the litigants were carried on with knowledge that defendant’s wife owned the property, and with the understanding that she should become the lessor, and that the defendant was acting as her adviser, or, at most, as her agent. A person acting as agent is not liable for the failure of his principal to perform a contract entered into by the agent in behalf of the principal, unless he acts for an undisclosed principal, or without authority, which is unknown to the other party, or unless he binds himself personally by the contract. The defendant was not acting for an undisclosed principal, he did not bind himself personally, and it was not shown that whatever he did was without authority, and it is difficult to see upon what principle he can be held liable in this action. It seems unnecessary to consider the question discussed on the argument and on the briefs, whether, under the statute of frauds, a valid lease, or a valid contract to give one, founded on a good consideration, arose out of the negotiations, oral and written, between the litigants, for the defendant did not assume to contract for himself, but for his wife. It seems that the defendant’s advice to his wife not to execute the lease was based on the plaintiff’s unwillingness to make a satisfactory sublease of the basement. ■ The letter stating the terms of the proposed lease contains the following :

You may make any terms you like about the upper portion of the building, but you must let me know what the rent of the basement is to be, and have it agreed on. From what hear, I would not make his lease less than $3,000 a year.”

The proposed lease provides “ that the tenant will not assign the lease, or underlet, without the written consent of the landlord.” The defendant expressed dissatisfaction with the sublease of the basement, which the plaintiff proposed to give to Mr. Strouver. The plaintiff’s motion for a new trial should be denied, and a judgment ordered for the defendant, with costs.

O’Brien and Parker, JJ., concur.


text:
    Peter A. Welch et al., App’lts, v. Solomon Seligman, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Fbaud—Dismissal of complaint.
    In an action for the recovery of damages for obtaining goods through false pretenses, and with the preconceived design not to pay for them, plaintiff’s evidence showed that defendant, in order to obtain the goods, misrepresented the amount of Ms assets and liabilities, the condition of his, business, and the use he intended to make of the goods. Held, error to dismiss the complaint at the close of plaintiff’s evidence.
    2. Same—Replevin.
    Such an action is a disaffirmance of the sale, and not inconsistent with a replevin suit previously brought by plaintiff to recover the goods.
    Appeal from a judgment in favor of the defendant, entered upon a dismissal of the complaint at the close of the plaintiffs case, and from an order denying a motion for a new trial.

      Artemus B. Smith, for app’lts; David Leventritt, for resp’t.
   Follett, J.

This action is for the recovery of damages for obtaining goods through false pretenses, and with the preconceived design not to pay for them. In May, 1891, the plaintiffs were partners under the name of Welch, Holme & Co., and in that month they sold and delivered to the defendant, at the city of of New York, sixty casks of alkali, at the agreed price of $1,-921.59, payable June 1, 1891, no part of which has been paid. Fifteen of the casks were delivered May 4th ; fifteen, May 12th; eight, May 18th ; and twenty-two, about the 26th of May. One of the plaintiffs testified that the defendant was introduced to him in February, 1891, by Mr. Kuschowsky, and that on that occasion the following conversation was had:

“ I then asked him, defendant, in regard to his means, and he said that he had brought out Kuschowsky, and paid him $1,500 in cash. Furthermore, I asked him, 1 Are all your fixtures and apparatus clear?’ He said they were; and there was no incumbrances on them whatsoever, and 11 want to make arrangements with you to furnish me with alkali.’ I said we would be glad to sell to him if we could make satisfactory arrangements. 1 How do you propose to pay?’ He said, ‘I will pay you on the first of every month, and I will want deliveries of alkali at different times.’ I told him this was a cash article. He said: ‘I will pay you the first of every month any purchases previous to the first. You can rely on getting your money on the first of the month, and the statements I make to you are strictly true. I am an honest man, and I have property in the west, about $2,000 worth of property.’ ”

In February the defendant purchased of the plaintiff six casks of alkali, which he paid for March 1st. In March he purchased thirty casks, which he paid for April 1st In April he bought thirty-four casks, which he paid for May 1st. In May he purchased the sixty casks, for which he failed to pay. At the time he ordered the sixty casks the following conversation occurred: “I (one of the plaintiffs) said: 1 That is a large quantity. Your business must be increasing very rapidly.’ He said it had, and he wanted that quantity, and would have to have it, because he had orders to fill for sal soda that would require that quantity of alkali during the month. He said, further, 11 will do as I agreed, and pay you the first of every month.’ ”

The defendant took sixteen of the casks which were delivered on the 26th of May to a warehouse on the same day, and received a negotiable warehouse receipt in the name of E. L. Goldnsor, representing to the person from whom he received the receipt that that was his name. He represented at the time of taking the receipt that he had a surplus of alkali, and wanted to raise some money on it, and gave that as a reason for getting the warehouse receipt. Shortly afterwards he tried to sell the receipt to one Green, requesting him at the time not to tell the plaintiffs’ firm about his offer to sell. It was proved beyond dispute that the defendant agreed to pay but $800 for the plant, instead of $1,500, which he purchased pf Kuschowsky, and that he paid in cash $200, and gave his notes for the remainder, which have never been paid. On April 28, 1891, defendant gave his promissory note to Harris J. Bramson for $620, due in twenty days, which was. not paid at maturity; and May 25, 1891, an action was brought thereon in the city court of Hew York, and June 2, 1891, a judgment recovered thereon against defendant, on which an execution was immediately issued, under which the sheriff levied on the defendant’s property, and took possession of his place of business. Immediately after the levy one of the plaintiffs called on the defendant, and had the following conversation: I asked him at an interview at my office what had become of the property he represented himself possessed of to me. He said he didn’t know. He had to pay little debts here and there, current expenses, and other little things, and he couldn’t say. He said that the Bramson judgment that the sheriff had got into his place on was entirely unexpected to him. I asked him what had become of our alkali that had been delivered to him in May, or any part of it. He said a few casks were in the place, but the others had been used up, and he didn’t know. Things were in a kind of mixed-up shape, and he didn’t know what had become of anything. He couldn’t give an account of anything. He gave me no satisfaction concerning the remaining casks. I asked him if he had stored away any of it. He said, 11 decline to answer.’ ”

In another interview with one of the plaintiffs the defendant said, if forced to sell, he could not pay more than two or three hundred dollars; that he might pay twenty-five per cent of his indebtedness. The person of whom defendant purchased the factory testified that not more than thirty casks of alkali could be used in the factory in any one month ; that it had not capacity to use more. The evidence was sufficient to have justified the jury in finding that the defendant misrepresented (1) the amount of Ifis property; (2) the amount of his liabilities; (3) the condition of his business; (4) the use which he intended to make of the sixty casks of alkali purchased in May. These propositions, being found in favor of the plaintiffs, would have sustained a verdict that the goods were acquired by false representations, and with the preconceived design not to pay for them. This is not an action on the contract to recover the agreed price, but an action in disaffirmance to recover damages for the fraud alleged to have been practiced, and there is nothing in the point that this action is inconsistent with the replevin action previously brought, as the learned trial judge correctly held. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.

O’Brien and Parker, JJ., concur.


text:
    The Connecticut Mutual Life Inssurance Co., Resp’t, v. Jacob S. Cornwall et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    2. Pleading—Misjoinder.
    Plaintiff took a mortgage on certain land to secure himself for money loaned to the mortgagor to pay off liens on the land and,in fact,so used. Held, that a complaint which asked for the foreclosure of the mortgage, and if found that the mortgagor was not the owner of the land at the time of giving the mortgage, that the discharge of the liens paid with the money loaned by plaintiff be set aside, and the liens restored and foreclosed, contained but a single cause of action.

      2. Same—Parties to action to set aside discharge of liens on land.
    In such action the former owners of the liens paid off by the plaintiff’s money are not necessary parties, for the reason that all of their rights are as effectually vested in the plaintiff as though the liens had been formally assigned to it.
    Appeal from an interlocutory judgment entered upon the decision of the court at special term overruling the demurrer to the plaintiff’s complaint herein.

      Arthur Furber, for app’lts; John M. Bowers, for resp’t.
   Follett, J.

The appellants demurred to the complaint on two grounds: (1) That two causes of action havé been improperly united; and (2) that there is a defect of parties defendant, because the former owners of the prior liens sought to be restored and enforced are not made parties. The relief sought by this action is an adjudication that the plaintiff has a lien on the land for $22,000, which it is entitled to enforce as against the borrower and all persons having subsequent liens. It is alleged in the complaint that plaintiff’s right to a lien arose by virtue of a mortgage executed to it July 8, 1889, by the then owner of the fee, to secure the payment of said sum, and also because the money was borrowed for the purpose of paying valid liens then existing, and that it was applied in payment of these liens. A judgment is asked for the foreclosure of the last mortgage, and also, in case it is found that at its date the mortgagor was not the owner of the fee, that the discharge of the prior liens paid with plaintiff’s money be set aside, the liens restored and foreclosed. These allegations constitute but a single cause of action, the existence of a lien for $22,000, and the right to enforce it. The fact that the lien is alleged to exist by reason of several instruments, all affecting the same property and parties, does not constitute two causes of action. Suppose the plaintiff, when it had loaned its money, had paid it directly to the holders of the liens, taken assignments of those liens, and held them, together with its new, mortgage, as security for the loan, could it be maintained that all of these securities, affecting the same property and persons, could not be foreclosed in one action, or that by being set forth in the complaint that it contained, two causes of action which, could not he united ? We think not. The complaint contains allegations showing that the plaintiff is entitled to be subrogated to the rights of the holders of the former liens, which allegations the appellants by their demurrer admit. This being so, the plaintiff is the equitable owner of these liens, and may enforce them the same as if they had been formally assigned to the plaintiff. When a debtor gives his note for a liability previously contracted, the creditor may, in an action brought to recover the amount due, allege that the debt exists by virtue of the last promise, the note, and that it also exists by reason of a sale of property, and a recovery may be had on the original consideration or on the last promise. In such a case but a single cause of action is set out The first ground of the plaintiff’s demurrer is untenable.

The former owners of the liens paid off by the plaintiff’s money -are not necessary parties to this action, for the reason that all of their rights are as effectually vested in the plaintiff as though the liens had been formally assigned to it. Ellsworth v. Lockwood, 42 N. Y., 89-96; Lidderdale v. Robinson, 2 Brock., 159, affirmed 12 Wheat, 594; Robinson v. Leavitt, 7 N. H., 73; Rigney v. Lovejoy, 13 id., 247-252; Wilson v. Kimball, 27 id., 300-■307; Pom. Eq. Jur., § 1211. In law the word “subrogation” denotes putting a third person, who has paid the amount due the creditor, in his place. There are two kinds of subrogation: (1) ■conventional and (2) legal. A conventional subrogation occurs when the creditor formally transfers his claim to a third person. A legal subrogation arises when, by operation of law, a third person becomes equitably entitled to stand in the place of the creditor. The latter mode of subrogation as effectually divests the creditor of his title to the debt or security, and vests it in the third person, as the former. See cases above cited. It is well settled that an assignor of a mortgage, who has no remaining interest in it, is not a necessary party to an action brought to foreclose it. Whitney v. McKinney, 7 Johns. Ch., 147; Slee v. Manhattan Co., 1 Paige, 48-52; Ward v. Van Bokkelen, 2 id., 289; Topping v. Van Pelt, Hoff. Ch., 545; Bloomer v. Sturges, 58 N. Y., 168, 175; Clark v. Mackin, 95 id., 346. When all of the interest of a former owner of a lien, has been divested, no matter whether by a formal assignment or by operation of law, he ceases to be a necessary party to an action for its enforcement. The appellants’ ground of demurrer is not well taken. The judgment should be affirmed, with costs, with leave to the appellants to withdraw their demurrer on payment, within twenty days, of the costs included in the interlocutory judgment and the costs of ■this appeal.

Yan Brunt, P. J., and Parker, J., concur.


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    Mary J. Killoran, Adm’rx, App’lt, v. Clinton W. Sweet, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    iHSDIiANCE - (LIFE) —ASSIGNEE OF POLICY HOT LIABLE FOB. ALLOWING IT TO' LAPSE.
    In an action for damages caused by defendant in permitting a policy on the life of plaintiff’s intestate, which was assigned to defendant, to lapse, it appeared that the policy was assigned to secure the assignee against a contingent liability dependent on the life of the insured, and that such assignee was paid by a third person a sum sufficient to pay the premiums while such contingency existed, but that he did not agree to pay them. Feld, that defendant was not liable for damages caused by permitting the policy to lapse.
    Appeal from judgment in favor of defendant, entered on verdict directed by the court.
    - Action to recover damages alleged to have been caused by defendant allowing a policy on the life of plaintiff’s intestate, which had been assigned to him, to lapse.

      Henry A. Forster, for app’lt; Edward Jacobs, for resp’t.
   Follett, J.

In October, 1869, Margaret Killoran died, leaving a will, which was duly probated, by which she devised the fee of No. 350 Sixth avenue to Dominick J. Killoran, her son, subject to a charge of $4,500, payable to John H. E. Killoran, another son, in instalments of $250 on each 1st day of May, beginning May 1, 1870, and ending May 1, 1887. It was provided that, in case said annuitant died before the whole sum should be paid, the subsequent annual payments were to be paid to persons mentioned in the will. Dominick J. Killoran paid to his brother $250 annually for eight years, $2,000 in all, the last payment being made May 1, 1877. This left a charge of $2,500 on the premises, payable in ten annual instalments on each "1st day of May thereafter. On the 22d of November, 1877, Dominick J. Killoran conveyed the premises to the defendant in this action by a full covenant deed, and at the same time John H. E. Killoran acknowledged the receipt of all previous annual payments due him, and conveyed all of his interest in the premises to the defendant; and for the purpose of securing the defendant against the liability of paying annual sums to other persons in case John H. E. Killoran died before the expiration of the ten years within which the remaining $2,500 were to be paid, Dominick J. Killoran procured a policy of insurance for $2,500 on the life of John H. E. Killoran, payable to his representatives or assigns. It bore date November 20,1877, and the annual premium thereon was $56.75, amounting for ten years to $567.50, which sum Dominick J. Killoran delivered to the defendant, wherewith to pay the premiums on the policy for ten years. On the day the policy was issued it was assigned by John H. E. Killoran to the defendant. July 16, 1886, John H. E. Killoran died of delirium tremens at Bellevue Hospital in the city of New York. Subsequently letters of administration were granted to his widow, who brings this action to recover damages against the defendant for permitting the policy to lapse. She claims that she is entitled to recover $2,872, the amount which would have been due on the policy had all the premiums been paid and all the conditions of the policy kept and performed.

The defendant answered that the policy was solely for his. indemnity and benefit, and that he stopped paying the premiums because the insured violated the terms of the policy by impairing his health by the use of alcoholic stimulants, and by traveling and residing outside of the limits of residence and travel permitted by the terms of the policy. To establish the liability of the defendant for damages arising from his failure to pay the annual premiums it was necessary for the plaintiff to show that the defendant was under some obligation to make the payments. This was the issue which she tendered in her complaint, and which she was bound to establish in order to recover. The defendant introduced no evidence, and the case was disposed of on that given by and in behalf of the plaintiff. She called the defendant, and he was examined in respect to the terms of the agreement under which the policy was assigned to and the money left with him for the payment of future premiums. He testified that he never promised to keep the policy alive, and that it was issued and assigned to him solely for his security. There is nothing in the case impeaching or discrediting this testimony; indeed, the natural inference deduoible from all the evidence is that this policy was taken out and paid for by Dominick J. Killoran and assigned by John H. E> Killoran to the defendant solely for the latter’s security against any claims that might be made by others for the payment of the sum charged on the land.

There is not the slightest conflict in the evidence, and there was no disputed question of fact, and no question for the jury. The defendant had in his hands $283.75 of the money delivered to him by Dominick J. Killoran which he had not expended in paying premiums on the policy, for which amount he consented that a verdict might be directed against him, with interest. Under the complaint the plaintiff was not entitled to recover this sum in this action, but the defendant, in his answer, averred that he agreed with Dominick J. Killoran to pay to the plaintiff such part of $567.50 as he should not expend in the payment of premiums on the policy. When John JEt. B. Killoran died there was but one annual payment of $250 left as a charge on the land, which the defendant has satisfied. It seems to us that the bare statement of the facts of this case demonstrates without the aid of argument and illustration that the plaintiff is not entitled to recover. The vital allegation in her complaint is “ that said defendant agreed out of said moneys to keep said policy alive by paying premiums thereon which should become due, including the premium which should become due on the 20th day of November, 1886.” This allegation she not only failed to prove, but absolutely disproved it by her own witness.

The judgment is right, and must be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur.


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    Charles Remsen, Resp’t, v. William A. Reese et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Judicial sale—Purchaser not compelled to complete unless immediate possession can be ghven.
    A motion to compel a purchaser at a judicial sale to complete will not he granted unless immediate possession of the premises can be given.
    Appeal from an order requiring a purchaser at a partition sale to complete his purchase.

      E. Luther Hamilton, for app’lt; William Sam Johnson, for resp’t
   Per Curiam.

Pursuant to a judgment in partition, the premises in question were sold to Robert F, Westcott, May 2, 1893, who then paid to the referee the required percentage of the purchase price. By the terms of sale the remainder of the purchase price was to be paid', and the referee’s deed delivered, May 24th. On that day the purchaser tendered the purchase price, and offered to complete the sale, provided certain judgments were satisfied of record, or the judgment in partition so amended as to release the property from the lien of the judgments, and the purchaser put into actual possession of the premises. By an arrangement between the attorneys for the plaintiff and the purchaser, a motion to amend the judgment so as to require the referee to pay the money into court was argued May 29th, and the motion granted June 1st; the order also providing “ that the referee complete said sale as of May 24,1893, on payment to him of $26,550, the balance of the purchase money.” June 6th the purchaser served on the referee a certified copy of the order, and asked him to complete the sale as of May 24th, at the same time informing him that there was a tenant in possession who was not a party to the action, and requesting that the referee deliver possession. The latter expressed a willingness to deliver the deed and take the remainder of the purchase money, but said he could not deliver possession, and referred the purchaser to the plaintiff’s attorney. The attorney said that he did not understand about the lease to the tenant, and referred the inquirer to a Mr. Cushman, who was his counsel in the action, and the attorney for the lessors ; and he said that the tenant had a written lease, which he thought had expired May 1st, and that since that time the possession of the occupant had been that of a tenant at will, and that he would go out if requested by the purchaser. To the inquiry, “ Suppose the tenant will not go out at the request of the purchaser ?” Mr. Cushman replied: “ Then you can put him out.” The attorney for the purchaser at once said that the purchaser would not complete the sale on such terms. Subsequently, and on the same day, he asked the tenant to let him see the written lease; the answer being that “ he couldn’t lay his hands on it, but would look for it.”

Replying to the inquiry as to the terms under which he had possession, the tenant said, “ As the matter seemed to be complicated, he would have to see his lawyer before' saying anything about it,” June 14th the purchaser demanded of the referee a return of the money paid, and two days later purchased other real estate. Nearly a month later, and without having tendered to the purchaser possession together with the referee’s deed, and while the tenant was still in possession, this motion was made. The court decided that the purchaser was entitled to immediate possession; that, if it could not be given him, the motion should be denied, otherwise granted; and directed that the order be settled on notice. The following day the lessor, in writing, offered the tenant $100, and the rent for June and July, if he would surrender possession by nine o’clock the following morning. The offer was accepted, the tenant gave up possession, and on the same day the lessor made affidavit to that effect, which, with another affidavit, was presented on the settlement of the order which directed the purchaser to pay over the remainder of the purchase price.

The court correctly stated the rule in its memorandum of decision, to the effect that such a motion will not be granted unless immediate possession can be given to the purchaser. The purchaser at a judicial sale is not required to accept a deed, and then struggle for possession. He is entitled to be put into possession when he accepts the conveyance and pays the purchase price. So, if it be necessary to offer a special inducement to the tenant to give up possession, as was done in this case, the purchaser is not called upon to do it. The contrary view seems to have been entertained by the moving party until after the decision of the court, when possession was promptly obtained. But then it was too late. Nearly two months had passed since the date fixed in the contract for the completion of the purchase, and more than one month since, failing to secure even a promise of possession with the deed, the purchaser had declared the contract at an end and demanded the repayment of the money paid by him.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Follett and Parker, JJ., concur.


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    Gustavus Wolfers, Pl’ff, v. John J. Duffield et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Foreclosure—Surplus proceedings—Stay.
    The distribution of the surplus on a foreclosure sale will not be stayed to await the determination of a pending action brought by the heir of a former owner of the land to set aside his deed on the grbund of fraud, as all questions as to the fraudulent character of the conveyance can be tested in the surplus proceeding.
    Appeal by Mary J. Vaughan from an order of the special term denying motion to stay proceedings before the referee in an action for the distribution of surplus moneys.
    The facts as to the action by Miss Vaughan to set aside the deed are as follows: On November 15, 1876, Thomas Vaughan, the father of Mary J. Vaughan, conveyed the premises to one John Hayes, whose deceased wife was the daughter of said Thomas Vaughan. The conveyance was alleged to have been without any consideration whatever, and to have been obtained by fraud. On the day after such conveyance was made Thomas Vaughan died. In May following Miss Vaughan, who was then his only heir at law and the sole beneficiary under his will, brought-suit against Hayes, by her guardian, she being then an infant, to set aside the conveyance, alleging that at the time it was made Thomas Vaughan was utterly incapacitated from attending to any business whatever, and that it was procured by Hayes by fraud. Issue was joined, but the action has not been brought to trial. At the time of the conveyance to Hayes the premises were subject to a mortgage of $15,000 to Grustavus Wolfers, plaintiff in the foreclosure Suit, which had until July 22,1878, to run. The first instalment of interest on that mortgage, after the deatli of Vaughan, amounting to $525, came due on January 22, 1877. Hayes failed to pay the interest, and early in April the mortgage was foreclosed in a suit in which Wolfers was plaintiff and Hayes was the only defendant, Hayes not answering, and the premises were sold, by virtue of the judgment of foreclosure obtained by default on July 11, 1877, to defendant John J. Duffield. At the time of the conveyance to Duffield he gave back to Wolfers a mortgage of $15,-000, which is the mortgage foreclosed in this suit.

      Bliss & Schley (W. T. Schley, of counsel), for app’lt; P. H. Vernon, for resp’t.
   Per Curiam.

As in the surplus proceedings all questions as to the fraudulent character of the conveyances can be tested, there seems to be no reason why these proceedings should be stayed until -the revival and trial of an action commenced sixteen years ago. The appellant in that action would have no right to a trial by jury if it is an action to set aside a conveyance as fraudulent. If the appellant’s action is for the recovery of damages for fraud and deceit, a recovery in the action would in no way establish any lien upon the surplus moneys in the proceeding. The order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concur.


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    John S. Keyes et al., App’lts, v. Barbara Ellensohn et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Infants—G-tjabdian ad litem.
    An appointment of a guardian ad litem, for an infant defendant over 14 years of age cannot be made on the plaintiff's petition until after the expiration of SO days from the time when the service of the summons is complete.
    S. Same—Judgment.
    Where a guardian was appointed before the SO days had expired and appeared and answered, but made no defense on the trial, Held, that the judgment against such infant was properly vacated.
    Appeal from order setting aside judgment as to defendant Anna Kristof.

      Eugene H. Hatch, for app’lts; Isaac L. Miller, for resp’ts.
   Per Curiam.

The infant defendant was upward of 14 ^ears of age when her guardian ad litem was appointed upon the petition of the plaintiff’s attorney. An appointment of a guardian ad litem for an infant of the age of 14 years or upward cannot be made upon such a petition until after the expiration of 20 days from the time when the service of the summons is complete. Code Civ. Pro. § 471. It is conceded that this appointment was made within the 20 days, and consequently it was premature and void. The guardian so appointed appeared in the action and answered, but made no defense on the trial, and May 5, 1892, judgment was entered against the infant. On July 24, 1892, a guardian ad litem was appointed on the petition of the infant, who moved to vacate the judgment as against his ward, which was granted. The appellants urge that a judgment against an infant defendant for whom a guardian has not been appointed is voidable, but not void. Assume this to be so—which we do not decide— the special term had the right to set aside a voidable judgment as against this infant, and we think its discretion was wisely exercised. The order appealed from should be affirmed, with $10 costs and disbursements.

Follett and Parker, JJ., concur.


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    In the Matter of the Application of Jessie C. McBride, App’lt, for a Mandamus to Thomas E. Murray, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Mandamus—Judge—Jurisdiction.
    Where a judge or justice determines that he has no jurisdiction that disposes of the action or proceeding, and he cannot be compelled to proceed by mandamus, but the question whether he had jurisdiction must be reviewed in the ordinary way.
    Appeal from order denying application for a mandamus.

      Hoyt & Rubens, for app’lt; C. J. G. Hall, for resp’t
   Per Curiam.

It is undoubtedly true that a mandamus will lie to compel an inferior tribunal to decide an action or proceeding pending before it; but where the court or judge or justice disposes of the proceeding by decision, even though such decision be manifestly erroneous, it cannot be reviewed upon mandamus. Cases cited in Fiero Spec. Proc., 56. In the case at bar the justice determined that he had not jurisdiction, and that disposed of the action or proceeding pending before him. Whether he had jurisdiction or not- must be reviewed in the ordinary way. The order appealed from should be affirmed, with ten dollars costs and disbursements.

"Van Brunt, P. J, Follett and Parker, JJ., concur.


author: Pryor, J.

text:
    Marshall P. Stafford, App’lt, v. Charles C. Azbell, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Money had—Pleading.
    A complaint alleging an employment of plaintiff to prosecute an action for defendant, an agreement between them that the plaintiff should have half of the sum collected, a compromise of the case by the defendant and the receipt by him of four thousand dollars, a refusal to pay plaintiff his half of the amount, and a demand of judgment for two thousand dollars, with interest, states a cause of action for money had and received, which is not necessarily turned into an action for conversion by an averment that the money was received by defendant in fraud of plaintiff’s rights and. fraudulently misappropriated.
    2. Same—Order of arrest.
    An order of arrest on the ground of injury to property does not alter the nature of the action as apparent on the pleadings.
    Appeal from judgment on dismissal of the complaint.
    The opinion states the case.

      Marshall P. Stafford, for app’lt; Delos McCurdy, for resp’t.
   Pryor, J.

It is the indisputable law of this state that a plaintiff cannot, upon allegation of one cause of action, recover on another, “ unless the defendant, by his silence or conduct, acquiesced in the trial of the new and different cause of action.” Reed v McConnell, 133 N. Y., 425, 433; 45 St. Rep., 227 ; Douglass v. Ferris, 138 N. Y., 204; 52 St. Rep., 138.

In the case before us, at the close of the evidence the defendant moved to dismiss the complaint “ on the ground that no cause of' action has been established as alleged in the complaint.” The contention of the respondent is, that the cause of action propounded in the complaint is for conversion, and that the proof exhibited-only a right of recovery upon contract. ‘

In substance the complaint alleges an agreement by which the-defendant retained the plaintiff to prosecute a litigation and engaged to allow him one-half of any sum collected after suit brought; avers the commencement of an action, the compromise of the case by the defendant, the receipt by him of four thousand dollars on such settlement, arid his refusal to pay over to plaintiff his one-half of that amount. The judgment demanded is for twc thousand dollars, with interest. The cause of action so stated is, in legal effect, for money had and received; and the evidence sufficiently sustains it. Rothschild v. Mack, 115 N. Y., 1, 8 ; 23 St. Rep., 922 ; Roberts v. Ely, 113 N. Y., 128; 22 St. Rep., 185 ; Roberts v. Ellwood, 116 N. Y., 651; 26 St. Rep., 727.

But, the defendant objects that because the complaint charges the settlement to have been made “in fraud of plaintiff’s rights,” and “ the defendant fraudulently misappropriated ” the money, the action is for conversion. Unquestionably the complaint shows a right of recovery on contract, and the allegation of fraud does not of necessity convert the claim into an action for tort. Sherman v. Keim, 83 N. Y., 245; Graves v. Waite, 59 id., 156; Conaughty v. Nichols, 42 id., 83; Greentree v. Rosenstock, 61 id., 583; Vilmar v. Schall, 61 id., 564; Byxbie v. Wood, 24 id., 607.

The respondent urges, however, that an order of arrest against him was obtained on the ground of injury to property ; but the discrepancy of statement in the order and the complaint, while available perhaps on a motion to vacate the arrest, is inoperative to change the nature of the action as apparent upon the pleadings.

Our opinion is that the learned trial judge misconceived the complaint in construing it to be exclusively for tort; and since its sufficiency to support an action' of contract is not contested, we conclude that its dismissal was error.

Hitherto we have considered the case as presented by the respondent, namely : that the evidence authorized a recovery upon contract only. It is a question, however, whether the fraudulent misappropriation of the money as- charged may not constitute a cause of action for conversion, and if so, then it is immaterial in what aspect the complaint be taken, since in either the recovery would be secundum allegata. Gordon v. Hostetter, 37 N. Y., 99, 104.

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

Bischoff, J., concurs.


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    Lazarus Straus et al., Resp’ts, v. Charles E. Trotter, Impl'd, Appl’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. COBPOBATIONS—LIABILITY OF TBUSTEES.
    A joint or several liability is a joint and several liability.
    2. Same—Pabties.
    In an action on a joint or several liability misjoinder of parties defendant is no defense; but judgment goes against a defendant upon his several liability.
    3. Pleading.
    Denial of a legal conclusion is nugatory.
    4. Accobd and satisfaction.
    Acceptance of an indorsed promissory note of the debtor in payment and satisfaction of his existing indebtedness for goods sold is a valid accord and satisfaction, and so merges and extinguishes the original debt-.
    5. Business cobpobations—Tbustees.
    In an action against trustees, upon the act of 1875, a judgment against the corporation is not requisite.
    6. Same.
    A judgment against one trustee upon his several liability does not discharge or affect the liability of another trustee.
    7. Bills and notes—Judgment against indobseb alone.
    A judgment against the indorser does not discharge or affect the liability of the maker of a note.
    8. Pleading—Demubbeb.
    The rule that upon demurrer to the answer the complaint is open to question exposes the complaint to challenge only for want of jurisdiction or cause of action; but not to the objection of a defect of parties.
    9. Same.
    A defect for which the complaint would .be condemned on demurrer is supplied and repaired by allegation of the requisite fact in the answer.
    Appeal from judgment at special term sustaining demurrer to defenses.
    Action to recover of defendant, trustee of Manhattan Athletic-Club, a domestic corporation, upon its promissory note for $2,866.10, payable four mouths after date. The note was indorsed by Hughes and Hoyt, themselves trustees.
    The summons issued against twenty trustees, but was served on appellant only.
    " The action proceeds upon § 8, chapter 267, Laws of 1875, as follows: “ The trustees, directors or managers of any society o corporation organized under the provisions of this act shall be jointly or severally liable for all debts due from said society or corporation contracted while they are trustees, provided said debts are payable one year from the time they shall have been contracted, and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable.”
    Other essential facts appear in the opinion.

      George W. Carr, for app’lt; Daniel G. Thompson and Edward S. Kaufman, for resp’t.
   Pryor, J.

We are of opinion -that neither of the five defenses interposed to the complaint is tenable.

1. Acknowledging himself a trustee, the appellant denies that all his co-defendants were trustees; that is to say,. he pleads a misjoinder of parties defendant. At common law the defect was fatal, upon the ground that “ a contract by X and Y is a different contract from one by X alone.” Dicey on Parties, 12 and 507 marginal. To prevent a miscarriage of justice upon so technical an objection, the Code provides, § 456, that where the summons issues against two or more defendants alleged to be severally liable, and is served upon some only, these may be proceeded against as if the only defendants named; and that where the summons is served upon all, the plaintiff may take judgment against one or more, where he would be entitled to judgment if the action were against the one or more only.

The complaint exhibits the joint and several liability of the defendants, and so judgment may well go against the appellant alone. Stedeker v. Bernard, 102 N. Y., 327; 2 St. Rep., 16; Brumskill v. James, 11 N. Y., 294; Pruyn v. Black, 21 id., 300; McIntosh v. Ensign, 28 id., 169.

Appellant’s denial of liability, being a traverse of a legal conclusion, is, of course, nugatory. The office of an answer is to raise issues of fact; and in pleading questions of law may be presented only by demurrer.

2. Alleging that the note was accepted by plaintiff in payment and satisfaction of a «precedent debt of the club corporation for goods sold, appellant contends that he is discharged from liability. From liability for the club’s original indebtedness appellant is doubtless discharged by the extinction of that indebtedness; but he is sued, not upon that indebtedness, but upon the note in which it is merged. That it is so merged appellant himself avers;. and hence Parrott v. Colby, 6 Hun, 55, and Jagger Iron Co. v. Walker, 76 N. Y., 521, are no authority for the validity of the defense.

Independently, however, of appellant’s express admission, his .answer discloses that the note is fortified by the indorsement of third parties; and hence the case is not within the operation of the principle he invokes ; namely, that a debtor’s promise alone is ineffectual to merge or extinguish antecedent obligation. Jaffray v. Davis, 124 N. Y., 164, 173; 35 St. Rep., 106; Luddington v. Bell, 77 N. Y., 138; Allison v. Abendroth, 108 id., 470, 472 ; 13 St. Rep., 831; Cumber v. Ware, 1 Smith’s L. C., part 1, p. 595, and notes.

3. The insufficiency of this defense, that no judgment has been obtained against the club, is so conclusively settled by adjudication as to render argument upon it not only superfluous but impertinent. State Bank v. Andrews, 21 N. Y. Supp., 948; 51 St. Rep., 123; Merritt v. Goodrich, 21 N. Y. Supp., 949 ; 51 St. Rep., 124; Robinson v. Fay, 19 N. Y. Supp., 120; 46 St. Rep., 369 ; Rogers v. Decker, 131 N. Y., 490 ; 43 St. Rep., 781.

4. The fourth defense challenges the constitutionality of the act imposing defendant’s liability; but as the appellant fails to ■sustain the proposition either by argument or authority, we are to presume it thrown out merely as tabula in naufragio.

Its invalidity is self evident.

5. For final defense to the action, appellant alleges judgment recovered by plaintiffs against an indorser of the note; and attributes to that judgment the effect of satisfying and discharging his liability.

If the judgment against Hoyt be upon his indorsement, a distinct, different and independent contract, then manifestly it is no merger or satisfaction of the club’s liability as maker of the note. Ely v. Clute, 19 Hun, 35; Kelsey v. Bradbury, 21 Barb., 531; Farmers’ Bank v. Blair, 44 id., 641. If the judgment were upon Hoyt’s liability as trustee, then since that liability was joint or several, an equivalent expression for joint and several, Dicey, Rule 50, p. 234, the judgment would be no bar to the action against appellant, another trustee. 5 Lawson’s Rights and Remedies, § 2582 ; 15 Am. & Eng. Ency. of Law, p. 345.

Although his defenses be invalid, the appellant still insists that he should have judgment on the demurrer, because of defects in the complaint.

That upon demurrer to the answer the complaint is open to question, is common learning; yet upon such demurrer the complaint may not be challenged for formal defects, but only for substantial insufficiency ; e. g., for failure to exhibit a cause of action. People v. Booth, 32 N. Y., 397; Girvin v. Hickman, 58 How., 244; Newman v. The Board, 1 Lans., 476; Noxon v. Bentley, 7 How., 316; Schwab v. Furniss, 4 Sandf., 704; Allen v. Crofoot, 7 Cowen, 46; Tubbs v. Caswell, 8 Wend., 130; Roberts v. Kelly, 2 Hall, 307. “ However defective may be any of the defenses, they are not liable to demurrer while the pleading which they assume to answer is radically insufficient to call for any defense what■ever.” Allen v. Malcolm, 12 Abb., N. S., 336, common pleas. “ An entirely bad answer is good upon a demurrer where there is an entirely bad complaint.” Morey v. Ford, 32 Hun, 448. Omission of objection, by answer or demurrer, waives every infirmity in a complaint save only want of jurisdiction or cause of action. Code, §499.

It follows, therefore, that upon the demurrer to his answer the appellant may not avail himself of a defect of parties, if indeed such defect be apparent in the complaint.

He contends, however, that the complaint is bad in substance, because it fails to show that the debt of the club corporation was contracted while he was acting as trustee, was payable within a year, and was sued upon within a year after due.

Whether compliance with these conditions of appellant’s liability be apparent depends upon whether the note be itself the debt of the club corporation, or only the evidence and extension of its antecedent indebtedness. If the latter, then the complaint omits to state the facts which the statute prescribes as indispensible to the action. It must be conceded that, upon the face of the complaint, it is questionable whether the note be itself the debt, or only the renewal and extension of the previous debt; and that so the complaint is insufficient in substance. Clark v. Dillon, 97 N. Y., 370. But, a defect for which a complaint would be condemned on demurrer will be supplied and repaired by allegation of the requisite fact in the answer. Cohu v. Husson, 113 N. Y., 662; 23 St. Rep., 504; Haddow v. Lundy, 59 N. Y., 320, 328; Pratt v. R. R. Co., 21 id., 305, 313; Bate v. Graham, 11 id., 237; Lyon v. Logan, 68 Texas, 521; 2 Am. St., 511; Henry v. Sneed, 99 Mo., 407; 17 Am. St., 580. Here the answer exhibits that the note of the club in suit, though giving for an existing indebtedness, was secured by the indorsement of third parties, and was accepted by the plaintiffs in payment and satisfaction of their original demand. That thus the note was a valid accord and satisfaction, and is itself the debt for which appellant is responsible, is already demonstrated in the discussion of the second defense, supra.

It results that the conclusion of the court below is correct.

Judgment affirmed, with costs.

Halt-, Ch. J., and Bischoff, J., concur.


text:
    Frederick Hackett, Resp’t, v. The Equitable Gas Light Co. of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Appeal—Verdict.
    Upon appeal, if nothing appear to the contrary, the presumption is that in reaching a verdict the jury obeyed the instructions of the court.
    8. Negligence—Damages—Charge.
    Though there be no evidence to warrant an instruction that damages are recoverable for a specific loss; yet if the charge be that such damages to be allowed must be proved, and the verdict indicates that nothing was awarded for the specific loss, the error, if any, is of no prejudice.

      (Leeds v. The Metropolitan Gas Light Co., 90 N. V., 26, distinguished.!
    Appeal from judgment on verdict and denial of new trial.
    Action for injury from negligence of defendant’s servant

      The opinion sufficiently states the case.

      F. R. Coudert and Joseph King, for app’lt; Menken Brothers, for resp’t.
   Pryor, J.

The evidence authorizes the inferences involved in the verdict; namely, that plaintiff’s injury was the effect of defendant’s negligence, without fault on the part of the plaintiff. Those inferences were peculiarly for the judgment of the jury; and we should not be warranted in the conclusion that they are so slightly supported by the facts and so repugnant to reason as to justify the appellate cour,t in setting the verdict aside.

But the appellant affirms error of the charge. The court directed the jury that, “ in awarding damages you will include loss of wages if there is any evidence upon which you can base a conclusion that he has lost wages. Damages are to be proved just as any other fact in the case, and you cannot speculate upon it.” This instruction the appellant challenges because “ there was no evidence to prove what wages the defendant received, or that he lost employment, or that the employment was of any value.”

That plaintiff’s injury involved severe pain, disfigurement of the person, and expenditure for medical attendance, is an undisputed fact; and we are unable to determine that for such consequences of the injury three hundred and fifty dollars is an extravagant reparation.

The verdict, therefore, carries no implication of an allowance for loss of wages or employment, Seitz v. R. R. Co., 16 Daly, 264, 267; 32 St. Rep., 56, and we are to intend that, as the loss or value of wages and employment was not shown by evidence, the jury, in compliance with the clear instruction of the court, awarded no damages for .loss of wages and employment. The jury were told that without proof the damage could not be found; there was no proof ; hence the inference that the damage was not found.

In Leeds v. Met. Gas Light Co., 90 N. Y., 26, the charge was absolute, that the plaintiff “ is entitled to • recover compensation for time lost and disability to labor,” without the qualifying caution, if there be evidence of such time and labor. Moreover, nothing intercepted the inference that the jury had awarded compensation for the unproved damage. The case is plainly distinguishable from the one before us.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


text:
    Schuyler L. Mackie, Resp’t, v. Thomas D. Egan, App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    1. Sale—Delivery.
    Tender of delivery order for goods with bailee at the place of delivery is sufficient perfoimanee by vendor of his contract to maintain action for goods sold and delivered.

      H. Same—Statute of frauds.
    Receipt and acceptance by vendee of part of goods sold takes the case out of the statute of frauds.

      3. Appeal—Questions which hay be haisbb.
    On appeal from judgment of city court the common pleas is confined to the correction of errors of law raised upon the record by proper exception.
    Appeal from general term, of the city court affirming judgment on verdict.
    The opinion states the case.

      Arthur R Robinson, for app’lt; A. G. N. Vermilya, for resp’t.
   Pryor, J.

The action is for goods sold and delivered upon a contract for 10,000 palms to be shipped from Florida and delivered in New York. Twenty-five hundred were received and paid for by the appellant. For the residue the plaintiff tendered a delivery order on the carrier company by whom the goods were held in the city of New York. The defendant refused the order and the goods-, and he resists the action upon the grounds that the contract was void because not in writing; that there was no delivery of the goods for the price of which the judgment is recovered, and that the contract was for shipment by another line of steamships than that by which the goods were brought. The judge instructed the jury that if the shipment was to have been by the other line, the verdict should be for the defendant.

The appellant also insists that evidence of tender was inadmissible, on the ground that an allegation of performance is not supported by proof of excuse for non-performance.

In review of the judgments of the city court we are confined to the correction of errors of law raised upon the record by proper exception; emphatically when, as in the present instance, the case does not purport to contain all the evidence. The verdict, therefore, concludes every question of fact in favor of the respondent. Sutter v. Vanderveer, 122 N. Y., 652, 654; 34 St. Rep., 211.

The appellant impeaches the contract of sale because not in writing; but the receipt and acceptance of part of the goods was effectual to obviate the operation of the statute. Jackson v. Tupper, 101 N. Y., 515 ; Van Woert v. R. R. Co., 67 id., 538.

Appellant objects again that there" was no delivery, but actual delivery is not necessary to sustain an action for goods sold and delivered. It suffices that the vendor tender performance; and this the plaintiff did by offer of the delivery order. Mason v. Decker, 72 N. Y., 595; Dunham v Pettee, 1 Daly, 112; S. C., 8 N. Y., 508; 2 Benj. on Sales, § 1044 (Corbin’s Ed.).

The attempt to invalidate the tender upon the pretence that the palms were not then in the possession and control of the plaintiffs is futile; because the verdict of the jury, on sufficient evidence, settles the fact to the contrary.

Equally vain is the contention that the recovery is not secundum allegata; tender does not excuse performance, but is performance itself. Citations supra.

It results not only that there was no error in refusing to dismiss the complaint, but also that the exceptions to the charge are nugatory.

In view of the facts as determined by the verdict, the evidence challenged on the argument, if inadmissible, which we do not concede, could have been of no possible prejudice to the appellant.

The law and the justice of the case are equally with the respondent.

Judgment affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


text:
    Louis A. Jackson, Resp’t, v. The New York Post Graduate Medical School & Hospital, App’lt.

      (New York Common Pleas, General Term,,

      Filed Eecember 4, 1893.)

    1. Master and servant—Discharge of servant—Motive.
    If the master have legal justification for the discharge of his servant, his-motive in availing himself of his right is of no effect in impairing that right, and is irrelevant to the issue of justification.
    3. Same—Estoppel.
    The fact that the master may not, as against third persons, question the act of his servant, does not estop him, as against the servant, to allege that act as an abuse of authority.
    3. Same—Justification.
    If upon the evidence it be uncertain whether the misconduct of the servant be justifiable cause for discharge, it seems the question of justification may be properly submitted to the jury.
    - Appeal from judgment of city court, affirming judgment on verdict.
    Action for damages for alleged wrongful discharge of plaintiff from defendant’s service.
    By contract defendant, a domestic corporation, employed plaintiff, for five years, as solicitor of advertisements in defendant’s publication, the “Annual Announcement Book.” At the end of the first year defendant discharged plaintiff; and in this action for the discharge defendant pleaded and gave proof of several grounds of justification. Dr. Roosa was defendant’s president
    Other material circumstances of the case appear in the opinion. James L. Skillin (Arthur H. Masten, of counsel), for app’lt: James K. Averill, for resp’t.

      Reversing 52 St. Rep., 264.

   Pryor, J.

In answer to the action the defendant alleged a rightful discharge of the plaintiff; and whether the discharge were justified by his misconduct was the issue upon which, in fact and in law, the verdict was suspended. In terms the court instructed the jury that “ unless you find that there was just and reasonable •cause for the defendant to rescind or cancel this contract by reason of the acts of the plaintiff, the defendant is bound.” No exception was taken to this direction, and probably, by the weight of modern authority, where, as here, the imputed misconduct of the servant is not clearly and conclusively incompatible with his obligations to the master, the question of justification is properly for decision by the jury. Ellison v. Jones, 15 N.Y. Suppl., 356; 39 St. Rep., 948; Stover Manf. Co. v. Latz, 42 Ill. App., 230; Suttie v. Aloe, 39 Mo. App., 38; Bramwell, B., in Horton v. McMurtry, 5 H. & N., 674; Turner v. Robinson, 5 B. & Ad., 789; Ridgway v. Hungerford, etc., Co., 3 Ad. & El, 171; Read v. Dunsmore, 9 C. & P., 588; Amor v. Fearon, 9 Ad. & El., 548; Mercer v. Whall, 5 Q. B., 447.

And not only the legal quality, but the fact of the plaintiff’s misconduct, were referred to the jury, upon evidence which, to say the least, would have well warranted a finding in favor of the defendant.

In this aspect of the case it is obvious that any admission of incompetent evidence could hardly fail to be of prejudice to the appellant.

By the contract upon which plaintiff sues he was employed absolutely for a period of five years; but within a few days after its execution the defendant endeavored to procure his assent to an engagement terminable on thirty days’ notice. This proposed new agreement was received in evidence, contrary to objection and exception by the appellant. In his printed argument the learned counsel for the respondent thus vindicates the ruling: “This paper was introduced in evidence to show with other testimony that the defendant almost from the beginning of the contract was seeking some chance to terminate it, and that it was a part of a general ■scheme to get some pretext for getting rid of the plaintiff without being made liable for damages resulting from a breach of the contract. This was a part of the theory upon which the plaintiff tried this action, and for that purpose the paper was admissible in evidence.” But “ the motive of the master in discharging the servant is not the issue, nor is it material. The simple question is whether a legal cause existed for such discharge.” Wood on Master & S., 230. In Spotswood v. Barrow, 5 Exch., 110, the cause alleged in the plea for plaintiff’s discharge was disobedience of orders. At the trial it was proved that he had misappropriated money; but it did not appear that the defendants knew the fact when they dismissed him; Held, “ that the defendants having a justifiable cause for discharging him, the learned judge at nisprius was wrong in leaving it to the jury to say whether they discharged him for that cause; for their motive and intention were not in issue.” In the present case no matter what the motive of the defendant in dismissing the plaintiff, whether, as he urges, because defendant sought a better bargain with another, the sole issue on trial was, did justifiable cause for plaintiff’s discharge exist ? If it did not, the verdict was necessarily for the plaintiff; if it did exist, the verdict was necessarily for the defendant. And yet plaintiff was allowed “ to try the case on the theory that it was a part of a general scheme to get some pretext for getting rid of the plaintiff without being made liable for damages.”

Suppose the theory well founded, it would not have affected appellant’s defense of legal justification for the discharge. How can we know that the jury did not accept the plaintiff’s “theory,” and award him the verdict on the sole ground of defendant’s desire to be quit of the contract? Indeed, upon any other hypothesis the verdict is unaccountable. The jury were charged that if Dr. Eoosa “ did not authorize the use of his name for the purpose of soliciting advertisements by the promising of trade to the advertisers, then the defendant must recover.” The fact that Dr. Eoosa gave no such authority, was established by uncontradicted and conclusive proof; and yet the jury gave the verdict to the plaintiff In other words, the court instructed the jury that if a certain fact were proved, that fact would convict the plaintiff of misconduct justifying his discharge and entitling the defendant to the verdict; upon the evidence the fact stood undisputed; and still the verdict was for the plaintiff. How otherwise are we to explain such a verdict than upon - the presumption that although the discharge of plaintiff was justifiable, the jury, in accordance with the “ theory,” found against the defendant because he availed himself of his legal right to accomplish a foregone purpose to be rid of the plaintiff ? .

The evidence was incompetent for any purpose, and the error in its admission is of obvious injury to the appellant.

An error in the charge to the jury is equally fatal to the judgment.

Another ground assigned by the defendant as legal justification for the plaintiff’s discharge was, that he had wrongfully caused the omission of advertisements from publication. Upon this point the question was whether the plaintiff or the defendant was responsible for the omission. The issue depended upon conflicting evidence, the printer testifying that Dr. Eoosa referred him to plaintiff for arrangements as to the publication, and that the plaintiff directed the omission of the advertisements. Thereupon the judge charged, “ If you believe that he, plaintiff, was authorized by the doctor, that all matters in regard to the arranging of the “Announcement” should be referred to Mr. Jackson, then any act of Mr. Jackson cannot be found fault with here or taken advantage of by the defendant; ” that is, if the plaintiff was authorized to supervise the publication, the defendant was estopped to say he was guilty of misconduct in such supervision. In respect to its customers, undoubtedly, the defendant could not challenge the authorized act of its duly constituted agent; but that as between plaintiff and defendant the latter might allege an abuse of the former’s agency is too plain a proposition to admit of controversy. Assuming such abuse, the court told the jury that it was not open to defendant to assign it as a cause for plaintiff’s discharge; and thus swept away one of appellant’s main defenses to the action.

The error in the charge is palpable.

From the reversal of the judgment there is no escape.

Judgment reversed and new trial ordered, costs of the appeal to appellant to abide the event.

Daly, Oh. J., and Bischoff, J., concur.


author: McCarthy, J.

text:
    James Flanagan, Ex’r, App’lt, v. Patrick Fox, Resp’t.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    Vendor and Purchaser—Title.
    It is not essential that at the time of the making of a contract for the sale-of land the title should he in the vendor’s name, if at the time of closing of the contract he is prepared to transfer a good and valid title and deed in accordance with the stipulations of the contract.
    Appeal from judgment in favor of defendant dismissing the complaint
    Action to recover damages for breach of a contract for the sale-of land. The contract provided that defendant, the vendor, should give a title such as the Title Guarantee & Trust Co. will approve. The title company refusing to approve of the title as it stood, this action was brought.

      J. Baldwin Hands, for app’lt; John W. Konvalinka, for resp’t.
   McCarthy, J.

The effect of the contract of sale of property-in question has been fully gone into and disposed by this court in. the case reported 52 St. Rep., 482.

The question then is, were the objections made to title by Title Guarantee & Trust Company valid, and were they justified in rejecting the same ?

It is not essential that at the time of the making of the contract the title should be in the vendor’s name, if at the time of the closing of the contract he was prepared to transfer a good and valid title and deed in accordance with the stipulations of the contract.

From an examination of the evidence in this case we think the trial judge was correct in granting the motion to dismiss the complaint, and that the objections made by the Title Guarantee & Trust Company are without legal merit and form no objection in law to the 'title offered by the defendant.

Judgment should, therefore, be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.