text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Agreement of street railroad company to Imp the street “in and about the rails ” in repair — construction of it — evidence — admissibility of memoranda made by a witness — neglect of a company to repair a street — when it cannot dispute the reasonableness of the sum expended by the city in repairing it.

    The defendant obtained permission from the common council of the city of New York to lay its tracks in certain of the streets therein, and agreed, among other things, that it would “pave the streets in and about the rails in a permanent manner, and keep the same in repair to the entire satisfaction of the street commissioner.”

      Held, that the defendant was required to keep in repair not only that portion of the streets immediately adjoining its rails; but so much thereof as was included between them, and, where it had laid double tracks, the spaces included between such tracks.
    The defendant having neglected to repair the streets, when notified so to do by the street commissioner, the necessary repairs were made by the city and thereafter this action1 was brought to recover th,e amount it had expended in so doing. Upon the trial one Wilt, a foreman in the employ of the department of public works, testified that he had charge of the work; that he called-in the morning and afternoon of each day and marked in a book the names and the time of the men employed and the quantities of new materials used. Two other witnesses testified that they were the foremen of the gangs employed in doing the work; that when Wilt came around they gave him the names of the men employed and the time they had worked, together with a statement of any new material used during his absence.

      Held, that the entries so made by Wilt were properly received in evidence.
    The defendant claimed that it was only liable for the reasonable value of the work performed and the materials furnished, and asked, as some evidence had been given to show that the work could have been done for less than was paid by the city, that this question should be left to the jury.

      Held, that as the defendant had neglected to comply with the notice requiring it to do the work, and as it was not shown but that the city had had it done in the ordinary and usual manner, the defendant could not question the reasonableness of the amount expended by it.
    Appeal from a judgment in favor of tbe plaintiff, entered upon. a verdict rendered under tbe direction of tbe court.

      Austen G. Fox, for tbe appellant.

      David J. Dean, for tbe respondent.
   Brady, J.:

The defendants obtained permission from the common council to lay a grooved railroad track, with a double and single track, over parts of certain streets, and having obtained such permission, entered into an agreement with the mayor, aldermen and commonalty of the city of New York, which contained among other covenants the following ;■ “ That the said company shall pave the streets ill and about the rails in a permanent manner, and keep the same in repair to the entire satisfaction of the street commissioner.”

This action was brought to recover the expenses of making certain repairs in and about the rails of the defendants, rendered necessary by the neglect and refusal of the defendants to make them, and, as alleged, in violation of the covenant relating to that obligation. The complaint averred that the pavement in and about the rails laid by the defendants on the Second avenue, between Houston and Forty-second streets, in this city, pursuant to the authority and the resolutions of the common council, was in a bad condition, out of repair and unfit to be used, and that the commissioner of public works, on the 24th of March, 1877, on behalf of the plaintiffs, notified the defendants of the condition of the street named and requested them ‘to properly repave or repair the street and pavement, and further notified the company that unless all the space in and about its railroad tracks on the Second avenue, from Houston street to Forty-second street, including the space in the center of and between the said defendants’ double tracks, should be properly repaved and repaired to the satisfaction of the department of public works, within thirty days from that day, the department would proceed to do the work necessary for such paving, repavement and repairs, and that the defendants would be held responsible for the expense paid and incurred in and about the doing of such work. The complaint further alleged that the defendants wholly neglected to comply with such request and that the department of public works, on behalf of the plaintiffs, proceeded to repair the street and pavement, after the expiration of the time limited by the notice already mentioned, and did make such repairs and repavement, averring the expense incurred to accomplish that object.

The defendants did not deny the service of notice, but denied that the Second avenue was out of repair in and about its rails. It ■denied, too, that it was bound to pave or. keep in repair so much of the pavement or street as lay between its double tracks, except such portion thereof as was in and about the rails of its tracks, and averred that it had at all times kept in repair the street and pavement in and about its rails to the entire satisfaction of the street commissioner and his successors; and it also denied any knowledge, information or belief as to whether the plaintiffs paid out or expended in and about the paving and repairing the sum named in the complaint.

Upon the trial the plaintiffs proved the condition of the street and the necessity of repairs. . They also proved by John B. Wilt, who was a foreman in the employ of the department of public works, that he had charge of the work of making the repairs mentioned ; that his duties were to see that the men did the work and that they were supplied with material; that he called in the morning and afternoon of each day, and had the men’s names who were working put down, and marked their time in a book in which he had their names, and that he marked their time when he found them there. He said that he went around in the morning and afternoon; that he could not say how long he stayed each time with each gang — sometimes ten minutes and sometimes half an hour, according to what was necessary to be done; that although he was not there all the time he laid out the work necessary to be done, and when he returned would ascertain if it had been done. The plaintiffs also called as a witness Patrick Madden, who was the foreman of a gang at work doing the repairs. He stated that he knew Mr. Wilt, and that the latter took the time of his gang; each day in the morning and afternoon ; that he reported such time correctly whether the men worked the whole or part of a day, and that he also reported to Mr. Wilt the quantity of new stone used. The plaintiffs also called Charles Coughlan, who was likewise the foreman of a gang. He testified that the time of each gang was reported to Mr. Wilt twice a day, morning and afternoon, and that such report embraced the time and part times the men had worked; that if it occurred that a man would not work a whole day he had reported to Mr. Wilt the fact; that he also reported to him whether any new stone had been used in the performance of the -work, and if so, liow much, and that these reports were correct. Mr. Wilt, after this testimony had been given, stated that he made the entries himself of these reports of the foremen of the gangs, and that the book in which they were entered was a book of original entry of such reports. It thus appears that the time during which the men worked who were engaged in making the repairs, and the quantities of new stone used, were reported to the plaintiffs’ representative, who immediately entered them in a book kept for that purpose; that these representations were made by the foremen of the gangs of men and were correctly made. These results are established by the testimony of the foremen of the gangs, and by that of the plaintiffs’ representative, Mr. Wilt, to whom the communications were made by the foremen. It does not appear that the foremen kept any written account of the time made, and which would seem to have been entirely unnecessary for the reason that reports were made twice a day during the progress of the work to the plaintiffs’ representative, who said he received and entered the time made by the several men of the several gangs. The report made by Mr. Wilt, based upon these facts and circumstances, was objected to, but received under the defendants’ exception. There can be no doubt that under the rules of evidence it was properly received. It was in effect a statement as if thus made by the foreman of each gang: “ Each one of the men I have named has worked this day,” and that this was sufficient evidence to create a charge for each day’s service of each man named, there can be no question. There cannot be the slightest doubt that this was the effect of the evidence, as already suggested, of the foremen of the gangs and of Mr. Wilt, the plaintiffs’ representative.

In the case of Shear v. Van Dyke (10 Hun, 528), the question was what was the number of loads of hay delivered at a particular time, and a witness was called who stated that he could not then remember the number, but that he knew it at the time and told it to the plaintiff. The plaintiff was called as a witness and was allowed to state the number as communicated to him. The court said: “ It has been repeatedly held that when a witness testifies that he made a memorandum correctly at the time the event occurred, but was unable to recollect the fact contained in it when examined in regard to the transaction, the memorandum- may then be received in evidence of the fact therein stated.” And in Payne v. Hodge (7 Hun, 612), the plaintiff testified that he made entries in accordance with the statement made to him by other witnesses; and the latter testified that such statements were true. The evidence was held to be admissible. ' The case was affirmed on appeal to the Court of Appeals. (See 71 N. Y., 598). These views satisfactorily dispose of the exception taken to the admissibility of the report.

It is contended, however, on the part of the defendants, that assuming the work done .to have been satisfactorily established by the evidence given for that purpose, the place in which the work was done was not embraced within the terms of the contract, that it was not a pavement of the street in and about the rails contemplated by the contract. The point made is in the language of the appellant. “ The words in and about the rails do not refer to the space between the tracks.” The learned counsel for the appellant has not favored us with what he regards as embraced within these words. His proposition is, as has already been shown, that they do not include the space between the tracks, and he leaves the court to make such interpretation of the words mentioned as in the exercise of its judicial function may be proper. He also contends that the question was not involved in the case of McMahon v. The Second Avenue Railroad Company (reported in 75 N. Y., 231). In that case it appears that the words in question were under consideration, and the court said: “ Clearly all the space within the defendants’ rails fell within its agreement,” although it was subsequently said: “ But we need not put so wide a 'construction as that upon the agreement. ‘In and about’ the rails means at least within the two rails of each track, and some space outside of each rail. Beyond doubt it means so far outside as the street surface was disturbed in the act of laying the track.” The suggestion of the Court of Appeals, that all the space between the defendants’ rails fell within the agreement made, is regarded as a proper construction of the words “ in and about.” "Webster defines the word “ in ” to mean “within; inside of; surrounded by; inclosure by something regarded as surrounding; standing about; retaining; including, or the like ;” and by "Worcester it is defined as “ noting presence in place, time or state; within ; not out; to take in; to inclose.” The phrase in the agreement must be regarded as if it were written. within and about the rails.” And if this construction be given to it, it would embrace all the space within the rails employed by the defendants. The difficulties attending the paving of the street during the running of the cars of the defendants over the rails used for that purpose, and, as appears by the evidence in this case, the delays which the running of the cars may occasion in the performance of the work of repairing, may well be supposed to have been contemplated by the contracting parties at the time the agreement was made; and as the whole space within the rails was -thus in the partial possession of the defendants, it would seem to have been a natural result of such use and possession that the duty . of keeping it in repair should be imposed. But, without pursuing this subject any further, the conclusion already arrived at and expressed is, that all the space within the rails of the defendants was embraced within the agreement, and it was, therefore, their duty to keep it in repair. It follows that the contention of the defendants cannot be sustained with regard to the meaning of the words “ in and about,” and that there is nothing, therefore, in the point presented on the subject.

The defendants’ counsel, upon the conclusion of the evidence, asked to go to the jury on the question o.f the reasonable value and cost of the stone and labor furnished, insisting that the defendants were only liable for the reasonable and necessary cost of the materials and labor furnished and done for and upon the space in question. The court had admitted some evidence bearing upon the cost of making the repairs which may be regarded as in conflict with the proof relating to that subject given on behalf of the plaintiffs. It was not asserted on the trial that the work done by the city was not well done. It was not claimed that any fraud had been perpetrated either in making the contract for the. work or in doing it, but simply that it might be done for less if the company had made the repairs. It will not have been overlooked that the company had been called upon by proper notice to make the repairs which had become necessary. The notification mentioned is admitted to have been made because of the allegation in the complaint which is not denied. The defendant’s duty, therefore, was to make the repairs which it neglected to do, and thus placed the burden upon the plaintiffs, who, in accomplishing that object, were justified in resorting to the usual method to attain the end in view. There is nothing to show that the course adopted or any steps taken was for any other design or intention than to have the necessary labor performed in the usual and ordinary way ; and in the absence of any improper element the defendant had no right, having refused to make the repairs, to question the expense incurred. The plaintiffs were compelled to do the work which the defendants were bound to perform under their agreement, a burden which was unjustly forced upon them — unjustly, because it was the result of a violation of the agreement on the part of the defendants. And in the absence of fraud or proof of an unusual mode of procedure the plaintiffs were entitled to the expense incurred, and this whether or not the defendants, by their own employes or by greater experience in the performance of the work required, could have done it for less than it cost the plaintiffs. For these reasons the decision of the justice presiding in the court below was justifiable in withholding the question suggested from the jury and directing the verdict which was rendered.

All the questions presented on this appeal which are worthy of consideration have thus been passed upon, and the conclusion of the court is that the judgment should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    MARY POST and Others, Appellants, v. ADOLPH BERNHEIMER, Respondent.

      Gonditiori against certain uses of property — when it is valid — a purchaser at a partition sede will not be compelled to accept a doubtful title — a mere possibility that he may be disturbed will not justify a refusal to accept a title — what evidence of die release of a condition is sufficient to make the title good.

    A bidder at a partition sale refused to complete bis purchase upon the ground that the premises were incumbered by a condition, inserted in a deed made by by one of the plaintiffs’ grantors in 1811, which provided “ that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected, or to be erected, be at any time thereafter used or occupied as a tavern or public house of any kind ” The plaintiffs in this action, brought for the specific performance of the contract of sale, claimed that the condition had been released by the grantors in the deed. It appeared from certain proceedings in partition between the heirs of Joel Post, in which the premises in controversy were set off to the plaintiffs, that a release of the condition was then produced and proved before the master in chancery, to whom the subject-matter of the action in partition had been referred. These proceedings were completed in the spring of the year 1846, and it was made to appear upon the trial of this action that between that time and the time of the sale in controversy the release itself had been lost or mislaid and could not, therefore, he produced. The master befo whom the proofs were taken was dead. A solicitor, who seemed to be the only person having positive knowledge of the existence of the release, proposed to make an affidavit of the fact and deliver it to the defendant as evidence of the existence of the release, but the defendant refused to accept it.

      Held, that the condition inserted in the deed was valid and constituted an incumbrance upon the title which, if uuremoved, would justify the purchaser in refusing to accept it. The court re-examined this question and reaffirmed its decision thereof heretofore made in Post v. Weil (8 Hun, 418).
    That although a purchaser will not be compelled to accept a title which is so doubtful that it may expose him to litigation, though the court may believe it to be good, yet to bring a cause within this principle there must be some rational doubt concerning the validity of the title, and where upon the evidence a court would be warranted in directing a verdict in favor of the title the objection will not be sustained.
    A mere possibility that the purchaser may be disturbed on account of some alleged defect of title, is not sufficient tc justify him-in refusing to accept it. That in this case the objection should be overruled as the fact of the existence of the release was so satisfactorily indicated as to render it' to the last degree improbable that any person would attempt to enforce a forfeiture occasioned by a failure to observe it, and as it was probable, as there was no evidence" of its destruction, that the instrument itself might thereafter be found.
    Appeal from a judgment in favor of the plaintiff, recovered on the trial of this action at a Special Term.

      William M. Evarts, for the appellant.

      James 0. Garter, for the respondent.
   Daniels, J.:

The action was brought for the specific performance of a contract for the sale of real estate. The property in controversy consisted of six lots situated near the Riverside park on Riverside and Claremont avenues, in the city of New York. Rive of them were purchased by the defendant himself at an-auction sale of this and other property for the price of $50,000, and the right of the defendant to the other was derived by assignment from the person to whom it was struck off at the auction sale. By the terms of the sale ten per cent of the purchase-price was made payable at the time of the sale, and that amount was accordingly paid on the six lots. The 15th of May, 1873, at 11 o’clock a. m., at the office of Messrs. Evarts, Southmayd & Choate, No. 52 Wall street, were designated as the time and place where the balance of the purchase-money was to be paid and the deed would be ready for delivery. The parties met at that time and place to complete the business by the delivery of the deed and the payment of the residue of the purchase-money. Objections were then taken to the statement of the boundaries in the deed, and the completion of the business was adjourned for one week to afford the grantors an opportunity for correcting the descriptions. At the expiration of that time the parties again met at the same place. The deed had then been corrected, but the defendant declined to receive it without the production of a release, discharging the condition reserved in a deed of twenty-one acres of land, including the lots in controversy, made on the 29th of May, 1811, by Michael Hogan and others to Jacob Mark under and through which the plaintiffs had derived their title. It was asserted on behalf of the plaintiffs that this condition had been released by the grantors in this deed, and it appeared by proceedings in partition between the heirs of Joel Post, in which the property in controversy had been set off to the plaintiffs, that a release of the condition had been produced and proved before the master in chancery, to whom the subject-matter of the action in partition had been referred. These proceedings were completed in the spring of the year 1816, and it was made to appear upon the trial of this action that between that time and the time of the sale in controversy the release itself had been lost or mislaid, and could not therefore be produced as it was required to be by the defendant to support the plaintiffs’ title. The master before whom the proofs were taken in the partition suit was deceased, and a solicitor in the proceedings seemed to be the only person having positive knowledge of the existence of the release. He proposed to make an affidavit of the fact and to deliver it to the defendant as evidence of the existence of the release, but tbe latter refused to accept it and insisted upon tbe production of tbe release itself, and because of the inability of tbe plaintiffs to produce the instrument, which at that time had not been recorded, the defendant after tendering his check for the balance of the purchase-price refused to accept the deed prepared and offered to him for the conveyance of the property. This refusal was placed upon the fact that by the terms and agreement of sale an indisputable title was to be given by the vendors by a full covenant warranty deed, free aud clear of all incumbrances, excepting the ordinary restraints to prevent nuisances and the carrying on of offensive trades and business upon the property. Several interviews afterwards took place between the defendant’s counsel and the counsel acting for the plaintiffs, concerning the title to the property, and to remove the objection made by the defendant the opinions of Mr. Evarts and of Mr. Charles O’Connor were taken as to the validity of the objection urged on behalf of the defendant. That of the former gentleman was adverse to the objection, whiló that of Mr. O’Connor was to the effect that it had been well taken. The defendant accordingly never receded from the position taken by him, and this action was afterwards brought specifically to enforce the performance of the contract.

Another action upon the same terms of sale had previously been instituted by the plaintiffs against another purchaser to enforce the performance of the coiitract of purchase made by him, and that brought up for consideration the terms and effect of the same condition. And in its disposition it was held by this General Term that the condition- was valid and had been legally reserved, and that part of the controversy was accordingly determined adversely to the present plaintiffs. (Post v. Weil, 8 Hun, 418.)

Upon the argument of the present appeal the court was pressed by the counsel for the appellants to reconsider this decision for the reason which was urged, that the deed should not be so construed as to contain a condition, but as merely limiting the use which might be made of the premises by a covenant on the part of the grantee. The terms made use of for this purpose as they were inserted in the deed are as follows : “ Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof or any building, or build ings tbereon erected or to be erected, be at any time thereafter used or occupied as a tavern or public house of any kind.” The language as it was made use of was appropriate only for the creation of a condition, and that it was so understood arid designed by the parties is to be further inferred from other portions of the deed referring to this as a condition. Before the deed itself was made, a contract had been entered into between Hogan and Jacob Mark for the sale of the property for the price of $16,000, and it is declared in the deed that the contract was “ upon the specific condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” And in the portion of the deed to which the persons executing it as trustees were more .particularly the parties, the grant is stated to be subject to and upon the condition hereinbefore expressed.” And the same clause follows and qualifies the warranties contained in the deed, and the final covenant for quiet enjoyment is in like manner made “ subject always to the condition hereinbefore expressed and the rights which may at any time result therefrom.” These several clauses are so clearly and explicitly expressed as to exclude all probability that the parties intended anything different from the creation of a condition by means of the language inserted for this purpose in the deed. And when such an intention has been expressed, or is necessarily to be inferred from the deed, the court is required to be controlled by it and to give effect to it in the disposition of the case. (Glaholm v. Hays, 2 Mann. & G., 257.)

The reason and sense of the whole instrument is to be considered, and if by that the design to create a condition is manifested, the court is required so to determine, and in that manner to carry into effect the design and purpose of the parties. (Ritchie v. Atkinson, 10 East, 295 ; Roberts v. Brett, 11 H. L. Cases, 337.)

The omission of a clause providing for a re-entry in case of a violation of the condition has been relied upon as a cogent circumstance conflicting with the propriety of this construction, but that cannot be regarded as a very essential fact in the case, for advantage may be taken-of the breach of such a condition by an action of ejectment, either by the grantor or his heirs, although no right of re-entry be in terms reserved in the deed either for himself or for his heirs. (4 Kent [7th ed.], 127; Wigg v. Wigg, 1 Atk., 382; Doe v. Watt, 1 Mann. & Ry., 694; Jackson v. Allen, 3 Cow., 220; Gray v. Blanchard, 8 Pick., 283 ; Osgood v. Abbott, 58 Maine, 73; Jackson v. Topping, 1 Wend., 388.) And an actual entry for the breach of such a condition has been dispensed with in this State by statute. (3 It. S. [6th ed.], 574, § 19.)

While the condition was not as fully expressed as it was in the deed, the effect of which was determined in Plumb v. Tubbs (41 N. Y., 442), its legal effect was still the same and it was clearly a legal condition under the law as it was declared in that decision.

It was reserved in that portion of the deed in which Hogan and wife were the grantors of the title,® and the facts, that he had previously entered into a contract for the sale of the property to Marks, and joined as a grantor in the deed made, pursuant to the terms of the contract, and afterwards received a conveyance from his trustees reconveying to him whatever remainder or residue there was of the property in their hands, as trustees, remaining after the execution of the trusts to which it had been devoted by a trust deed executed by .Hogan and wife previous to the time of the execution of the deed to Mark, support the conclusion that Hogan continued the equitable owner of the estate, subject only to the execution of the trusts provided for in the trust deed. It is to be assumed from these circumstances and the statement made of the trust deed in the deed to Mark, which is the only evidence of what the trust deed contained, that the trust was not expected to exhaust the entire beneficial interest in the property, and that a resulting trust, after the execution of the trusts provided for, consequently, under the law, existed in Hogan’s favor. ’ (1 Perry on Trusts [2d ed.], § 152; Hill on Trustees [3d Am. ed.], 179.) And because of that resulting beneficial interest, he was a proper, even if not a necessary party to the deed executed and delivered to Mark, and the reservation of the condition to him was therefore not obnoxious to the objection that it was created in favor of a stranger. The law is well settled that such a condition cannot be reserved in favor of a stranger. (4 Kent [7th ed.], 131; Nicoll v. N. Y. and Erie R. R. Co., 2 Ker., 121; Craig v. Wells, 1 Ker., 315, 323; Towle v. Remsen, 70 N. Y., 303, 312; Owen v. Field, 102 Mass., 90; Fonda v. Sage, 46 Barb., 108.) But Hogan, in whose favor the condition was reserved, was in no proper or legal sense a stranger to the title conveyed by the deed to Mark. It was executed and delivered to carry into effect the preceding contract made between these parties, and to the extent that Hogan retained a resulting beneficial interest in the property, which made him its equitable owner, subject to the execution of the trust, he was capable of conveying a substantial interest or title to the grantee in the deed, and himself and his heirs could insist upon the observance of the condition either by an action for the recovery of the property in case of its breach, or could restrain its violation by means of an injunction. (Dorr v. Harrahan, 101 Mass., 531; Linzee v. Mixer, Id., 512; Stuyvesant v. Mayor, 11 Paige, 414; Merritt v. Harris, 102 Mass., 326.) No benefit, therefore, can result to the plaintiffs under the circumstances of this case from a re-examination of the point which was considered and decided in the case of Post v. Weil (supra).

If the controversy were wholly dependent upon the effect of the condition reserved in the deed to Mark, the action would be incapable of being maintained, for as the defendant had the right to an indisputable title he would not be obliged to accept one incumbered by this condition.' For “a court of equity will not now compel a purchaser to accept a title which is so doubtful that it may expose him to litigation, though the court may believe it to be good. * * * If, therefore, there be a reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court will not compel him to accept it.” (Richmond v. Gray, 3 Allen, 25, 27; Christian v. Cabelt, 22 Grat., 82, 103; Garnett v. Macon, 6 Call, 368; Emery v. Grocock, 6 Madd., 54; Smith v. Death, 5 id., 371; Lowes v. Lush, 14 Ves., 547; Shriver v. Shriver, 86 N. Y., 575; Lockman v. Reilley, 29 Hun, 434.) But to subject the case to the operation of this principle, there must be some rational doubt concerning the validity of the title; and where a court of justice upon the evidence would be warranted in directing a verdict in favor of the title, then no such doubt can be entertained. (Shriver v. Shriver, supra, 584, 585.) A mere possibility that the purchaser may be disturbed on account of some alleged defect of title is not sufficient to justify him in refusing to accept and receive the title. (Hopes v. Harmony Grove Cemetery, 108 Mass., 400.) And that in reality was all there was in this case supporting the objection taken, on behalf of the defendant to the title proposed, to be conveyed. For as matter of fact it had been proved before the master in the partition suit, by the production of the deed to Mark, that the condition had been released by a release indorsed upon it and executed by the grantors in December, 1816. And the witness Butler, who was a solicitor in the proceeding, was capable of proving as a matter of fact the existence of this release. Under these ■circumstances there was not the least probability that either Hogan •or his heirs would at any time institute proceedings for the recovery of the possession of this property; or any portion of it which might bé devoted to a use prohibited by this condition.

It is true that the judgment in the partition case would not be evidence against Hogan or his heirs of the existence of the release, for they were neither of them parties to that action. (Whart. on Ev., §§ 760-762, and cases there cited.) But as the release had been produced and proved in that action, and its existence and contents were known to the solicitor who was a living witness capable of proving both, the fact appeared that such a release of this condition had been made and executed. Under the evidence as it was produced upon the trial the court would be justified, and indeed it would be its duty, to order a verdict in favor of the title, if that •should be drawn in question, because of the failure to observe the terms of this condition. The fact of the existence of the instrument was so satisfactorily indicated as to render it to the last degree improbable that any person would actempt to deprive the purchaser of this property of his title, in case of a failure to observe the terms ■of the condition. It was also probable, as there was no evidence -of the destruction of the deed or the release, that it might ultimately be found, -and the record itself in that manner be rendered ■entirely complete by exhibiting a perfect record title to the property in -the grantors. And that circumstance decidedly added to the strong improbability that the defendant could incur any possible risk in accepting the title proposed to be given to him. This probability as a matter of fact was verified by the discovery of the deed and release upon it in the month of January, 1875, which was previous to the commencement of the trial of this action. The release proved to be what it had been stated previously to be by the •solicitor and by the master in his report in the partition case. It was a release complete and effectual from all the grantors in the deed discharging the condition reserved, and it conclusively establishes the fact indicated by the master’s report, and stated by the witness Butler, that the condition had been released and that the plaintiffs at the time when the deed was tendered by them to the defendant had, as a matter of fact, an indisputable title to the property proposed to be conveyed to the defendant. It is true that this ultimate discovery of the release’ can be allowed to have no effect upon the defendant’s conduct in refusing to accept the title to the property, but upon the evidence presented and offered to him at the time of his refusal, it was entirely clear that there was no probaloility whatever that any proceedings would at any time be taken against him, or his grantees, for the recovery of the possession of any part of this property on account of a breach of the condition reserved in the deed to Mark. The strong moral certainty was that neither he nor they would be molested or disturbed in any respect, because of the creation of this condition. It was barely possible, but not probable, that the heirs of Hogan might institute proceedings to recover the estate, or so much of it as might be devoted to the business forbidden by the condition. But in view of the facts that the release itself had been produced and established in the partition proceedings, and that its existence was known to the solicitor, and that such a proceeding would, therefore, be extremely fraudulent and dishonest, it cannot be supposed that either Hogan himself, if living, •or his heirs in ease of his decease, would attempt to institute or carry on so nefarious an action. At the most there was but a bare possibility that the title would ever be questioned, and that, under the authorities, was not sufficient to protect the purchaser in refusing to receive it. It is not necessary, therefore, to examine the other points which have been presented in support of the appeal. The evidence as to the existence of the release should have been considered entirely .satisfactory, and the defendant should have accepted the title proposed to be given to him. Upon the facts as they have been proved the plaintiffs were entitled to have the contract specifically carried into effect. The other purchasers of lots forming portions of the twenty-one acres contained in the deed to Mark have necessarily come in under the judgment in partition, and are concluded by the result of that action. They consequently could not insist in any form on the observance of tlie condition, shown by the deduction of title to their grantors to have been released. The title offered to the defendant was, as a matter of fact, indisputable when the corrected deed was tendered to him. And the judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

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


author: Daniels, J.: Davis, P. J.:

text:
    PETER BOWE, as Sheriff, etc., and Others, Appellants, v. JOHN H. V. ARNOLD, Individually and as Assignee, etc., of THOMAS E. ARNOLD and MARIA T. ARNOLD, Respondents.

      Action to set aside afraudulent conveyance — when an attaching creditor cannot maintain it, before the recovery of a judgment and the issue and return of an execution.

    In an action brought by the plaintiffs, Henry W. Smith and Thomas and Eachel S. Gaff against Thomas and Maria Arnold, an attachment was issued against the property of the defendant? to the sheriff, who by virtue thereof seized certain property claimed to belong to them. The property being claimed by one John Arnold under an assignment for the benefit of creditors, made to him by Thomas and Maria Arnold, this action was commenced by the sheriff and the plaintiffs in the action, in which the attachment was issued, to set aside the assignment as fraudulent.

      Held, .that they could not maintain the action.

      Bates v. Plonshy (28 Hun, 112); Binchey v. SWyker (28 N. T., 45), distinguished.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action at a Special Term.

      Walter Howe, for the appellants.

      John H. V. Arnold, for the respondents.
   Daniels, J.:

An attachment was issued in favor of the plaintiffs, Henry W.. Smith, Thomas Gaff and Rachel S. Gaff, to the other plaintiff, Peter Bowe, as sheriff of the county of New York, against the-property of Thomas E. and Maria T. Arnold, and seizure was made by the sheriff under the attachment, but the property so seized was claimed by the defendant John EL Y. Arnold, under an assignment made to him by the debtors for the benefit of their creditors, and this action was brought to set aside the assignment as fraudulent. It was supposed to be maintainable under the authority of sections 655 and 667 of the Code of Civil Procedure. But neither of those sections authorized th% prosecution of such an action, either by the sheriff or. the attaching creditors, or both together. What they have authorized are actions to collect and receive the debts, effects and things in action attached by the sheriff, but this suit was not brought to recover any demand or claim of that nature. And it is in the prosecution of such actions only that the plaintiffs in the attachment are at liberty to join the sheriff. The action, as these sections have authorized it, must be to recover property or the value thereof, or a demand attached, or upon an undertaking given by a person other than the plaintiff. Under neither of these sections of this Code could this action be maintained, and it was rightly so held at the trial. (Thurber v. Blanck, 50 N. Y., 80, 86; Lynch v. Crary, 52 id., 181, 183.)

It has now, however, been urged that the action -may be maintained for the protection and enforcement of the lien obtained by the levy under it upon the property, upon the authority of Bates v. Plonsky (28 Hun, 112), but that was not a suit of this nature. It was an action, in effect, brought to prevent the distribution of the proceeds of the property until the conflicting rights of different claimants to them could be settled by the court, and a lawful distribution be made under its authority. It was not intended to be held, and was not in that case, that creditors seizing property claimed to be that of the debtors, could by force of their seizure alone maintain an action to set aside an alleged fraudulent disposition previously made of it by the debtors. But all that was held was that the plaintiffs were entitled to enjoin the disposition of the proceeds until the action could be tried for the purpose of determining the conflicting rights of the different parties to such proceeds, and whether the action could be maintained was not a point before the court at that time for determination. All that was then presented and decided was that there was sufficient to enjoin the distribution of the proceeds until a final hearing and determination could be had.

As this action cannot be maintained under the sections of the Code which have been mentioned, there seems to be no legal ground upon which it can be allowed to stand. To authorize the creditors in maintaining an action of this description, it is necesary that they shall first recover judgment in their favor, and after that hak been done, to sustain a creditor’s suit to discover and reach the 'debtor’s property under the provisions of the statute, an. execution must be issued and returned unsatisfied (3 R. S. [6th ed.], 190, § 55) and these provisions have since been embodied in section 1871 of the Code of Civil Procedure.

Under them, after the return of an execution wholly or partially -unsatisfied, the creditor may maintain an action against the debtor and any other person to compel the discovery of anything in action or other property belonging to the judgment debtor or held in trust for him. And. in such an action the party holding the debtor’s ■property may be compelled to deliver it over or assign it, as the case may require, to a receiver to be appointed to dispose of it for the benefit of the creditors. (Chautauque Co. Bank v. Risley, 19 N. Y., 370; Cole v. Tyler, 65 id., 73; Ballou v. Jones, 13 Hun, 629; Thurber v. Blanck, 50 N. Y., 80, 86.)

An action may also be maintained by judgment creditors after the issuing of an execution upon their judgment against the property of the debtor, to remove obstructions and set aside fraudulent dispositions of the debtor’s property preventing the execution from being made effectual. In this class of actions the court interposes under its general equitable authority to relieve creditors where no adequate legal remedy can be applied at law for that purpose. But this ■jurisdiction extends no farther than to authorize the interference of the court after a judgment shall have been recovered, and an execution issued to the proper county upon it against the property of the debtor. (Fox v. Moyer, 54 N. Y., 125; Adsit v. Butler, 87 id., 585.)

And these are the only classes of cases in which the creditor may proceed by action to' set aside fraudulent dispositions made by the debtor of his property.

But if the seizure made by the sheriff under the attachment shall be questioned by an action in favor of the debtor’s vendee, i.t may be defended upon allegations and evidence showing the title of the latter to be fraudulent. (Rinchey v. Stryker, 28 N. Y., 45.)

The principle upon which this right has been supported is, that the creditor is entitled to maintain his alleged lien under the attachment, when that may be adversely questioned, by showing as a matter of fact that the property seized legally belonged at the time to the debtor.

But neither of these authorities, nor that to which reference was first made, established any legal principle under which the present suit can be sustained. The direction dismissing the complaint was a proper one, therefore, and the judgment should be affirmed, with costs.

Beady, J., concurred.

Davis, P. J.:

I concur in the result in this case, but not altogether in the views expressed in the opinion. ‘ The old rules of chancery which were embodied into the Revised Statutes, declared and regulated the cases in which a suitor in the courts of law could come- into a court of equity for equitable relief to enable him to enforce his judgment. To do that he must show that he had exhausted his remedy at law; or that the powers of the law courts were inadequate to afford relief. But under the present system there are no separate courts, but a single court clothed with all the jurisdiction which formerly pertained to both jurisdictions. In a great degree, therefore, the reason of the old rules has failed.'

The right to relief to be granted by courts does not depend now upon the question whether the action is legal or equitable in its nature, for courts are bound to award such relief as a party shows himself entitled to within the scope of his pleadings, whether equitable or legal; and where issue is joined, without regard to the form of his prayer. A party is not to be turned out of court at one door to come into the same court by another, because he has claimed equitable relief when he should have asked for legal, or legal when he should have asked for equitable. The inability to forget the old rules and practice of the former distinct and independent tribunals, and the necessity of showing in each a right to be in that particular court, has led to many errors in administering justice under the new system, and particularly, 1 think, in determining when transfers of property to defraud creditors may be attacked for fraud and in what form. The error is perhaps incurable without legislative aid.

This case is within the scope of such errors and must be determined accordingly.

Judgment affirmed, with costs.


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    THE GERMANIA NATIONAL BANK OF NEW ORLEANS, Respondent, v. WILLIAM G. TAAKS and ALFRED LICHTENSTEIN, Appellants.

      Agreement to pay drafts — when it amounts to an acceptance thereof within 1 Revised, Statutes 768, sec. 8 — right of a person discounting the drafts to enforce the agreement.

    The firm of Bader & Co., of the city of New Orleans, wrote to the defendants, who resided and were engaged in business in the city of New York, offering to send to them for sale drafts drawn by Bader & Co., on Europe, against sales of cotton, and asking the defendants to allow drafts to be drawn against them in advance, to enable Bader & Co., to make advances to parties for cotton bought, but not received, or to make payments before the shipment was completed or the bills of lading signed. The defendants answered, saying: “ We are ready to pay your sight drafts on us which you advise us as having been drawn against particularly to be described shipments, to the extent of $50,000 currency on account of subsequent remittances, which you would then have to send us within a week, whereupon the credit will be renewed of itself.” The plaintiff having, upon the faith of this letter, discounted drafts drawn by Bader & Co., upon the defendants, brought this action to recover the amount thereof, upon the defendant’s failure to pay them.

      Held, that the promise of the defendants, contained in the letter, was an uncon ditional one, and operated as an acceptance under section 8, a Revised Statutes [6th ed.], 1160.
    That the provision as to the amount of the drafts and that they should be drawn against shipments, did not render the agreement to pay conditional, but simply imposed restrictions] and limitations upon the drawers, a failure to observe which would authorize the defendants to declare the contract terminated.
    That even if the contract were conditional, yet the plaintiff, upon proving that the conditions had been complied with, or waived by the defendants, was entitled to recover.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.

      Edward Salomon, for the appellants.

      Edward lauterbaoh, for the respondent.
   Daniels, J.:

The recovery was for the amount due upon two drafts drawn by A. Eimer Bader & Co., of the city of New Orleans, upon the defendants, who were residing and doing business in the city of New York. The drafts were drawn on the 26th of December, 1878, and on that day were presented to, and discounted by, the plaintiff, for Bader & Co., the drawers. They were both made payable at sight, one for the sum of $10,000 and the other for the sum of $15,000. In due course of business they were presented to the defendants for payment but payment was refused, and they were held liable in this action for the payment of the drafts upon a contract previously made between them and Bader & Co. This contract was made by correspondence. The letter proposing it by Bader & Co., was dated on the 2d of March, 1878, and so far as it relates to the contract was in the following language:

“Although the greater portion of our business for this season is finished, and although for this reason the balance of our business will not be so very great, the thought, nevertheless, occurs to us whether it were not possible to open between ourselves a mutual advantageous agreement by which we should forward to you our drafts on Europe, for you to dispose of to the best advantage, and in return reimburse ourselves by drafts on you. One point however, and that a material one, must not be overlooked, namely: That we are allowed by the buyers of our drafts to draw on account of such sold drafts in order to make advances to factors for cotton bought, but not yet received, or to pay invoices to factors before the shipment is completed or bills of lading therefor sighed. In the majority of cases bills of lading accompany our drafts to be delivered on acceptance, and we should be pleased to hear what your views are to such an arrangement.”

The defendants responded on the seventh of the same month in the following manner:

“ To facilitate our intercourse we are ready to pay your sight drafts on us which you advised us as having been drawn against particularly to be described shipments, to the extent of $50,000 currency on account of subsequent reriiittances, which you would then have to send us within a week, whereupon the credit will be renewed of itself. "We charge you seven per cent interest per annum. It will give us pleasure, if the foregoing arrangement will meet with your approval, and we are convinced that we shall be able to render you advantageous accounts.”

And on the twelfth of the same month Bader & Co., by a letter to the defendants, expressed themselves satisfied with the conditions which had been proposed by the defendants.

It has been insisted that as the drafts were not accepted by the defendants, they did not become liable for their payment under the terms of this agreement. The precise objection, was that the promise to pay the drafts was not unconditional in its form, and for that reason it did not operate as an acceptance of the drafts under the provisions of the statute. (2 B. S. [6th ed.], 1160, § 8.) By this section an unconditional promise in writing to accept a bill befoi’e it is drawn is to be deemed an actual acceptance of it in favor of every person who, upon the faith thereof, shall have received the bill for a valuable consideration. And an agreement to pay has been considered and acted upon by the court as sufficient to comply with the requirements of this section of the statute.

By The evidence which was given, the fact was proven that the plaintiff received the drafts upon the,faith of the contract mentioned in the defendants’ letter, and for them paid a valuable consideration. Their case was therefore within the provision of the statute if the agreement was unconditional in its character. It has been strenuously urged that it was not so, for the reason that the drawers of the drafts were placed under an obligation to advise the defendants that they were drawn against particularly to be described shipments, and on account of the subsequent remit! anees which the drawers were to send to the defendants within a week. But the contract which was expressed in the responsive letter of the defendants did not present these qualifications as conditions to the performance of their agreement to pay the drafts. They were simply restrictions or limitations required to be observed by the drawers, and upon their observance they were at liberty to draw to the extent of $50,000 in currency. The language which was made use of to apprise the drawers of the intention of the defendants, in no manner expressed or indicated the obligation they were willing to assume, to be conditional in its nature. Their contract was to pay the sight drafts drawn by Bader & Co. upon them to the extent of $50,000 currency, on receiving the advices mentioned by them, and upon the weekly credit which they stipulated to give. Of course, if the drawers failed to observe the stipulations required to be performed by them, the defendants would be at liberty to declare the contract at an end and discontinue all further dealings with the drawers of the drafts. And this is a right which every party has to a contract when the other party fails to observe its terms upon his part. The stipulations did not render the agreement to pay the sight drafts conditional, but it imposed restrictions and limitations upon the drawers which, if they failed to observe, the defendants would be at liberty to declare the contract at an end. In Ulster County Bank v. McFarlan (5 Hill, 433), the authority given to the drawers of the draft was subjected to the proviso that the whole amount running and unpaid should not exceed $3,000, and the credit should be good for only one year from date. And yet it was held sufficient to comply with the terms of the statute to render the defendant liable upon the agreement. And similar views were. declared in Barney v. Worthington (37 N. Y., 112). In Johnson v. Clark (39 N. Y., 216) the authority was not without qualification, and yet it was held still to be sufficient to render the party giving, it liable upon the paper drawn. In Merchants’ Bank of Canada v. Griswold (72 N. Y., 472) the drawer was authorized to make drafts on the defendant from time to time as might be necessary, for the purchase of lumber for his account and to consign the same to the. care of P. W. Scribner & Co. But these restrictions wei'e not allowed to deprive the bank, to which the draft had been negotiated, of its right to maintain an action for the recovery of the amount against the defendant giving the authority. It was held, notwithstanding these qualifications, that the authority to. draw was not conditional and that the defendant was therefore liable. Gelpcke v. Quentell (74 N. Y., 599) also sustains the same view.

But if the letters did not create an unconditional obligation to accept and pay the drafts, they still subjected the defendants to the obligation to pay subject to the conditions insisted upon. And if the drawers had not failed to comply with such conditions, the obligation remained in full force against tbe defendants. The power of parties to contract for the payment of paper of this description is not restricted to the form mentioned in the statute; but they may create a liability for such payment against themselves by any valid contract which they may enter into. And such a contract will inure to the benefit of any party afterwards receiving the paper upon the faith of it. For the object of a contract of this description is to give the persons drawing the drafts a credit which will enable them to negotiate the paper upon the faith and reliance of its performances. And when it may be entered into in such a form as to create the obligation for payment, the party taking the paper for value and in good faith upon its credit will be at liberty to enforce the contract by action for his, or its, protection and indemnity. The contract, under such circumstances, is made in part for the benefit of the party receiving the paper upon the faith of it. And to enforce the liability incurred, he or it may maintain any appropriate action under the authority of the rule settled by Lawrence v. Fox (20 N. Y., 268); Burr v. Beers (24 id., 178); Coster v. Mayor of Albany (43 id., 399), where it is stated that “ it is settled in this State that an agreement made on a valid consideration by one with another to pay money to a third can be enforced by the third in his own name” (Id., 411, and Scott v. Pilkington, 15 Abb., 280), proceeded upon the correctness of this statement of the legal principle.

If, therefore, the agreement entered into was conditional, and for that reason not within the language of the statute, and it still imposed the obligation upon the defendants to pay these drafts, they were properly held liable to that extent in this action. The mere form of the agreement for this purpose is not so important as its substance and effect. By their letter the defendants did obligate' themselves to pay the sight drafts of Bader & Co., which they should be advised were drawn against shipments, and for which the drawers were entitled to credit for one week.

It has been objected under the evidence that the drawers had been in default in their remittances for upwards of a week before these drafts were drawn. But the evidence given by one of the defendants himself does not sustain this fact. His testimony is that Bader & Co. had drawn preceding drafts amounting to the sum of $25,000, and had paid by the proceeds of cotton drawn against in favor of the defendants, the snm of $10,000, thereby reducing the indebtedness to $15,000. The. draft for that was drawn on the 19th of December, 1878, but it did not reach New York and was not paid by the defendants until the twenty-third or twenty-fourth of that .month. By the terms of the original letter of the defendants to Bader & Co., the latter were entitled to one week to reimburse this payment by means of remittances, even if they were not previously at liberty to draw to the full extent of $50,000 currency before that obligation eonld truly be said to arise. And as the drafts in suit were -both vn and discounted on the 26th day of December, 1878, there was no such default on the part of the drawers as would entitle the defendants to. refuse payment of these drafts on account of the existence of this indebtedness.

It has also been objected that no advices were forwarded by the drawers showing that these drafts had been drawn against particularly to be described shipments.” And as a matter of fact the defendants seem to be correct in this objection, for the letter of advice, which was written upon the same day as the drafts were dated, simply stated that the drawers were engaged with shipments, which evidently at that time had not been made. But the defendants are not entitled to be relieved by reason of this circumstance, for the drawers of the drafts had previously applied to them for indulgence, relieving them from a strict observance of this obligation. This was done by their letter of the 22d of October, 1878, in which they presented the following request: “ We hope that in exceptional cases you will not insist on the strict fulfillment of the condition that our drafts shall be covered within a week by remittances, as cases may arise where, owing to unfavorable weather or other unforeseen circumstances, it would be beyond all possibility for us to obtain the documents in the required time.” And to that the defendants responded on the the twenty-fifth of the same month in the following manner: “ In regard to the covering of your checks within á week, we would add that in exceptional cases we shall meet your wishes in so far that we shall not hold ourselves strictly to the letter; but we request that you avoid such cases if possible.”

And the evidence which was given presented this as an exceptional case within the language so employed by the defendants. For it was made to appear as a fact that the drawers of the drafts were engaged in obtaining the cotton for shipment, upon which they might be able to remit paper to the defendants of the description of that contained in their letter of the seventh of March, but had been prevented finally from consummating the business by the fact that Bader committed suicide on the day following the date of the draft, and by that circumstance an end was put to the business of his firm, which at that .time proved to be insolvent. ' That this was an exceptional case within the language of defendants’ letter, was stated in the letter of advice written by Bader & Co., concerning the drawing of their drafts and the state of their business. The statement as to this fact was that “ by means of rains and unfavorable weather, such as we have not had for several years, although after the very fine autumn weather the opposite kind of weather was to be expected, we have been greatly delayed in -the shipment of cotton.” This explanation, together with the facts which have been referred to, were sufficient, under the liberty given by defendants’ letter of the twenty-fifth of October, to relieve the drawers of the drafts from a more literal compliance with the preceding obligation to particularly describe the shipment being made by them, and for or on account of which the proceeds of the drafts were desired. The qualification made in this part of the contract was material and important, so much so as to sustain the right of the plaintiffs to recover, even though a particular description of the contemplated shipments of cotton could not at the time be given.

The other authorities which have been relied upon in support of the appeal, on examination do not appear to be in any manner in conflict with the views which have been expressed, and a special reference to them will not, therefore, become necessary. All that could be required for the purposes of the action is, that the plaintiff’s right to maintain it should be shown within the rules and principles to which reference has been made, and that was done by the proofs appearing upon the trial.

The judgment in the case should therefore be affirmed.

Davis, P. J., concurred.

Present —■ Davis, P. J., and Daniels, J.

Judgment affirmed.


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    JOSEPH J. O’DONOHUE and JAMES McGOVERN, Respondents, v. ZACHARIAH E. SIMMONS, Appellant.
    Sheriff— right of, to take a bond of indemnity upon making a levy — liability of the-sureties thereon.

    This action was brought upon a bond given to the sheriff of New York, tO' indemnify him against all liability and damages that might arise or happen by reason of his levying upon, attaching and selling certain personal property, supposed to belong to one Brodie, under and by virtue of an execution issued upon a judgment recovered against that person.

      Held, that the sheriff had a right to demand and receive such a bond, and that it was not void as taken colore officii.

    The property levied upon was of the value of from $12,000 to $14,000, anda judgment for $16,922.35 for its wrongful seizure was subsequently recovered against the sheriff. Only $2,054.05 was made upon the execution over the' expenses of the sale. The court was requested to submit to the jury the question “whether or not the judgment against O’Brien (the sheriff) was not recovered in part for his unlawful oppression and illegal acts committed by him, not covered by the execution or the bond of indemnity.”

      Held, that the court erred in refusing so to charge, as the sureties were only bound to pay or indemnify the sheriff, so far as his liability arose out of what was done in the way of seizing the property and appropriating it to the payment of the debt mentioned in the execution, and not for what was occasioned by the wrongful or negligent acts of the sheriff or his officers.
    Appeal from % judgment in favor of the plain tiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. •

      H. M. Whitehead, for the appellant.

      James U. Smith, for the respondents.
   Daniels, J.:

The action was brought by the plaintiffs as the assignees of the sheriff of the city and county of New York, of his claims and demands upon a bond of indemnity executed and delivered by the defendant and another person to the sheriff. At the time when the bond was executed an execution was issued in favor of Michael S. Purcell, upon a judgment recovered by him against J ames W. Brodie, for the sum of $3,190.97 and it was to indemnify the sheriff against liability for levying upon what was supposed to be his property that the bond was made and delivered. The amount of property levied upon was of the value of from $12,000 to $11,000, and a judgment was afterwards recovered against the sheriff for its seizure in favor of Francis W. Brodie amounting to the sum of $16,922.35. This amount was made by adding interest to the value of the property taken under the execution.

The bond itself was not produced upon the trial, but what was proved to be a copy of it was allowed to be read in evidence, after it was shown that the original could not be produced. The defendant objected to the reading of the copy, but that objection was not well taken, for in addition to the fact that it was shown to be a copy, •evidence was given very satisfactorily proving that the original bond had been subscribed and acknowledged by the defendant. This evidence was obtained from the witnesses Ferguson, Stevens and Maxwell, and it really left no ground of controversy as to this part of the case.

But the right of the plaintiff to maintain an action upon the bond was also resisted upon the further objection that it was not a legal obligation. The condition of the bond- was in the following form: Now, therefore, the condition of the above obligation is such that if the above-bounden obligors shall well and truly save, keep and bear harmless, and indemnify the said James O’Brien and all and every person and persons aiding and assisting him in the premises, of and from all harm, let, trouble, damage, liability, costs, •counsel fees, expenses, suits, actions, judgments, special proceeding and executions, that shall or may at any time arise, come, accrue or happen to be brought against him, them, or any of them, as well for the levying, attaching and making sale under and by virtue of such execution, of all or any personal property, which he or they shall or may judge to belong to the said judgment debtor, as in entering any shop, store, building or other premises, for the taking of any such personal property, then this obligation to be void, else to remain in full force and virtue.

And the objection taken to it was that it was not such a bond as could be exacted by the sheriff. But there is no principle of law prescribing the precise form in which a bond shall be made to indemnify an officer against the consequences of levying an execution upon property believed to be that of the judgment debtor. The statute prohibiting sheriffs and other officers from taking bonds in any other case or manner than such as are provided by law, has no application to a bond of this description. (3 It. S. [6th ed.], 448, § 49.) That applies only to bonds which may be required by the officer from parties becoming subject to his authority. ( Winter v. Kinney, 1 Comst., 365 ; Shaw v. Tobias, 3 id., 188.) It has no reference or application whatever to a bond of this description. But such a bond may be taken by the officer as will be best adapted to the exigencies of the case in which it shall be designated for his protection. (Reilly v. Coleman, 62 How., 289 ; Clark v. Woodruff, 83 N. Y., 518.)

It has been the constant as well as the unquestioned practice for officers to receive such bonds and to rely upon them for their indemnity and protection, and no serious doubt has been entertained of their right to do so.

It was further objected that the evidence was not sufficient to prove that the execution was levied upon property which either the plaintiff in it, or the officer executing it, judged to belong to the judgment debtor. But as it is not to be presumed that the officer intentionally levied upon property which he did not believe to be the property of the judgment debtor, it is to be inferred, on the contrary, that what he did take he supposed and believed was liable to his execution. This objection, therefore, was practically overcome by the conduct of the officer in the execution of the process.

But, while it was proved that the property was taken under the execution, it did not result from that circumstance alone that the defendant became liable for the full penalty of the bond, which was in the sum of $6,381.91, and to which interest was added to make up the amount of the , verdict rendered in the case. To establish this liability it was essential that the property levied upon should also be appropriated to the payment of the judgment on which the execution had been issued. And that was not shown to be the fact on the trial of the action. All that was made over the expenses upon the execution was the sum of $2,054.05. The large difference between this amount and the value of the property taken under the ■execution afforded some reason for believing that it had not all been sold and appropriated to the payment of the debt due to the judgment creditor. It is hardly credible that so small a sum should be realized ■out of property in value amounting to between twelve and fourteen thousand dollars. And evidence was given in the course of the trial to show that the verdict in the action against the sheriff was in part recovered for goods taken by him and not advertised, •or brought. to some public store. From these facts there was reason to believe that a large portion of the property seized had been lost or misappropriated by the neglect or misconduct of the •officer. And for that the sureties in the bond would not be liable, for the loss of the sheriff to that extent would not result from the ■conduct of his officer under the execution, but from a positive wrong’upon his part for which he himself, and not the sureties in the bond, would be responsible. (People v. Hopson, 1 Denio, 574.)

At the close of the trial the court was requested to submit the question to the jury: “Whether or not the judgment against O’Brien was not recovered in part for his unlawful oppression and illegal acts committed by him not covered by the execution or bond of indemnity.” And that the court declined to do, but directed a verdict in favor of the plaintiff for the sum of $8,759.18. The refusal to submit this proposition to the jury was erroneous under the evidence, for the sureties in the bond were only bound to pay ■or indemnify the sheriff so far as his liability arose out of what was done in the way of seizing the property and appropriating it to the payment of the debt mentioned in the execution. So far as •any property had been lost by the default, omission or misappropriation of the sheriff’s officer, he could not look to the bond for indemnity. It was not given to him to protect him against the misconduct of his own officer in the violation of his duty, but its object was to provide indemnity to the sheriff against the ■official acts of the officer to whom the execution was committed, .and whether the recovery against the sheriff included the value of goods lost or missappropriated by the fault of the deputy, was, under the evidence, a question which should have been submitted to and decided by the jury. This was. an important inquiry in the case, and the defendant has good reason to complain of the manner in which it was disposed of at the trial. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


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    JOHN BETZEMANN, Respondent, v. MARY E. BROOKS, Appellant.

      Attachment — maty be vacated on motion after it has become inoperative by reason of a failure to serve the summons — Code of Civil Procedure, sec. 638.
    A motion lies to vacate an attachment which has become inoperative by reason of the failure of the plaintiff to serve the summons within thirty days from the time of the issuing and service of the attachment.
    Appeal from an order made at a Special Term, denying a motion to vacate an attachment.

      Eelly c& MeRae, for tlie appellant.

      Edward P. Wilder, for the respondent.
   Daniels, J.:

After the attachment was issued, it was served by the officer on ■Susan E. Donahue as the occupant of premises owned by the ■defendant, and also upon the Bank of the Metropolis, where it was reported that she had funds on deposit, but which the officer was informed was not the fact. This service was made on the 26th ■day of June, 1883, but the summons in the action was in no form served until the 26th of July, 1883, which was more than thirty days after the issuing, and of this service, of the attachment. The ■court denied the motion to vacate it, apparently on the ground that it had become inoperative.aud could be of no possible injury to the defendant, but that was not an answer to the motion. Proceedings had been taken under the attachment, and although it had become inoperative by reason of the omission to serve the summons, the ■defendant was still entitled to an order definitely declaring that to be the fact. (Blossom v. Estes, 22 Hun, 472; affirmed, 84 N. Y., 614.)

Under this authority the order made should be reversed, with the usual costs and disbursements, and an order entered vacating the attachment.

Davis, P. J., and Bradt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and attachment vacated.


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    JOHN FISCHER, Appellant. v. GEORGE F. LANGBEIN and Others, Respondents.
    Costs— separate bills of costs — when the respondents, upon an appeal, can tax but one bill.

    In an action for false imprisonment, the two defendants having answered and defended separately, were allowed separate bills of costs. Upon an appeal taken by the plaintiff to the General Term, the case of each defendant was argued by the same counsel. The General Term affirmed the judgment, “ with costs and disbursements of said appeal to the defendants, respondents, to be taxed by the clerk of this court.”

      Held,, that the respondents could tax but one bill of costs.
    Appeal from an order made at a Special Term denying a motion for the readjustment of costs.

      Henry Wehle, for the appellant.

      George F. Lcmgbein and Jesse K. Furlong, for the respondents.
   Daniels, J.:

The action was for false, imprisonment, and upon the trial the-plaintiff was non-suited. The defendants, having answered and defended separately, were allowed separate bills of costs. From the judgment the plaintiff appealed to the' General Term, and it appears from the order which was entered that the defendants were each represented by the same counsel upon the appeal arguing the case in their behalf. By the decision which was made the judgment was affirmed with costs and disbursements of said appeal to-the defendants, respondents to be taxed by the clerk of this-court.” The defendants presented separate bills of costs upon the appeal, which were allowed by the clerk, and sustained by the order from which the appeal has been taken, and a large array of authorities have been cited in support of their respective rights to recover such costs. But these decisions were made under circumstances not controlling upon this application, for they were generally directed to the consideration of the right of two or more defendants, defending separately, to costs upon the determination of the issues in the action in their favor, while the present case depends upon the effect which is to be given to the language of the order entered upon the decision of the appeal. That certainly does not award separate costs to each of the defendants, but it merely gives a general direction affirming the judgment, with costs. And as there was but one appeal in the case, and but one notice of it served, it could only have been intended to include the costs of that appeal. This construction seems to have been given to a similar direction made by the Court of Appeals in Von Keller v. Schulting (45 How., 139), while for other reasons it was not extended to the order of the General Term. In the case of the West Shore, etc., Railway Company (28 Hun, 505) a like point was considered .by the General Term of the Second Department. The Court of Appeals there had dismissed the proceedings with costs, and that direction was held to include only one bill of costs to all the respondents. This decision is entirely consistent with the language of the order now before the court, and plainly restricts the right of the respondents to one bill of costs on the appeal. The order should be reversed, together with the usual, costs and disbursements, and an order entered limiting the costs of the appeal to one bill.

Davis, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Daniels, J.

text:
    ROYER WHEEL COMPANY, Respondent, v. ROBERT W. FIELDING and JAMES E. FIELDING, Appellant, Impleaded, etc.

      Judgment creditor — an action to set aside a fraudulent conveyance, and to hare the property adjudged to be subject to the lien of his judgment and the execution issued thereon and then in the sheriff's hands, is not affected by the return, during its pendency, of the execution — when devisees of the judgment debtor need not be made parties — a voluntary conveyance by an insolvent is void — an assignment must be assented to by the assignee —1877, chap. 466, sec. 2 — When a fn’m creditor may.set aside an assignment of the individual property of the partner — misjoinder of causes of action.

    The plaintiff, having recovered a judgment against a firm composed of Robert and George Fielding, issued an execution thereon, and, while the same was in the hands of the sheriff, brought this action to set aside as fraudulent a general assignment for the benefit of creditors and deeds of certain lands which had been made and delivered by one of the debtors after the debt owing to the plaintiff had been incurred, but before the judgment therefor had been recovered. The plaintiff sought to have the assignment and deeds adjudged to be fraudulent and void, and the property affected by them subjected to the lien of his judgment and of the execution issued thereon. After the commencement of the action the sheriff returned the execution wholly unsatisfied.

      Held, that the return of the execution by the sheriff during the pendency of the action did not prevent the plaintiff from maintaining and prosecuting it.
    After the recovery of the plaintiff’s judgment, and before the commencement of this action, George Fielding, one of the judgment debtors, died leaving a will by which he devised and bequeathed all his real and personal property to his widow and two sons.

      Held, that as the property to be affected by this action had prior to the testator’s death been conveyed by him it could not be held to be included within these provisions of the will, and that it was therefore unnecessary to make the widow or children parties to the action.
    Voluntary conveyances, based upon a merely nominal consideration, made by an insolvent debtor are, as against his creditors, fraudulent and void as a matter of law.
    The judgment debtors, who were partners, joined in a general assignment of their joint property for the benefit of their joint creditors. Subsequently one of the said debtors assigned all his individual property to the same assignee for the benefit of his creditors, according to the provisions of the joint assignment.

      Held, that the second conveyance was, in effect, a distinct and separate assignment, and that the assent of the assignee, subscribed and acknowledged as provided in section 2 of chapter 466 of 1877, was essential to its validity.
    That the fact that the property to be affected by the judgment was the individual and separate property of the debtor, and was, for that reason, primarily liable for the payment of his individual debts, did not prevent the plaintiff from maintaining the action as no claim was made by any individual creditors, and as the plaintiff’s judgment became when docketed a lien upon the real estate individually owned by the debtors.
    That there was no misjoinder of causes of action in the complaint.
    Appeal from a judgment in favor of the plaintiff, recovered on a trial at the Special Term.

      Joseph A. Shoudy, for the appellants.

      Wilson M. Powell, for the respondent.
   Daniels, J.

The action was prosecuted by the plaintiff as a judgment creditor of Robert and George Fielding, upon whose judgment an execution against property had. been issued, and was at the time of the commencement of this suit in the hands of the sheriff of the proper county. The object of the action was to avoid as fraudulent a general assignment made by the judgment debtors for the benefit of their creditors, and deeds of certain lands executed and delivered by George Fielding to James E. Fielding, and another deed executed and delivered by Robert’ Fielding to Robert E. Fielding. These instruments were all made and delivered after the debt owing to the plaintiff had been contracted and incurred, and before the recovery of the judgment for the collection of which this action has been brought. And its object appears to have been to obtain the judgment of this court adjudging the assignment and deeds to be fraudulent and void, and the property affected by them to be subject to the lien of the judgment and execution in favor of' the plaintiff. It depended therefore wholly upon the inherent equitable power of this court to afford relief to a party whose legal remedy proved to be inadequate, and it was not dependent upon the authority of the statute providing for the institution of a creditor’s action after the return of an execution against property unsatisfied. (3 R. S. [6th ed.], 190, §55; - Code, § 1871.)

Upon the trial of the action it was made, to appear that the sheriff returned the execution in his hands wholly unsatisfied after the commencement of this suit, and it has been insisted that this circumstance .deprived the plaintiff ofi.'tha right to maintain the action in the form in which it was commenced and prosecuted. That it was essential that an execution should be issued upon the judgment before the commencement of this action, as a creditor’s suit, seems to be now well settled by authority , and it has in several instances been deemed necessary that the execution should also continue in the hands of the officer' during the progress of the action, to entitle the plaintiff successfully to maintain it. This was in general terms stated by Mr. Justice Nelson in McElwain v. Willis (9 Wend., 549, 561). It was there said that “ the jurisdiction of the court rests upon the right or title of the complainant to the property in question acquired by the proceeding at law upon the judgment or execution, and consequently the return of the latter by the officer is not only not essential but would be fatal to the relief.” And this statement was repeated without any consideration of its legal propriety, solely upon the weight of this authority, in Mechanics’, etc., Bank v. Dakin (51 N. Y., 519, 522). But in neither of these cases was this particular point before the court for its decision, but it was a passing observation not required to be made. And that it did not receive the approbation of the Court of Errors in the first case, may be assumed, from the fact that the other opinion which was delivered by Senator Tracy in favor of affirmance, proceeded on this subject upon the conclusion that it was only essential that the execution should continue to remain in the hands of the sheriff during the pendency of the action, to enable the creditor to maintain it as to the personal property in controversy. Eor without the existence of the execution the creditor would have no lien upon that description of property and would be in no condition to question the disposition of it by the debtor alleged to be fraudulent. Upon this subject it was said by him, that “ it is now necessary to inquire whether the complainant shows enough in his bill to bring his case within the other class of relief, which is given in aid of a judgment or execution, at law, which has acquired a lien on specific property of the debtor, but which lien cannot be made operative to the satisfaction of the debt, in consequence of some fraudulent or inequitable obstruction or embarrassment which is interposed. In cases of this description, the aid of chancery is not sought, strictly speaking, for a new process, or to enlarge the functions of the legal process, but to remove some extraneous impediment by which its functions are crippled or deranged. For this latter relief a party rightfully applies to the Coui’t of Chancery, but in his application, he must show that the relief, if granted, will be effectual; that is, that it will enable him to pursue and obtain the satisfaction of his debt, by means of the legal rights and remedies to which he is already entitled. Of course it is not necessary in this case to show, by the return of an execution unsatisfied, that he has exhausted his remedy at law, for that execution may be the very instrument by which, when the court has removed the impediment to its operation, he will obtain the perfect satisfaction of his rights ; and a judgment creditor may file a bill in respect to his lien on freehold estates without proceeding to execution, but not if his lien be on leasehold and other personal property, for that exists only from the time the execution is lodged in the sheriff’s hands.” (McElwam v. Willis, supra, 567.)

Neither of these cases, therefore, can be regarded as settling the proposition against the plaintiff that the execution must remain in the sheriff’s hands after the commencement of its suit as a creditor to enable it to set aside fraudulent dispositions made of the debtor’s real estate. Nor does the case of Adsit v. Butler (87 N. Y., 585) support this objection, for it was not then before the court for consideration, and was only passingly referred to in the opinion which was delivered. And the same observation is as applicable to the Genesee River National Bank v. Mead, (13 Weekly Digest, 356, and 18 Hun, 303). In neither of these cases was this point presented by the facts before the court, and the observations, therefore, which were casually made upon it, are not entitled to be accepted as controlling.

In- the recent case of Buswell v. Lincks (8 Daly, 518), an execution in the sheriff’s hands was not deemed indispensably necessary to the right of the creditor to maintain his action as to real estate which had in form been conveyed away by the debtor; and in Shaw v. Dwight (27 N. Y., 244), it was-considered by Denio, Ch. J.,, that the execution itself should be returned to enable the creditor to maintain such an action as the present. His conclusion was that even where it is sought to subject land by removing an obstruction to the plaintiff’s execution * * * a fieri facias should be returned unsatisfied, for the purpose of showing that the plaintiff is under the necessity of asking the aid of the court on account of his inability to collect his debt by process against the debtor’s goods or chattels; but not for the purpose of perfecting his lien upon the land, for that is bound as strongly as it can be by the docketing of the judgment.” (Id., 249.) And it was upon his opinion that the judgment from which the appeal had then been taken, was affirmed by the court. In Fox v. Moyer (54 N. Y., 125) the action was of the same description, and it was said by the court that it had “ sometimes been held, that the lien of the judgment alone gave the plaintiff his standing in a court of equity without any execution. But the weight of authority seems to bo that the judgment, with an execution issued, and not returned, is sufficient to enable the plaintiff in such case to maintain his action.” (Id., 129.) In that case it was alleged in the complaint that an execution had been issued and returned unsatisfied, and no objection to the absence of. proof of these facts was made upon the trial, and' for that reason they were assumed in the disposition of the case. And by that disposition it was necessarily held that the return of the execution in no manner deprived the plaintiff of the right to maintain his action, and that, by a necessary construction, seems to be a decisive authority sustaining the case of the present plaintiff. In Geery v. Geery (63 N. Y., 252), it was held that if the creditor “ seeks real or personal estate which would be liable to execution, but for fraudulent obstructions placed in the way by the debtor, he must have issued his execution and then he may invoke the aid of the equity court to remove the obstruction; and the remedy in equity is given in such cases because legal remedies are inadequate.” (Id., 256.) And to satisfy this rule, all that can be required in any event, as essential, is that the execution shall be issued at the time of the commencement of the action. The right of the plaintiff to prosecute such an action is to be determined by the facts appearing to exist at the time of its commencement, and it would be sacrificing substance to mere form if it should be held that the return of the execution during the pendency of the suit would deprive the creditor of the right to continue its prosecution as to the debtor’s real estate, when a further execution could be immediately issued to render the judgment effectual in case it resulted in setting aside the alleged illegal dispositions of such property. In Pardee v. De Cala (7 Paige, 132), which was a creditor’s suit under the statute, the execution was returned after the action had been commenced, and it was held that it could'not be maintained because of that circumstance. It was not expressly made to appear for what reason this conclusion was adopted, but very 'manifestly it was under the general principle of law that the plaintiff can be entitled to maintain his action only upon the facts as they exist at the time when it may be commenced. And this principle would seem to be sufficiently broad to sustain the conclusion arrived at by the court upon this part of the case. It cannot with any plausibility of reasoning be defeated by this circumstance more effectively showing, as it did, the necessity for the plaintiff’s action to enable it to obtain satisfaction of its judgment out of the real estate owned and conveyed away by its debtors.

George Fielding departed this life before the commencement of this action, and after the recovery of the plaintiff’s judgment. By ■ his will he devised and bequeathed all his real and personal property to his widow and two sons, and it was objected that they should have been made parties to this action. But as the property to be affected by it had been previously conveyed by the debtor, it could not have been intended to include it within these provisions of the will The devisees therefore had no interest in it which could be injuriously affected by this action, and they were not required to be made parties. ( Voorhees v. Howard, 4 Keyes, 371; Fox v. Moyer, 54 N. Y., 125, 130, 131.) This objection, also, was therefore properly overruled by the court.

The two conveyances made by George Fielding and wife to James E. Fielding, were held to be fraudulent and inoperative against the plaintiff as a creditor, for the reason that it appeared that they were given upon the nominal consideration of one dollar each. The conclusion adopted as to the character of these conveyances was not, however, solely placed upon this circumstance, as it could not be under the provision made upon the subject by the statute. (3 R. S. [6th ed.], 145, § 4.) For the evidence went farther and established the fact that the debtors were insolvent at the time when these conveyances were made, and that circumstances, added to the fact that the deeds were executed upon a mere nominal consideration, was sufficient to induce the conclusion that they were fraudulently made. In Edgell v. Hart (5 Seld., 213), it was said by Denio, Cb. J., that “ a deed of gift by a person indebted would, I presume, be void as against creditors as a matter of law, as well since as before the statute.” (Id., 218.) And the same circumstances were in like manner held tobe controlling in Erickson v. Quinn (47 N. Y. 410), where it was held that “ the fact that a deed is without consideration is not of itself sufficient to make it fraudulent as to creditors. (2 R. S., 137.) But if the grantor is insolvent at that time, the want of consideration is a controlling fact on the question of fraud.” (Id., 413.) And the presumption that such is its character cannot be overthrown by evidence of good intent or generous feelings. “ It must be overcome by circumstances showing, on their face, that there could have been no bad intent, such as that the gift was a reasonable provision, and that the debtor still retained sufficient means to pay his debts. He can no more delay his creditors by such voluntary conveyance than he can actually defraud them.” (Cole v. Tyler, 65 N. Y., 73, 78; Champlin v. Seeber, 56 How., 46; Fox v. Moyer, supra, 131.)

The decision of the court holding these conveyances to be fraudulent and void as to the plaintiff was, therefore, well warranted by the facts which were made to appear.

The deed by Robert Fielding to Robert W. Fielding was made upon a like consideration, and was for that reason also held to be fraudulent and void at the determination of the trial. Before this deed was executed the debtors had joined in a general assignment for the benefit of their joint creditors. This assignment was sustained as made in good faith under the evidence in the case, but it did not include any portion of the individual property of the assignors, and when the deed last mentioned was executed, it was expressed to be to the grantee as assignee for the benefit of creditors under the assignment, and the property was conveyed to him, his successors and assigns, to be held and disposed of according to the provisions of the assignment for the benefit of creditors. But as the property described in this deed had neither been included in nor affected by the assignment, which was joint only in its nature, the attempt made by the deed to subject the individual property of one of the assignors to the assignment was, so far as the deed extended, another and an independent assignment. It was substantially and practically an assignment of liis individual property to the assignee for the benefit of the creditors, as they were provided for by the joint general assignment. It was no less in its effect than a distinct and separate assignment, and as the assent of the assignee was not subscribed or acknowledged by him, and was in no manner made to appear in writing, as that has been required by section 2, chapter 466 of the Laws of 1877, the deed was not a legal assignment of, this debtor’s property, but it left it, as the court held it to be, subject to the right of the plaintiff as a creditor in this action.

It has been further claimed that the action could not be maintained, because the property mentioned in the deeds was the individual and separate property of the debtors, and primarily liable for that reason to the payment of their individual debts. But it does not appear that any persons had demands of this nature, which should first be satisfied out of this property. No creditor has appeared to make any such claim, and when the judgment was recovered, it by statute became a lien upon the real estate individually owned by the judgment debtors. And it is to enforce that legal lien against the property that this action has been prosecuted and maintained by the plaintiff. The judgment debtors cannot shield themselves from its legal consequences by invoking this equitable principle in their favor.

There was no misjoinder of causes of action in the complaint. The object was to set aside as fraudulent these different dispositions which the debtors had endeavored to make of their property. And its legal scope would appropriately include all the acts of this description by which the plaintiff’s right to satisfaction of its judgment might be prevented, delayed, or for the time avoided. This point was presented and considered in Reed v. Striker (12 Abb., 47), and it was there held by the Court of Appeals that such an action could not be objected to on the ground that it included distinct and several transactions where they were within the appropriate limits of the relief usually given in- creditor’s suits. No ground appears upon which the judgment in this case can, to any extent, be impeached. It should therefore be affirmed, with the usual costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.