text:
    ISAAC S. EDWARDS, Appellant, v. ABRAHAM D. CANDY, Respondent.

      Eviction — what acts do not constitute — when waived by taking new lease.

    Defendant leased certain premises to the plaintiff in March, 1874, for one or five years, at the option of the plaintiff. During the year 1874 defendant committed a number of acta which the plaintiff claimed constituted an eviction, and to recover damages for which this action was brought. At the expiration of the year, plaintiff- decided to continue the lease for four years more. Held, that such election was equivalent to taking a new lease, and as plaintiff had not been expelled from or abandoned the premises, it was a conclusive defense ■ to an action for damages sustained because .of the alleged eviction during the previous year.

      Semble, that an eviction cannot take place without an actual expulsion from or an abandonment of the demised premises. What acts constitute a constructive eviction, considered.
    Appeal from a judgment in favor of the defendant, entered, upon the report of a referee.
    This action- was brought by the plaintiff to recover damages alleged to have been sustained by his being evicted from certain premises leased to him by the defendant.
    The defendant on March 2d, 1874, leased to the plaintiff a farm and summer boarding-house, at East Hampton, for one year or five, at the option of the plaintiff. The plaintiff entered into possession, and at the end of the year elected to continue the lease for four years more. On November 6th, 1875, plaintiff abandoned the premises, alleging that he was compelled to do .bo in consequence of the bad and injurious conduct of the defend-, ant.
    The defendant denied any eviction, and set up a counter-claim* The acts (most of which were committed in the year 1874), which the plaintiff set forth in the complaint as constituting an eviction were, that the defendant “ disturbed them (the boarders) by brutal conduct in his parlor by ringing the bell on the Sabbath; by ordering the plaintiff’s company off the premises. Got into a passion, and threw the carving-knife while eating with the company. Disturbed the company by thumping on the house before the bell was rung in the morning. Often made indecent exposures of his person to the inmates of the house. Often sat in the privy with his clothes down and the door open. Went about the house with the front of his pants down, declaring he would do what he liked. Frequently slandered the plaintiff to his guests. Told persons who came there to look at rooms, that he did not want them to stop there, for the plaintiff was not fit to keep, boarders. He told a gentleman that if he came or sent any one there to board, he would be done with him forever. Declared to the plaintiff that he would do all he could to injure him. Also forbid the plaintiff’s laborer to repair the fence, and ordered him off. Cut boughs from the trees near the milk-house; interfered with the washer-woman; abused the wife of the plaintiff, and threatened violence toward her with his cane. Refused to furnish anything for repairs on the farm, or to replace anything worn out in the house. Refused to let the plaintiff use his light spring-wagon, and plaintiff was obliged to use his own wagon, by means of which wrongs and injuries the plaintiff was-obliged to leave and did leave the premises on the 6th day of November, 1875, and suffered great loss and damage during the time he was there.”

      ■Miller if Tuthill, for the appellant.

      J. Lawrence ¡Smith, for the respondent.
   Gilbert, J.:

It would be a great stretch of the doctrine of constructive eviction to give that effect to the acts committed by the defendant. We are inclined to hold that such an effect ought not to bo given to them. (Hunt v. Cope, Cowp., 242; Allen v. Pell, 4 Wend., 505; Ogilvie v. Hull, 5 Hill, 52.) Later cases have extended the ride as laid down in those cited. (Dyett v. Pendleton, 8 Cow., 727; Cohen v. Dupont, 1 Sand., 260;, Edgerton v. Page, 20 N. Y., 281; Myers v. Burns, 35 id., 272.) But a substantial deprivation of the beneficial use of the demised premises, or a part thereof, is, according to all the cases, essential to constitute an eviction. Injuries to the tenant, Which do not effect his enjoyment of the premises, it would seem, are not sufficient for that purpose. But it is unnecessary to pass definitely upon this question. For the lease to the plaintiff was made in March; 1874, and was for one or five years, at the option of the plaintiff: Most of the acts of the defendant, of which the plaintiff complains, were committed in the year 1874. The plaintiff l'emained in possession during the whole of that year, and shortly before the expiration thereof elected that the term should be extended four years. Such election was equivalent to the taking of a new lease for four years. The plaintiff having remained in possession during the whole of the term, antecedent to the exercise of his option, there was no eviction, actual or constructive, during that period. It is impossible that an eviction should have occurred without an actual expulsion from, or an abandonment' of the demised premises. (Edgerton v. Page, supra.) The fact, therefore, that the plaintiff remained in possession throughout the year-1874, is a conclusive defense to any claim for damages which he sustained in that year.

It appeai-s that the demised premises had been long used by the defendant as a boarding-house, and that the plaintiff hired them for the same purpose. The plaintiff claims that the defendant dissuaded persons from coming there to board by remarks made in 1875, which were disparaging to the plaintiff, and that in consequence his profits were diminished. Assuming this claim to be well founded, we think the defendant’s conduct did not amount to an eviction. The evidence fails to convince us that the plaintiff abandoned the premises in consequence thereof. On the contrary, he remained in possession until November, 1875, when the season for boarding had ended, and we are satisfied that he quit the premises because his business had turned out to be unprofitable. How much, if any part, of that result is attributable to the defendant, and how much to the plaintiff, it is impossible to tell. The other improper acts imputed to the defendant, which occurred in 1875, seem not,to have been relied upon on the argument, and were too trivial to form the basis of a cause of action,. Upon the whole, we think that the plaintiff failed to establish any right of action. The counter-claim was satisfactorily established to the extent allowed by the referee. As the plaintiff has made no point on that subject, a discussion of it is unnecessary. The judgment must be affirmed, with costs.

Barnard, P. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    STEPHEN McCABE, Appellant, v. THE DUTCHESS COUNTY MUTUAL INSURANCE COMPANY, Respondent.

      Insurance company — when estopped from enforcing conditions of policy — agents authority.

    Plaintiff applied to defendant’s agent for insurance, stating that he was going to insure in another company ; the agent asked him to insure wholly with him ; plaintiff refused, and said he wanted to insure half with him and half with another agent. Defendant’s agent finally agreed, and gave him a policy. Three years after, plaintiff procured an equal amount of insurance in another company.

      Held, that the verbal consent of the agent, if he was authorized to give it, operated as a waiver of a condition of the policy, avoiding it if other insurance was made without being indorsed upon the policy, and prevented the company from, enforcing such condition.
    An insurance company is barred by the acts of its agent, though in excess of the written authority given him, where he has been accustomed to do similar acts and the company has theretofore approved them.
    An insurance agent, authorized to indorse a written consent to further insurance, has authority to waive, orally, the condition in the policy requiring such indorsement.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    The action was brought upon a policy of insurance to recover a loss sustained by tire. The defense was a breach of a condition of the policy, providing “that in case the assured shall hereafter make any other assurance on the same property, and shall not with all reasonable diligence give notice thereof to this company, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of nó further effect.” The insurance policy in question, was issued by one Barton, as agent for the company.

      Daniel W. Guernsey, for the appellant.

      John Thompson, for the respondent.
   Gilbert, J.:

I think that the court erred in granting a nonsuit. The condition whereby it was declared that the effecting of another insurance upon the property insured, without the written consent of the defendant, should avoid the policy, might be waived by parol, by the defendant or any authorized agent. (Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117-122.) The questions, then, are: 1. Did Barton, in fact, waive that condition in the case before us? and 2. Had he authority so to do?

With respect to the first question, the only testimony on the subject was given by the plaintiff, who testified, in substance, that at the very time he made the application to ■ Barton for the insurance in question, he told him that he “was going to. insure in another company;” that Barton said: “Mr. McCabe, let me insure you wholly myself; I will do it;” that the plaintiff declined such proposal, and replied that he “wanted to insure half with him (Barton) and half with another;” that Barton agreed to it, and finally insured him accordingly. It is but a just and reasonable inference from this testimony, that Barton consented beforehand that the plaintiff might procure an additional insurance to a like amount with that granted by the defendant, and that such consent was one of the inducements which influenced the plaintiff in making the contract in controversy. The subsequent insurance does not exceed in amount that of the defendant. The fact that it was not effected until three years after the consent was given, it seems to me, is hot at all material. The consent was unrestricted as to time, and I am unable to perceive that the defendant has sustained any injury’ by the plaintiff’s delay in availing himself of it. None has even been suggested. The verbal consent, therefore, must be deemed as effectual as if it had been given at the time the subsequent insurance was effected. In either case, such a consent operates as a waiver of the condition, or as an estoppel in pais against the defendant, provided Barton had authority to give it. (51 N. Y., supra; Maher v. Hibernia Ins. Co., 67 id., 284; Van Schoick v. Niagara Ins. Co., 68 id., 434, and cases cited.)

It is apparent that the act of Barton is in excess of the written authority conferred upon him — that was, only to make surveys, and receive applications for insurance. But the authority actually exercised by him, with the approval of the defendant, was much greater. Among other acts, he had been in the habit, for years, of indorsing other insurances upon policies, and the company had always approved such acts. The defendant thus held Barton out as having authority to give its consent to other insurances upon the property which it had insured. Ilis name appears on the policy in this case as the defendant’s agent. The question is not merely what his real authority was, but what was his apparent authority, as shown by his acts, done with the knowledge and assent of the defendant? I am of the opinion that persons who dealt with the defendant, through Barton as its agent, had a right to infer that he was authorized to give the formal consent required by the condition referred to, and that one, clothed with such an authority, is authorized to waive a performance of the condition before mentioned. (Bodine v. Exchange Ins. Co., 51 N. Y., 122.)

The judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Gilbert and Dykman, JJ.: Barnard, P. J., not sitting.

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


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    STEPHEN McCABE, Appellant, v. THE FARM BUILDINGS FIRE INSURANCE COMPANY, Respondent.

      Policy of insurance — conditions in — when company estopped from enforcing»

    In an action upon a policy of insurance, it appeared that, at the time it was issued, there was other insurance upon the same property. The policy contained a clause avoiding it if there should be other insurance upon the property, unless its written consent thereto was indorsed on the policy. Its written consent had never been indorsed on the policy.
    Upon the trial, plaintiff offered to prove that one Higginson was the agent of the defendant; that he solicited the insurance from plaintiff, who informed him of the prior insurance and the particulars thereof, and said he wished to continue it; but Higginson proposed to insure him for the amount of this policy in addition to the prior insurance; that the plaintiff agreed, and paid him the premium and subsequently received the policy, not .knowing- that it contained the said clause. The evidence was rejected.

      Held, that this was error. First, because, if true, the defendant would be estopped from enforcing the condition ; and second, because, under the offer, evidence might have been given to show that Higginson’s agency was of such a character as to render his acts binding on the defendant.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed by the court at Circuit.
    The action was brought upon a policy of insurance, to recover for the burning of the insured property.

      Dan’l W. Guernsey, for the appellant.

      8. Earl, for the respondent.
   Gilbert, J.:

The policy in this case contained a clause to the effect that the defendant should not be liable for loss if there was other insurance on the same property, without the written consent of the defendant indorsed on the policy. It was admitted by the plaintiff that he had other and prior insurance on the same property covered by the defendant’s policy, and that the same was in force at the time .the plaintiff procured said policy; that the defendant never gave any consent to such prior insurance, and that no written consent to the same was ever indorsed on the last-named policy. Prima facie, these admissions established the defense. But before the admissions were made, the plaintiff had testified that he got the policy in suit from one Higginsou; that Higginson was the agént, and gave him a receipt for the premium paid, and that Higginson solicited the insurance. The plaintiff offered to show that the agent Higginson called on the plaintiff, and proposed to insure the property mentioned in the policy of the defendant; that the plaintiff informed him that he had the prior insurance mentioned, and specified the particulars thereof; that it was then talked between the agent and the plaintiff that there was not insurance enough; that the plaintiff said he wished to continue the prior insurance; that Higginson proposed to insure him in the defendant company for the amount of the policy in this action, in addition to said prior insurance; that the plaintiff agreed thereto, and thereupon paid the premium; that four days afterward Higginson delivered to the plaintiff the policy in suit, and that the plaintiff did not know that it contained the condition respecting other insurance.

The court rejected the evidence offered as being inadmissible, and thereupon nonsuited the plaintiff. We think the court erred.

The plaintiff had already testified that Higginson was the defendant’s agent, and the defendant had neither cross-examined him nor given any evidence on that subject. Higginson negotiated the contract of insurance, and received the premium paid. The defendant by issuing the policy adopted and ratified those acts. Omitting a consideration of the extent of Higginson’s authority, let us see how the case stands, assuming that he had authority to-do, on behalf of the defendant, what he actually did, namely, negotiate the contract of insurance, and receive the premium which the plaintiff paid. It is a general rule, applicable to principals of every sort, that notice to the agent is notice to the principal, if the fact is brought to the knowledge of the agent while he is acting for his principal in the course of the very transaction which is the subject of the suit. (Story Agency, § 140; Bank of U. S. v. Davis, 2 Hill, 461.) Higginson mast, on this appeal, be deemed to have had notice of the prior insurance while negotiating the contract-in suit in behalf of the defendant, and to have agreed to make the present one in addition thereto. The defendant having received the premium and issued the policy to complete such negotiation; must also be deemed to have constituted Higginson their agent to conduct that negotiation. The case is, therefore, brought within the principle stated, and the defendant must be treated as having issued the policy in suit to one who had no knowledge of the condition against prior insurance, after it had received notice of such prior insurance. The fact that the notice was not given to the officers of the company personally makes no difference, for if the rule were otherwise, the legal effect of notice might be avoided in every case by employing an agent. The law, therefore, makes no distinction in a case like this between notice to an agent or to one of several agents, and notice directly to the principal except in respect to guilt. Whether the notice to the agent be actual or constructive, the same kind of notice is attributed to the principal, whether actually communicated or not. (Fulton Bank v. N. Y. & S. Canal Co., 4 Paige, 127; North River Bank v. Aymar, 3 Hill, 262; Hovey v. Blanchard, 13 N. H., 145; Coolidge v. Charter Oak Life Ins. Co., 1 Missouri App., 109.) It would be unreasonable to suppose that the defendants intended to issue a policy which was void the instant it was issued, unless we conclude that they designed to commit a fraud upon the plaintiff. Hence the only inference from the facts which is compatible with good faith on the part of the defendants, is that the condition as to prior insurance was waived. The case of Van Schoick v. The Niagara Ins. Co. (68 N. Y., 434), is a full authority for this position, and it also furnishes an answer to the point suggested by the defendant’s counsel that the contract cannot be contradicted or varied by parol evidence.

If, however, a technical waiver was not shown, the defendant is estopped from setting up the condition, for the reason that it is apparent that the plaintiff was induced to forego a formal compliance with the condition by the conduct of the person who negotiated the contract on behalf of the defendant. To give effect to the condition after such conduct, would require the court to sanction a gross fraud on the plaintiff. (Cont'l Bank v. Bank of The Commonwealth, 50 N. Y., 575; 68 N. Y., supra.)

We are also of opinion, that if the foregoing views are doubtful, the evidence rejected should have been received, because the offer of- the plaintiff embraced evidence of the agency of Higginson without any limitation respecting the nature of his agency. The offer was to prove the particulars of a transaction with Higginson the agent. Under such an offer evidence might have been given of a general agency, or of an agency of a limited character, but which would, nevertheless, render his acts in this case binding on the defendant.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Present — Gilbert and Dykman, JJ.; Barnard, P. J., not. sitting.

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


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    THE BIRMINGHAM NATIONAL BANK, Respondent, v. JAMES K. MOSSER and THOMAS KECK, Appellants.

      Liability of stockholder of a manufacturing company, while stock is not paid in full — Suit must first be brought against the company — excuse for not suing the. company — Election of remedies.

    In order to maintain an action against the stockholders of a corporation to recover a debt due from the latter, on the ground that the capital stock has not been paid in in full, an action must have been brought against the corporation within one year after the debt became due; and it is not a sufficient, compliance with this requirement of the statute to show, that within the year a petition in bankruptcy was filed by the plaintiff and others against the company, upon which it was adjudged a bankrupt, and in which proceedings plaintiff duly proved his claim.

      Semble, that the fact of the plaintiff acting as one of the petitioners in bank-^ ruptcy, evinced an election to pursue the remedy afforded by the Bankrupt Act, and to forego that given by the statute.
    Appeal from an order overruling a demurrer interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    This action was brought to recover of defendants, as stockholders in the American Shovel Company, the ¿míomit of certain loans made by plaintiff to said company, while- defendants; were -suoh-stockholders. The defendants are sought to be charged with this indebtedness, on the ground that the capital stock of said company has not been paid in. The claims in suit became due in September, 1876. In August, 1876, proceedings in involuntary bankruptcy were instituted against said company by the plaintiff and other creditors, and in January, 1877, said company was duly adjudicated a bankrupt under the United States Bankrupt Act. The plaintiff duly proved its claims in those proceedings, but no judgment has been obtained on said claims against said company. Defendants demurred to the complaint, on the ground it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendants appealed,

      Michael II Cardoza, for the appellants.

      JErastus Mew, for the respondent.
   Gilbert, J.:

The tenth section of the statute authorizing- the formation of corporations for manufacturing purposes (Laws of 1848, ch. 40),. makes the stockholders of each company severally individually liable to the creditors thereof to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by the company, until the whole amount of the capital stock of such company shall have been paid in, and a certificate thereof •shall have been made and recorded. Taking this section alone, there would be no question of the liability of the defendants. But the twenty-fourth section of the same statute provides that no stockholder shall be personally liable for the payment of any debt contracted-by any company formed under that act, unless a suit for the collection of such debt shall be brought against such -company within one year after the debt shall become due. And inasmuch- as the instituting of a suit only, would be productive of no benefit to the stockholder, it has been held, that a proper construction of this section requires that the suit should be consummated by a judgment and execution. (Lindsley v. Simonds, 2 Abb. [N. S.], 69.) However that may be, the statute unquestionably requires a suit to be .brought. , The language is too plain to admit of any dispute. Nor can tbe court refuse to give effect to the statute, because they can discover no sufficient reason for requiring a suit to be brought. It is a positive requirement, and must be enforced. Here no suit for the collection of the debt in question has been brought against the company. If an excuse might be allowed for a non-compliance with a condition precedent to the right of action, none has been shown. The proceeding in bankruptcy was not a suit within the .meaning of the statute ; nor was it one. for .the collection of the debt m any sense. Nor did such proceeding destroy the right of action against the company. (Ansonia B. & C. Co. v. New Lamp-Chimney Co., 53 N. Y., 123; S. C., 1 Otto, 650; Kincaid v. Dwinelle, 59 id., 548.) It did suspend such right of action, but the plaintiff was one of the petitioners in that proceeding, and cannot take advantage of its own act to defeat the operation of the statute. . Such act is rather evidence of an election to pursue the remedy afforded by the Bankrupt Act, and to forego those given by the State statute. Tt does not appear that an action against the company would have been fruitless, if the proceeding in bankruptcy had not been taken. But, however that may be, the statute makes the prosecution of such suit a condition precedent to the right of action against a stockholder. We have no power to dispense with such a condition, except upon grounds arising from the conduct of the defendants, or which can be imputed to them.

The order appealed from should be reversed and the demurrer sustained, with costs and disbursements.

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order overruling demurrer reversed and demurrer sustained, ivith leave to plaintiff to amend in twenty days, on payment of costs.


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    WILLIAM C. BUHRMAN, Respondent, v. DANIEL BAYLIS, Appellant.

      Promissory note — bona fide holder, for value — “warranty — breach of.

    One Kelly sold a horse to defendant for one hundred dollars, warranting it to be sound ; fifty dollars were paid in cash ; and fifty dollars in a note, which was -drawn by the plaintiff, who knew of the sale and warranty, which note was immediately afterwards transferred to him by Kelly, in payment of a'preexisting debt, defendant saying that it was all right. In’an action upon the note, defendant set up a breach of warranty.

      Held, 3, that as plaintiff was not a bona fide holder for value, the defendant was entitled to set up this defense, although he had not returned the horse. 2. That defendant was not estopped by his statement, as plaintiff had parted' with nothing of value in reliance upon it, and as he had knowledge of all the facts'.
    Appeal from a judgment, of the County Court of Kings county, affirming a judgment of a Justice’s .Court in favor of the plaintiff.
    • The action was brought upon a promissory note given by the defendant to one Kelly upon the purchase of a horse, and by him transferred to the plaintiff in payment of an existing debt. The horse was sold with warranty, the plaintiff being present and drawing the note. When the note was transferred by Kelly to plaintiff, defendant said, it is all right. The defense was a breach of warranty.

      W. J. Stanford, for the appellant.

      C. A. S. Van Nostrand, for the respondent.
   Gilbert, J.:

The fact that the home was not sound constituted a partial or total defense to the note, unless the plaintiff is-a bona fide holder thereof for value. (Payne v. Cutler, 13 Wend., 605.) It was not necessary that the defendant should- have rescinded the contract of sale in order to let in such defense. He was at. liberty either to rescind the contract, or to affirm it, and to claim damages for the false representations.

The evidence is, that the plaintiff took the note in payment of an old debt. That, according to the settled law in this State, is not sufficient to constitute the plaintiff a bona fide holder for value. (Coddington v. Bay, 20 Johns., 637; Weaver v. Barden, 49 N. Y., 293; Chesbrough v. Wright, 51 id., 662.)

The declaration which the defendant made to the plaintiff, at the time the note was transferred to the latter, did not create an estoppel in pais, for two reasons, viz : 1. It does not appear that the plaintiff was misled thereby to his injury. He neither paid, nor parted with anything on the faith of the defendant’s statement. 2. He knew that the note was given for a horse sold with a warranty of soundness, drew the note himself, and received it immediately after it was given, and before the defendant could have ascertained whether the horse was sound or not. Two essential elements of an estoppel, therefore, are wanting, namely, actual misleading and resulting injury. (Payne v. Burnham, 62 N. Y., 72; Cont. Bk. v. Bk. of the Commonwealth, 50 id., 575.)

The judgment must be reversed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment of County Court reversed, with costs.


text:
    THE CONVERSEVILLE COMPANY, Appellant, v. THE CHAMBERSBURG WOOLEN COMPANY, CYRUS W. HOLMES, Jr., JUSTICE J. ELLIS and others, Respondents, and JOHN L. HILL, Assignee, Etc., Appellant.

      Factor under del credere commission — general assignment by — rights of consignors— County Court —power of, to compel assignees to account, concun-ent with that of Suprmne Court.

    "Where goods are consigned to a firm to sell upon a del credere commission, and such firm makes a general assignment for the benefit of its creditors, the con-signora are respectively entitled to all the proceeds of the goods so consigned which come into the hands of the assignee.
    The power granted to the County Court to compel assignees to account, and to make distribution among creditors, is not exclusive, but is concurrent with that possessed by the Supreme Court.
    Appeal from an order of the Special Term, made in the accounting of defendant Hill, as general assignee of Thomas & Co.

      The question presented by the appeal related to the right' of consignors of goods to Thomas & Co. (to sell upon a del creciere commission), to the proceeds of the goods in the hands of the assignee.

      Sidney S. Harris, for the appellant.

      ■Asa A. Spear, for the respondents, Holmes and Ellis.
   Gilbert, J.:

The principle asserted by the order appealed from, as I understand it, is that the parties to this action, who consigned goods to Thomas & Co., to sell upon a del credere commission, are respectively entitled to the proceeds of the goods so consigned, which are in the hands of Mr. Hill, the assignee of Thomas & Co. That principle, I think, is unquestionably correct. Mr. Hill holds the fund in controversy as the assignee of Thomas & Co., by virtue of a general assignment, made by the latter for the benefit of their creditors. The fund is the result of collections, made by Mi'. Hill as such assignee, of debts due from the purchasers of the goods so consigned, and the portion of the moneys so collected, which was paid on account of the goods consigned to Thomas & Co. by. each consignor, can be readily and certainly ascertained. The parties who consigned the goods, respectively, are entitled to the proceeds of the sales of the same goods. Thomas & Co. were merely the factors of their principals — the consignors of the goods. The relation of principal and agent existed between them. For advances which were made by Thomas & Co. to the consignors, the former had a lien only; nor did the tact that, for an extra commission, they guaranteed the payment of the price for which the goods were sold, in any man- • ner alter the title to the goods or to the proceeds thereof.

The general property in the goods always remained in the consignors; and the proceeds of the sales thereof, so long as they-can be traced and identified, also belong to them. Unsold goods, and the proceeds of sales were, however, subject to the lien of the factor for advances and commissions. (See Hare & Wallace, Am. Lea. Ca., 802, where this subject is discusussed, and the. authorities are collated; Francklyn v. Sprague, 10 Hun, 589.) It is not necessary to discuss the question whether the fiduciary character of- an agent attached to Thomas & Co. I think it did. But the question here is, whether the goods mentioned were their property, or the property of the consignors. It seems to me to be too plain for argument, that a simple consignment of goods by a consignor to a factor for sale for the account of the consignor, upon a del credere, or any other kind of commission, cannot operate to divest the consignor of the title of his goods. On the contrary, while the goods are in the possession of the factor, he is the bailee of his principal, and the consignor may revoke the authority of the factor at any time, and reclaim the goods consigned to him which remain unsold, upon payment of the factor’s unpaid advances and commissions. The primary engagement and duty of the factor is to sell the goods and render an account.

The factor’s contract of guaranty is a cumulative security to his principal, and I cannot see that it works any other change in the legal relations between them.

Without pursuing the subject further, the position of the general creditors of Thomas & Co. on this point ought not to be sustained. The property in the proceeds follows that in the goods. The assignee stands in the shoes of his assignors, and certainly is entitled to no greater or different interest in such proceeds.

It is claimed, on behalf of the plaintiffs, that Thomas & Co., from time to time, unlawfully appropriated moneys which were-the proceeds of the plaintiffs’ goods, in making advances to other consignors of goods to Thomas & Co., and that the plaintiffs are entitled to have such moneys refunded out of moneys belonging to said other consignors in the hands of the assignee.

I do not perceive how that claim can be sustained. The plain-, tiffs may have an action for money had and received against the persons who received from Thomas & Co. moneys which belonged to them, but no facts have been stated which would warrant the court in declaring that a lien on the goods of such persons, or on the proceeds thereof, exists in favor of the plaintiffs. The plaintiffs must first establish their debts against such persons respectively, and then exhaust their legal remedies for the recovery of them. After that has been done, they may acquire such a lien. The power granted by statute to the County Court to order assignees to account and to make distribution'among creditors, is not exclusive, but concurrent only. If the Legislature were competent to take away any part of the general jurisdiction of the Supreme Court, they have not attempted to do so in this instance.

The order should be affirmed, without costs.

Dykman, J., concurred in the result.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, without costs.


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    MARY STUART ROE, Respondent, v. WILLIAM JAMES ROE, Appellant.

      Trial by referee — review of— no exception necessary to findings of fact — Action for limited divorce — condonation and bad conduct of plaintiff must be set up in answer.

    To enable a party to review the trial of his case by a court or referee, it is only necessary to except to the conclusions of law; facts are not the subject of an exception.
    If in an action brought by a wife for a limited divorce, on the ground of cruel ■ and inhuman treatment, the husband wishes to show that she has forfeited her right to such relief by her own ill-conduct, or that his offenses have been condoned, he must set up such defenses in his answer.
    Motion for a new trial after a judgment entered upon the report of a referee, decreeing that the plaintiff and defendant lie .separated from lied and board, and directing a reference to determine as to’ plaintiff’s allowance for support and maintenance.
    The action was brought for a limited divorce, on the ground of cruel and inhuman treatment.

      F. JST. Bangs, for the áppellant.

      JEJmotl, Burnett ¿6 Hammond, for the respondent.
   Gilbert, J.:

The point that the court erred in reserving the determination of the amendments to the plaintiff’s findings, was hardly worth taking. The findings actually made, no doubt, embody the decision of the judge, and the defendant had no right to have them amended at one time or another. If he desired additional findings, he should have presented requests for them, and have taken an exception to the refusal of any of such requests. (3 Wait’s Pr., 221, 222; People v. Alb. & Sus. R. Co., 57 Barb., 204, and note.) But the court is justified in refusing to find specific facts, unless they have been proved by uncontroverted testimony. That is not the case here. Upon a review of a trial by the court or a referee, the findings are not conclusive, but the whole evidence is open to examination by the appellate court. The appellant is at liberty to show that the findings are wholly unsupported by the evidence, or that they are against the weight of evidence, or that they are erroneous in any other respect. To enable him to do this, it is only necessary to except to the conclusions of law. Facts are not the subject of an exception. (3 Wait’s Pr., 223.) There is no difference, in this respect, lietween an ordinary appeal and a motion under section 1001 of the Code of Civil Procedure. In either case the question is, exclusive of exceptions taken during the trial, whether, upon the whole case, injustice has been done to the appellant. (3 Wait’s Pr., 422, 423; id., 400; Smith v. Ætna Life Ins. Co., 5 Lans., 545; S. C., 49 N. Y., 211; Finch v. Parker, id., 8; Godfrey v. Moser, 66 N. Y., 250; Forrest v. Forrest, 25 N. Y., 509.)

In the present instance, the whole case is before us upon the defendant’s exceptions to the conclusions of law of the court below. I have examined the evidence attentively, and I am constrained to say that I have failed to discover any ground on which the defendant might reasonably rest a hope of obtaining a more favorable result, if another trial should be had. Not only are the findings of fact supported by the evidence, but contrary findings would be plainly erroneous. The facts proved are stated with much particularity in the findings; hence it is not necessary to repeat the statement of them. They clearly entitle the plaintiff to the decree which has been made, unless it was the duty of the court below to find that the plaintiff had forfeited the right to such relief by her own ill-conduct, or by a condonation of the defendant’s ill usage of her. It was intimated, but not much insisted on, that the defendant’s mental condition may have been such as to render him irresponsible for the acts complained of. No such defense was set up in the answer, and the evidence on the subject is too weak to affect the rights of the plaintiff. Neither of the defences mentioned was set up in the defendant’s answer. The section of the Code of Civil Procedure (1001), which authorizes this proceeding, limits it to exceptions. No application to amend the answer is before us; nor can an appellate court amend pleadings, except for .the purpose of sustaining the judgment. (4 Wait. Pr., 668.) That it was incumbent on the defendant to plead such defenses, Ave think is reasonably clear. The general rule is, that affirmative defences must be pleaded; and I see no reason Avhy that rule should not govern suits for divorce or separation. In Smith v. Smith (4 Paige, 434), Ch. Walavorti-i laid down the rule, that “if the defendant wishes to prove a condonation of the offense, or to establish a recriminatory charge, in bar of the divorce, strictly, she should urge it by way of a special plea, or insist on it in her answer as a defence.” The suit, in that case, Avas brought by the husband against the wife. The same rule was subsequently recognized in Hopper v. Hopper (11 Paige, 46). The reasons for applying the rule when the suit is against the husband, are far more palpable than in cases where the wife is defendant. Those defenses respectively consist of “new matter,” within the meaning of section 500 of the Code of Civil Procedure, and that section requires that the answer shall contain astatement of such nerv matter. The allegation of the complaint respecting the good conduct of the Avife avsis not material to her cause of action, and, for that reason, wsus not a proper subject of a denial by answer (Id.); nor did the denial of it raise an issue. The object of the rule referred to is, to compel adverse parties to disclose to each other the facts upon which they respectively rely to maintain the cause of action and the defense. (Moak’s Van S. Pl. [3d ed.], 504, 505, 511.) With-respect to the defense of ill-conduct, the Revised Statutes (2d vol., 147, § 53), provide that, in a suit for a separation, the defendant “ may be permitted to prove, •in his justification, the ill-conduct of the complainant; and, on establishing such defense to the satisfaction of the court, the bill shall be dismissed. We think this provision was not enacted with an intention of altering a rule of pleading. If the language of it, however, admits of such a construction, it should be restrained within the provision of the Code, for the reason that the Code is a subsequent enactment, and applies to actions for a separation as well as other actions.

Perhaps, if the defenses mentioned had been established to our satisfaction, we might suggest a way whereby they might be rendered available to the defendant; but we are of opinion that the evidence failed to show any ill-conduct of the plaintiff, which afforded a justification of the defendant’s conduct towards her; and that, assuming that a condonation was proved, yet the defendant’s conduct towards his wife, after the condonation claimed, was such as to revive his previous misconduct, which, it is claimed, had been condoned.

The motion must, therefore, be denied, with costs.

Barnard. P. J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


text:
    GEORGE WADE, Appellant, v. SMITH T. BAKER, J. NELSON TAPPAN and SAMUEL R. PLATT, Respondents. SARAH A. VAN AMBURGH, Appellant, v. SAME, Respondents.

      Trustees of a corporation — when they cease to be such..

    This action was brought against defendants, alleged to be trustees of a manufacturing corporation, to charge them with a debt due from such corporation because of their failure to file the annual report required by the statute. The trustees were elected February 27, 1874, for one year. On January 15, 1875, the trustees passed a resolution that the corporation should cease to transact business, and resigned their offices to take effect February 25,1S75, the day on which their terms expired. No further elections were held, and the trustees never acted after February 25,1875. Held, that they then ceased, to-be trustees, and were not liable for a failure of- the corporation to file its annual report in January, 1876.

      Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The action was brought against the defendants as the trustees of the Mott Brick Company, to charge them with a debt due from the corporation, because of their failure to file the annual report required by the statute in 1876. The last election of trustees was held February 27, 1874.
    The defendants claimed that they ceased to be trustees in February, 1875, and that they were not liable for the subsequent failure of tne company to file the report.

      James W. Taylor, for the appellant.

      Hedfield & Hill, for the respondents.
   Gilbert, J.:

It was indispensable for the plaintiff to prove that the defendants were, in fact, trustees of the corporation in Jannary, 1876. That he failed to do. Their term of office expired on the 25th of February, 1875.- They did not “ hold over,” nor do any act after the last-mentioned day. On the contrary, it appears that on the 15th of January, 1875, the trustees of the corporation passed a resolution that the corporation should cease to transact business, and at the same time severally resigned their offices! Such resignation to take effect February 25, 1875. These acts constituted an unequivocal manifestation of their intention to relinquish the office of trustee, and to abstain from holding over. They owed no duty to private parties to continue the business of the corporation, or to preserve its corporate existence. Much less were they required to induce other persons to step into their places. The corporation had fallen into such a state that it became the duty of the trustees to discontinue its business and wind up its affairs. It is said that a presumption of their election to hold over, arises from their neglect to take the preliminary steps for an election in February, 1875. We have been referred to no authority for that proposition, and we cannot give it our assent. No doubt they had the power to hold over, or provide for an election of trustees to take their places., But neither the act of incorporation, nor the by-laws of the corporation, imposed on them the obligation of doing so. (Chandler v. Hoag, 2 Hun, 613; Sanborn v. Lefferts, 58 N. Y., 179.) It is enough, however, to exonerate them from liability that they were not trustees when the alleged default occurred. They cannot be made liable in this action for their refusal to continue in office, or for a failure to provide for an election of persons to succeed them as trustees. In short, they are not liable for a failure to make the annual report in January, 1876, because they were not then trustees of the corporation. It is not an answer to this to say that it waa their duty to continue in office, or to provide for an election of others to take their places. For the statute has imposed no penalty for such a violation of duty, and this action was not brought to recover such a penalty.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs in each case.


text:
    ALFRED DICKINSON and others, Executors of B. H JUDAH, Deceased, Plaintiffs, v. ALEXANDER W. DICKEY and others, Defendants.

      Sale of lands in Kings county, by referee instead, of sheriff— effect of chapter 439 0/1876.
    Where a judgment of foreclosure directs lands, situated in the county of Kings, to be sold by a referee, instead of by the sheriff (as required by chapter 439 of 1876), such direction is a mere irregularity, and a sale by the referee is valid, and passes a good title to the purchaser.
    Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.
    On the sixth day of February, 1877, judgment of foreclosure and sale was made and entered in this action. The plaintiffs and all of the defendants, except the defendant George P. Clark, con.sented to the appointment of Cl. M. Stevens as referee to sell the mortgaged premises. The said George P. Clark failed to appear in the action, was not represented by attorney, could not be found, and did not consent or object to such appointment. The sale of the mortgaged premises was made by said referee, and the plaintiffs became the purchasers. As such purchasers and owners, the plaintiffs afterwards agreed to sell said premises (being the same premises described in said decree), and the title was objected to by the party proposing to purchase, upon the ground that the said George P. Clark, a judgment-creditor, one of the defendants hereinbefore mentioned, had failed to consent to the appointment of the referee who made the sale, and that the sale should, therefore, have been paade by the sheriff as required by chapter 439 of 1876.,

      Dickinson S Goldschmidt, for the plaintiffs.

      Ilolfe & Bergen, for purchaser.
   Gilbert, J.:

The sale by the referee, instead of the sheriff, was in accordance with the judgment. At most, it was a mere irregularity in practice. The parties to the suit might waive it, and that is the test between an irregularity and a nullity. (Clapp v. Graves, 26 N. Y., 418.) The court had jurisdiction of the parties and of the subject-matter. The judgment, therefore, was valid, even if it was erroneous in directing the sale to be made by a referee. We are of opinion, therefore, that the objection to the title is not a good one.

Judgment accordingly, with costs to the plaintiff.

Presents-Barnard, P. J., Gilbert and Dykman, JJ.

Judgment for plaintiff upon submitted case.


author: Gilbert, J.: Dykman, J.,

text:
    THE STANDARD OIL COMPANY, Respondent, v. THE AMAZON INSURANCE COMPANY, Appellant.

      Policy of insurance — when, avoided by falsity of statement.

    One James Lord, in behalf of the plaintiff, applied to an agent of defendant for ■ apolieyof insurance, and stated at the time that the Triumpn Insurane Company had accepted a risk on the same property at a certain rate; a policy was issued by defendant at that rate. Joseph Lord was the agent of the plaintiff to attend to its insurance, and James was in his employ. At the time of the application the Triumph Insurance Company had in fact refused to accept the risk, which fact was known to Joseph Lord, but not to James.
    In an action upon the policy, the falsity of this statement was insisted upon as avoiding the policy. The judge charged that if- James Lord made the statement absolutely as a fact, the policy was void; but if he stated it merely as a matter of opinion, the policy was valid. Held, that this was correct. (Dykman, J., dissenting-.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    On the 23d of July, 1872, the defendant insured the plaintiff on its oil, etc., at Hunter’s Point, in the sum of $10,000, for one year, from the 20th July, 1872. A loss to the amount insured occurred on the 30th of July, 1872, between ten and eleven o’clock in the morning. Notice was given, and proof of loss duly made. ■ The principal defense insisted upon was, that the defendant issued the policy in suit upon a false representation, made by James Lord who Avas in the employ of Joseph Lord, plaintiff's agent, to the defendant, that the Triumph Insurance Company had approved a like risk, at the same rate of five per cent, and that the representation Avas relied upon as true, and induced the making of the policy. It appeared that an application for insurance had -been made to the Triumph Insurance Company and had been rejected. The fact of its rejection was knoAvn to Joseph Lord but not to James.

      Henry L. Burnett, for the appellant.

      Joshua M. Van Oott and James K. Hill, for. thé respondent.
   Gilbert, J.:

The jury, no doubt, were of opinion that the representation made by James Lord was an expression of opinion only, and not a positive statement of fact. The judge’s charge on that point was clear and explicit. The jury were plainly told that the case depended on the question, whether James Lord, the plaintiff's agent, stated absolutely as a fact- to Peck, the defendant’s agent, that the policy of the Triumph Company had been approved by that company. The defendant acquiesced in that instruction.

I agree with the defendant’s counsel, that if the statement made by Lord was a positive one, the defendant was entitled to the verdict. Notice to the agent is notice to the principal; and whether the notice be actual or constructive, the same kind of notice will be attributed to the principal, whether actually communicated or not. Such a case would be one where a principal had sent his agent to cheat. But I do not agree with him, that because Lord merely expressed an honest opinion that the Triumph policy had been approved, when, in point of fact, it had' not, and the plaintiffs knew that it had not, the latter are liable on the ground of fraud. For, in such a transaction, in the absence of evidence that the plaintiff permitted the representation to be made for a fraudulent purpose, the intent to deceive, which is an essential ingredient of fraud, is lacking. In other words, fraud cannot arise out of such a representation by an agent, when neither the' agent nor the principal had any intent to deceive; and when the statement consists of an expression of opinion merely, an inference of fraudulent intent is not warranted without other evidence thereof. If the statement which Lord made had been made directly by the plaintiffs, under circumstances showing the absence of any intent to deceive, fraud could not have been legally imputed to them. There being no fraud in such a transaction between an agent of the plaintiffs and the defendant, the plaintiffs may, of course, claim the benefits of it without incur-' ring any liability.

Such being my views of the law, it only remains to consider whether the statement made by Lord was a positive one or not. Upon that subject, X think the testimony of Mr.'Peck'alone, is sufficient to warrant a verdict that it was not. He testified that Mr. Lord “ said the policy had been submitted, as there had been abundance of time for submission of the policy; and that the policy had not been canceled; and, therefore, the Triumph Company had approved the policy.” That may be bad reasoning; but, if honestly uttered, it furnishes no sufficient basis for an imputation of fraud. Fraud could hardly be predicated of the-previous statement which Peck’s subordinate (Fox) testified that Lord made to him; for the statement to Peck himself, being the last one, may well be treated as having superseded that made to Fox. But, if otherwise, Lord’s testimony was in conflict with that of Fox, and it was the exclusive province of the jury to decide which of them was most worthy of belief.

The judgment and order denying a new trial should bo affirmed.

Dykman, J.,

(dissenting):

This action has been twice tried. On the first trial a verdict was directed for the plaintiff by the court. The judgment entered on that verdict was reversed by the court, and a new trial granted by reason of certain false representations which induced the acceptance of the risk at five per cent. The representations were these: At the time of the application for the insurance, the agent of the plaintiff- exhibited to the agent of the defendant a policy of insurance upon tho same property which had been issued by tho Triumph Insurance Company. The Triumph and the Amazon were under the same management, and insured at the same rates. Upon being asked if the Triumph policy had been approved by the company, the plaintiffs’ agent stated that it had. Thereupon the agent of the Amazon accepted the risk and issued the policy in suit.

Joseph Lord was the agent of the plaintiff to place its insurance, and James Lord was his brother and in his employ, and he applied for the policy in suit and made the representions just mentioned.

The Triumph policy, so exhibited, had been rejected by tho company, and Joseph Lord knew that fact. The law, therefore, imputed knowledge of it to James. When the case was here before, these facts were not disputed, and we held that the misrepresentations were sufficient to render the policy void from the first, and that the plaintiff could not recover. Now a new trial has been had, and the facts developed are the same in substance as at the first trial, except that on the last trial James Lord testified, that when he presented the Triumph policy, and was asked if it had been approved by the company, he said he believed it had. When cross-examined, he said, I think I used the word believe; I may be mistaken in that.

The fact that he made a positive representation, that the Triumph policy had been approved by the company, was testified to by the agent of the defendant and his clerk, and on the first trial he did not undertake to make any contradiction of this statement, which was the same on both trials, but merely stated that he could not undertake to say what his language was.

Now, this is the point upon which the case turns, and the jury was so instructed. If James Lord made the representation as it is claimed he did, then, as there can be no question of its materiality, and .of its falsity, and that it was believed by the agent and relied on by him, it follows that it rendered void the policy, and the plaintiff cannot recover in the action.

We have the right to examine the whole case upon the facts as well as the law, and if we reach a different conclusion from that of the jury, to inverse the judgment entered upon the verdict. (Macy v. Wheeler, 30 N. Y., 231.)

If this verdict stands, it must be upon the altered testimony of James Lord. In reply to the question whether the Triumph policy had been approved by the company, he said he believed it had ; and then on cross-examination, he said he thought he used the word believe, but might be mistaken about it. This is very unsatisfactory, in itself considered. On the first trial he makes no statement, and ■ after a new trial is .granted by reason of his misrepresentation, he can only say he does not think his misrepresentation was positive, but only an expression of his belief, and in relation to that he may be mistaken.

A jury must need much credulity to found a verdict on this alone; but when there is opposed to this statement not only the strong probabilities arising from all the facts which cluster around the transaction, but the positive testimony of two witnesses, whose testimony has been m no way weakened, but has been consistent on both trials, and is consistent with the other facts, we think it so far overwhelmed as to be entirely unreliable.

Courts entertain great respect for the findings of juries rendered upon questions of fact, where there is a conflict of testimony, and at all times interfere with their verdicts with great reluctance; but when, as in this case, a verdict is found upon testimony which is entirely unsatisfactory, and against testimony which commends itself to the judgment, and is strong, positive and consistent, they must be scrutinized carefully in the interest of truth and justice. It is not enough that the court would have reached a different result from that arrived at by the jury, but it must be plain that the verdict is against the evidence.

Now, in this case, that the verdict is against the evidence. There is nothing to sustain it but the testimony of James Lord, and that is not sufficient. It is at war with the probabilities of the case, and with the testimony of two witnesses.

Among other things, the trial judge charged the jury as follows: “ On the other hand, if you find that he (James Lord) did not make a statement which was false, that it was a mere matter of opinion, and that it was not material and was not relied upon, and that it did not induce them to enter into this contract, then you must find for the plaintiff for the sum of $13,744.42.” It must now be assumed that the jury found these facts.

The judge further charged as follows: “If you shall find, as claimed by the defense, that Mr. Lord made a statement which was in fact false, that it was material to the negotiation, that it was believed by Mr. Peck, and relied on by him, and that it induced him to enter into the contract, then you must find a verdict for the defendant.”

Every one of the propositions here enumerated stood proven at the close of the case, and the jury was bound by the evidence to find a verdict for the defendant, in accordance with this portion of the charge. There was no contradiction of any of these propositions except the first, and upon that one the contradictory testimony, as we have seen, was not entitled to much respect.

The verdict ought not to stand, and a new trial should be granted, with costs to abide the event.

Present — Barnard. P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed with costs.


author: Barnard, P. J.,

text:
    JOHN MISLAND and CHANDLER HALL, Respondents, v. EBEN M. BOYNTON, Appellant.

      Examination before trial — when further oral examination allowed on the trial.

    Appeal from a judgment in favor of the plaintiffs, entered upon 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.
    The principal question involved in the appeal was one of fact. In the course of the opinion, the court said, with reference to an examination of the plaintiff before trial had on the application of the defendant:
    “The plaintiff, Hall, was examined before trial; upon the trial his deposition was read without objection. In reply to defendant’s evidence, he Avas examined orally ; exception was taken to his oral examination. The ruling was right. The examination before trial was simply of the same effect as if taken orally. It was in the discretion of the court to permit the further examination of the Avitness orally before the jury.”

      Erastus New, for the appellant. Joseph A. Welch, for the respondents.
   Opinion by

Barnard, P. J.,

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment and order denying new trial, affirmed Avith costs.


author: Dykman, J.

text:
    JOHN PIERSON, Respondent, v. ERNST H. WERHAN, Appellant.

      Personal property — delivery of, need not be to vendee — delivery to third person, by vendee's direction, good.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    This was an action for the recovery of a balance on an account for milk sold and delivered. On the trial of the cause at the Circuit, the plaintiff introduced testimony tending to show that the milk was sold to the defendant, and consigned, by his direction, to a man named Hull. This was denied by the defendant, and his testimony and that of his witnesses tended to show that the milk was sold to Hull, and the contract of the defendant was one of suretyship only; and then it ivas claimed that the agreement of the defendant was to answer for the debt of Hull, and so void, under the statute of fraud- — -the same not being in writing.
    In the submission of the case to the jury, the trial judge, in his charge, submitted these two theories, in the following language: “ When a person buys property, buys it for himself, and directs its delivery to a third party, he is responsible just the same as if he had it delivered to himself. Thus, if Werhan bought the property for Hull, and ordered it to be delivered to Hull, but bought it upon his own credit and responsibility, he is a principal contractor, and Hull is not in the case at all; and Werhan is liable to pay, though Hull had the property by his direction, and though Hull had never paid anybody a cent.”
    “This presents to you the main question of fact in the case: Did Werhan buy this property for himself? If the contract was, that Blauvelt said, I will sell you (Hull) the milk, and that Werhan said, I will guarantee to be security that Hull pays, it is void, and you must find a verdict for the defendant. But if the milk agent, who had this business in charge, told Hull, I won’t trust you; you must get somebody to be your security; if, thereupon, Hull introduced him to Werhan; if Werhan then, after trying to persuade him to sell Hull on credit, and, being refused, said that he would buy the milk; you deliver the milk to Hull; then Werhan is liable, and your verdict must be for the plaintiff.”
    The court, at General Term, said: “The verdict was for the plaintiff, and we must assume, under this charge, the jury found the defendant purchased the milk, and ordered it delivered to .Hull.. Thus, then, we have the ordinary case of personal property, and a delivery under the contract. The only thing out of the usual order of business being that the property was not delivered to the purchaser. This is not material. It is not an essential requisite to the liability of a purchaser of personal property that the subject of the contract shall be delivered to him.
    “It may be delivered to any one ho directs, and yet his liability be preserved.”

      Henry A. Meyenborg, for the appellant. Á. Buckingham, for the respondent.
   Opinion by

Dykman, J.

Gilbert, J., concurred ; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.

text:
    WILLIAM R. HAVILAND, Appellant, v. HENRY M. HAVILAND, DAVID L. VAN NOSTRAND and ALBERT VAN NOSTRAND, Respondents.

      Indorsement of note by third person befoi'e delivery— effect of.

    Appeal from a judgment in favor of the defendant, Albert Van Nostrand, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before rvhom the action was tried.
    The action was brought upon a promissory note, drawn by the defendants Haviland to the order of the plaintiff, and in pursuance of a prior agreement, indorsed by defendant, Albert Van Nostrand, prior to its delivery to plaintiff.
    The court, at General Term, said: “ After some confusion, il was finally held by the Court of Appeals, that a person who, for the accommodation of the maker, indorses his note to the order of a third person, is liable to such third person as indorser. (Moore v. Cross, 19 N. Y., 227.)
    In a recent case, the Supremo Court of the United States have decided that the person so making such indorsement is not liable as indorsor, but is as joint maker. We feel bound to follow the rules laid down by the Court of Appeals. The only remaining question arising upon this appeal is one of fact.”

      Wm. II Onderdonk, for the appellant. Downing <& Stanbrough, for the respondent, Albert Van Nostrand.
   Opinion by

Barnard, P. J.

Gilbert, J., concurred; Dykman, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    JOSEPH DORON, Respondent, v. JOHN McLOUGHLIN, Appellant.

      Judgment in Justice's Court — appeal to County Court —notice of — when respondent must make offer to correct the judgment — costs.

    This action originated in a court of a justice of the peace. The plaintiff recovered a judgment in that court for $145.92. The plaintiff’s claim was for work done, and the defendant by his answer denied any liability for work done, and set up an offset thereto. The defendant appealed to the County Court, and in his notice of appeal sot forth, among other grounds of error, the following:
    3. That the justice erred in rendering judgment against the defendant in favor of the plaintiff for $145.92.
    4. That the justice erred in rendering judgment against the defendant for any sum whatever.
    That the justice erred in not rendering judgment against the plaintiff, and in favor of the defendant for forty dollars. There was no offer to correct the judgment, and upon the new trial in the County Court, the verdict of the jury was in favor of plaintiff for $59.10.

      The court, at General Term, said: “The notice of appeal in these cases seems to come fairly within the principle determined in the cases of Younghanse v. Fingar (47 N. Y. R., 99); and in Bigsby v. Warden (62 N. Y., 27). In both of those cases the notices of appeal alleged only that the judgment should not have exceeded a certain sum.
    “ In this case the notice asserts that the whole judgment was wrong ; that it should have been in favor of defendant fox forty dollars. I cannot distinguish this case from the case above cited. In those cases one notice stated that the judgment should not have been for more than ten dollars. In the other not more than twenty-five dollars.
    “ In this it is all Avrong. It should have been for the defendant forty dollars. In all the cases the allegation is plain. The judgment is for too much. It should have been for the defendant. It should have been for the defendant against the plaintiff for forty dollars. There having been no offer, and the judgment having been reduced over ten dollars, the appellant Avas entitled to costs.”
   Opinion by

Barnard, P. J.

Gilbert and Dykman, JJ., concurred.

Motion denied, with $10 costs.


author: Martin, J.:

text:
    LEVI M. WINCHELL, Respondent, v. JAMES DOTY, Appellant.

      Guaranty — when of payment, and when of collection.

    Defendant, on purchasing a horse from plaintiff, offered in part jiayment a note made by C. and H„ then four years over.due ; plaintiff refused to receive it, until defendant finally wrote upon the back of it: “I guarantee the within note,” and signed it.

      Held, that this was a guaranty of payment, and not merely that the note was collectable.

      Semble, that, under the circumstances and the form of the guaranty, no demand upon the makers was necessary before bringing suit against the defendant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was commenced against the defendant on the 12th day of April, 1877, to recover the sum due on the following promissory note:
    KInt. Rev. Stamp. “Newark, -April 5, 1872.
    “ Six months after date, for value received, we, or either of us, promise to pay John Van Burén, or bearer, one hundred dollars,, with use. “FRANKLIN CARTRIGHT. .
    “SILAS HOOVER.”

      Prior to the 14th day of September, 1876, the defendant became the owner and holder of said note, and on the 14th day of September, 1876, the defendant purchased a horse of the plaintiff, and offered the note in part payment, which the plaintiff refused, upon the ground that he did not know the makers, but offered to take the defendant’s individual note; at which time the defendant agreed to guarantee the note, and wrote the following on the back of its
    “ I guarantee the within note.” “ James Doty.”
    The note was then received by plaintiff at its full value and interest, defendant saying: “You must not trouble me till the 1st of April; the note is already due.” The plaintiff agreeing to this request.
    The only question raised by the defendant was that the guaranty was one of collection, and not of payment, and the plaintiff should have exhausted his remedy against the makers before looking to defendant.

      Smith Brothers, for the appellant.

      Jay B. Kline, for the respondent.
   Martin, J.:

The' first and most important question to be determined in this case, arises upon the construction of the guaranty signed by the defendant, and is, whether it was in effect a guaranty of payment, or only a guaranty of collection. It was general, unlimited and unextended. It being a guaranty without limitation or extension, the contract must, I think, be held to import just what the term “guaranty” itself imports. A guaranty is an undertaking to answer for another’s liability, and collateral thereto, and, in its commercial and legal sense, is an undertaking by one person to be answerable for the payment of a debt or the due performance of a contract or duty by another, who himself remains liable to pay or perform the same, and may be of a prior debt, contract or duty, or of a future one. (Story on Promissory Notes, § 457, and cases cited.)

The liability of a guarantor will be considered as co-extensive with that of his principal, unless it be expressly limited; and, when a guarantor or surety becomes bouncí.in general and indefinite terms, he makes himself liable for all the engagements of his principal resulting from the principal’s contract. (Story on Contracts, § 866; 2 Bouv. Inst., 58, and cases cited.)

The contract of the defendant’s principals was one of payment, and was that they would pay the sum secured by this note; and, as the defendant undertook to answer for their liability upon that contract without limitation, his contract, although collateral, became co-extensive with that of his principal, and he too became liable to pay this note, if his principal failed to do so. . This contract of his, constituted a guaranty of payment, and not a guaranty of collection, as contended by the counsel for the appellant. (See Schultz v. Crane 6 Hun, 236; aff’d 64 N. Y., 659.)

Not only is this the construction to be applied to the written contract between the parties, but such was clearly thejr intention, as. shown by the evidence upon the trial. This note was delivered, to the plaintiff in part payment of the purchase-price of a horse then purchased by the defendant, and for which he sought to to have the plaintiff take this note in part payment, without guaranty; but this he refused to do, as he did not know the parties, offering, however, to take the defendant’s note, or this note guaranteed by him, and defendant finally agreed to, and made this guaranty upon the plaintiff’s promise that he would not trouble him till April, 1877, he at the same time informing the plaintiff, in substance, that he could not enforce the collection of the note against the makers of it, but assuring him that the makers would pay it as they had agreed to. From this evidence, the referee was clearly right in holding that this was intended as a guaranty of the payment of this note.

It is, however, insisted by appellant’s counsel that, even though this was a guaranty of payment, still the note being over due when the guaranty was made, the contract of the defendant was that he would pay only after a demand upon the makers of the note; that the note should be regarded as a note payable upon demand. While this may be the legal rule, between, an indorser and an indorsee (Van Hoesen v. Van Alstyne, 3 Wend., 75), yet I think no such rule applies as between a guarantor and guarantee. An absolute guaranty of payment renders the guarantors liable, upon default of the principal, without any proóf of demand or notice. (Allen v. Rightmere, 20 Johns., 365; Union Bank v. Coster’s Executors, 3 N. Y., 203, and cases cited.)

But, if this were not so, and a demand of the makers of this note was necessary, still a sufficient answer to this-point is, that the evidence in the case does not sustain it.' The evidence in the case certainly tends to show, and I'think shows'quite clearly, that such a demand was made. The plaintiff testifies1:’ “ T called upon the’' makers of the note; I called upon Cartriglit repeatedly after this, and-he promised to pay it'-and did not.” From'this evidence, the- referee' would certainly have been justified in finding that a demand was made of both' of the makers of this note before this action was brought; and, if necessary to sustain this judgment, it will be assumed that he so found. (Chubbuck v. Vernam, 42 N. Y., 432; Tomlinson v. The Mayor, 44 id., 601.)

There are no'other questions in the case requiring consideration, and I am of the opinion that the learned referee was correct in finding that the contract between the parties was a guaranty of payment; and in holding that the plaintiff was entitled to the judgment rendered herein.

The judgment should, therefore, be affirmed.

■Present- — -Learned, P. J., Boardman and Martin, JJ.

-Judgment affirmed, with costs.


text:
    LA FAYETTE L. TREMAN and others, Appellants, v. JULIA A. ALLEN, Respondent.

      Married, woman — when estopped from denying authority of her. agent.

    When a married woman, owning a saw-mill and carrying on business therein, through her husband as her agent, clothes him with apparent authority to purchase materials to repair the mill, she is estopped from disputing his authority to purchase such materials,' so far as others have been induced to act upon the faith of it, although he has disregarded her instructions to purchase them of a particular person designated by her.

      Appeal from a judgment- in favor of the defendant, entered upon a nonsuit directed at the Circuit, and from an- order denying a motion to set aside the nonsuit and grant a new trial, made upon a case and exceptions.

      Jay B. Kline, for the appellants.

      Merritt King, -for the respondent.
   Martin, J.:

I am unable to concur in the ruling of the learned judge at the Circuit, that there Avas not sufficient evidence in the case to go to . the jury upon the question of the defendant’s liability.

The plaintiffs alleged that they sold and delivered to this defendant, through her husband and agent, certain materials which • Avere used by her in repairing a saAv-mill, owned, occupied and • operated by her. This she denied, and alleged that the materials claimed for, were sold to one Mott, Avhom her husband had employed -to repair the mill, and who used them in making such repairs.

On the trial, the plaintiffs proved that these materials were pui’- . chased by the defendant’s husband as her agent, and that they Avere charged to the defendant; • that she aauis the OAvner of the mill repaired, and the realty upon which it stood; that she carried on the business connected with this mill, her husband working for her as her agent, in the management of the mill business, run,ning the mill, taking in sawing, charging it upon the books and settling Avith the customers; that the mill needed repairs, and the defendant, desiring to have it done, told her husband that she wanted it repaired, and that he might go on and repair it, “ under consideration ” that one Mott Avas to furnish these materials; that the plaintiffs furnished the materials, for the price of Avhich this action was brought, upon the order of the defendant’s husband, who superintended the repairs for the defendant, and Avho stated to the plaintiffs, when the order Avas given, that she owned the mill, and would pay this claim; that she knew the materials were furnished and used in repairing her mill, and that the value of her property was thereby increased; that her husband hired and she paid for the labor employed and performed in making such repairs; and that after these materials were furnished; one of the plaintiffs saw her, and asked her to settle this account, when she told him the account was all right, and when asked how she wanted to pay it, said that she wanted 'Mr. Allen tó earn it out of the mill; and refused to give her note, saying there was some more old iron in the mill she would turn but, and that her husband would pay the balance, but she wanted him to pay it out of the mill. .........

There was, thei’efore, evidence in the case showing that the defendant’s husband purchased this property, as the ¿gent of the defendant; to be Used in the improvement of ‘her separate property, and that it was thus used with her' knowledge and consent; so that, if the defendant’s' husband had authority to make this contract as her agent, then she was clearly liable,' for the property was both purchased and used lor the' benefit and improvement of her separate estate and business. (Owen v. Cawley, 36 N. Y., 600; Ballin v. Dillaye, 37 id., 35; Manhattan B. & M. Co. v. Thompson, 58 id., 80.)

The question then to be determined is not, whether the defendant, as the wife of John P. Allen, was liable upon a contract made by him in his own name for materials which were furnished to him and employed in improving lior property (as seeiris to have been supposed); but is, whether there was sufficient evidence in the case to entitle the plaintiffs to go to the jury upon the question of the authority of the defendant’s husband to bind her as her agent in making this contract. '" ......... ’

If the plaintiffs proved facts and circumstances, from which the jury would have been authorized to find'tliat the'defendant had conferred upon her husband either' real or apparent authority to make this contract, then the court erred in not submitting this question to the jury, and in nonsuiting the plaintiffs; for, since the statutes of 1860 and 1862, married women owe'the same duty tó those with whom they deal, and may be bound iff the same manner, so far as relates to their separate testate or business, as if unmarried; the removal of their disabilities' imposed upon them corresponding liabilities, and if the defendant clothed her husband with apparent authority to act for her in the purchase of these materials, she was bound by his acts, and is estopped from disputing his authority, so far as. others have been induced to act upon tiie faith of it. (Bodine v. Killeen, 53 N. Y., 93.)

The defendant authorized her husband to repair this mill, and he superintended its repairs by her direction, made this purchase as her agent, used the materials .thus purchased in repairing the defendant’s mill, witli her knowledge; and after they were made, she said the account yras all right. From these facts, and other facts and circumstances proved on the trial, it seems to me that a jury would have been authorized to find that the defendant had clothed her husband and agent with, at least, apparent, if not real, authority to make this purchase upon her credit.

This purchase was within the scope of his employment to repair this mill, and to superintend such repairs. He was by her constituted her general agent for that purpose or employment; or at least, the evidence was sufficient to present a question of fact for the jury upon that issue. And although the defendant may have instructed her agent to purchase these materials of Mott, yet, having conferred upon her husband the general authority, to make and superintend the repairs, she must suffer the loss, if any, ¿rising from his disregard of her instructions, upon the ground that of two -innocent persons, he shall suffer who has put it in the power of another to do an injury.

The case of Fowler v. Seaman (40 N. Y., 592) is, I think, an authority adverse to the ruling of the court below. In that case, a married woman was the owner of a leasehold interest in a city lot. Her husband made a contract in his own name for the erection of a building thereon. The price was paid from moneys raised from incumbrances placed upon the property by her, and before the completion of the building she leased the property, covenanting to complete it. In an action by the contractor to recover from her the price of extra work done upon the building, by the direction of her husband, it was held, that these circumstances were sufficient to authorize the jury to find that he directed such extra work as her authorized agent, and hi her behalf, and that she was liable. The evidence in the case at ba,r was very much stronger than in that. (See, also, Fairbanks v. Mothersell 41 How., 274; Garretson v. Seaman, 54 N. Y., 852; Smith v. Kennedy, 13 Hun, 9 ; Foster v. Persch, 68 N. Y., 400.) The authorities cited by the counsel for the respondent do not reach the question in this case. In Ainsley v. Mead (3 Lans., 116), the court held, that proof that the husband of defendant had negotiated for the purchase and sale of a piece of real property for her, ivas not sufficient evidence of his agency to make the wife liable upon a contract made by him in his own name to erect buildings .upon her property, which he at the time claimed to own. And .in James v. Walker (63 N. Y., 612), and Nash v. Mitchell (3 Abb. [N. C.], 171), the court' held'that where a com tract was made with the husband, an agency for the wife must be shown before she could be held liable.

I am, therefore, clearly of the opinion that there'was sufficient evidence in this case to entitle the plaintiff to go to the jury ; aiid that the court below erred in granting the defendant’s motion for a nonsuit.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

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


author: Boardman, J.:

text:
    In the matter of the application of the PEOPLE OF THE STATE OF NEW YORK v. THE WIDOWS’ AND ORPHANS’ BENEFIT LIFE INSURANCE COMPANY.

      Policy of life insv/mnee — privilege to surrender and receive paid-up policy — must be claimed during life of policy.

    A policy of insurance was issued to the petitioner on the life of her husband, providing' that, in case of a failure to pay the premiums, the company should not be liable for the payment of the sum assured, or any part thereof, and ■. that the policy should cease and determine. It also provided that, upon the surrender of the policy duly receipted, the said company would issue a paid-up policy on the life of the assured, which after payment of premiums for two year’s should exceed $200, and for every year thereafter should exceed $100.

      The policy was issued July 3d, 186S, and the premiums were paid up to January 3d, 1870. In March, 1877, the company was dissolved and a receiver appointed. Subsequently the petitioner applied to surrender the policy and receive a paid-up one. Held, that the application was properly denied ; that the surrender should have been made during- the existence of the policy.
    Appeal from an order denying a motion to allow the petitioner, Justino Schmitt, to surrender, a policy issued to her, and receive , a paid-up policy therefor.
    The policy contained, among mothers, the following provisions:
    “ And the said company do further agree that, upon the surrender of this policy, duly receipted and without previous change in the mode of paying. premiums,...the said company will issue a . paid-up policy on the life of the said person whoso life is hereby , insured, payable as herein provided for an equitable sum, which .after payments for two years shall exceed two hundred dollars, , and for every year thereafter shall exceed one hundred dollars. * *
    “ The said premiums shall be paid on or before the days above mentioned for the payment thereof, at the office of the company ,in the city of New York, unless otherwise expressly agreed in writing, or to agents when they produce receipts signed by the president or secretary; and, in default thereof, then, in every .such case, the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”

      Barnes & Hanover, for the petitioner.

      B. W. Beckham, for IT. R. Pierson, receiver.
   Boardman, J.:

The petitioner’s policy was issued to the petitioner upon this express condition and agreement: “The said premiums shall be paid on or before the days above mentioned for the payment thereof; * * * and, in default thereof, then, and in every - such case, the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”

By the policy, the premiums were to be paid in semi-annual payments of $58.16, “ on or before the third days of January and July in each year during the continuance of the policy, until she shall have paid twenty full years’ premiums,” and the policy is dated July 3d, 1868. The premiums were regularly paid until January 3, 1870, and since that date no premiums have been paid nor other action had. In March, 1877, the corporation was-dissolved and a receiver appointed. The petitioner now claims a paid-up policy upon a surrender of the old policy, or that she should be allowed to participate in the assets of the defunct corporation.

The policy lapsed by virtue of the conditions tnerein contained, by neglect for over seven years to pay the premium. If the petitioner could demand a paid-up policy after a neglect to pay her premium when duo, it could only be within a reasonable time thereafter. Certainly seven years is far too long to come within so indulgent a rule as that suggested. When it is added that the corporation was dissolved before any surrender of the policy, and that a receiver had been appointed, the application comes too late.

But we arc inclined to think no paid-up policy could legally be demanded after a forfeiture of the petitioner’s policy by nonpayment of premiums. When the policy was forfeited for any reason, it ceased to exist as a valid contract upon which this or any other application could bo based.

The order is clearly right, and must be affirmed, with $10 costs and disbursements, to be paid by appellants to the receiver.

Learned, P. J., and Tapean, J., concurred.

Order affirmed, with $10 costs and printing, to be paid by appellants to receiver.


author: . Boardman, J.:

text:
    KATE T. BARTO, as Administratrix, Etc., Plaintiff, v. THE TOMPKINS COUNTY NATIONAL BANK, Defendant.

      Recording acts — sale by surrogate for payment of debts — title acquired by purchaser hds priority over unrecorded deed.' 'r

    In 1855, N. Halsey executed a deed of conveyance of a lot to Warren Halsey, the deed being left with a third person, to be delivered on payment of the price; the price was paid arid the deed delivered in Januai-y, 1865, and the deed was' recorded May 3, 1876. September, 1873, a judgment was docketed against Warren, under which an execution was issued in September, 1876, and the lot sold in December, 1876, a deed being delivered in April, 1878. In November, 1875, the lot was sold under proceedings had in the Surrogate’s Court for the sale of the real estate of N. Halsey, dfecased, to pay debts; Warren Halsey, who was one of' the executors, joining with the others in the petition. Defendant, who held a note against the estate of N. Halsey for §30,000, purchased the lot at the surrogate’s sale, and paid the whole - purchase-price into the Surrogate’s Court, receiving a deed which was recorded in November, 1875. ’ Held, that under the recording act, the title acquired by the defendant was superior to that acquired by the purchaser at the sheriff’s sale.
    Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.
    The question submitted was whether the plaintiff or the defendant had the better title to a farm, in the town of Ulysses, Tompkins county.

      F. M. Finch, for the plaintiff.
    The defendant was not a bona fide purchaser under the recording acts, because the purchase was merely applied upon a precedent debt, and no new or valuable consideration was parted with on the faith of the title. (Dickinson v. Tillinghast, 4 Paige, 215; Coddington v. Bag, 20. John., 63.7; Wsstervelt v. Naff, 2 Sandf. Ch., 98; Schutt v. Large, 6 Barb., 373; Wright v. Douglass, 10 id., 98; Woodburn v. Chamberlain, 17 id., 446; Arnold v. Patrick, 6 Paige, 310; fif&rritt v. Northern'll. B., 3 2 Barb., 605; Picketts. Barron, 29 id., 505; Gary v. White, 52 N. Y., 138; DeLancy v. Stearns, 66 id., 157; Weaver v. Barden, 49 id., 291; Schaffer v. Beitly,
      50 id., 66; Sheldon v. Edwards, 35 id., 285; Reeves v. Kimball, 40 id., 311; Bash v. Baihrop, 22 id., 535.) ■

      Win. N. Noble, for the defendant.
   . Boardman, J.:

In 1855, one. Nicoll Halsey owned the lands in controversy. He then executed a deed of such lands to one Warren Halsey, and delivered the deed to a third party, to be delivered to said Warren upon payment in full of the purchase-price. _ In January, 1865, the .deed was delivered to said Warren, .the purchase-price having ■been fully'paid. ■ This deed was not put' upon record' until May '3d, 1876. The plaintiff claims title under a sheriff’s,deed, given . on a sale under a judgment recovered against-said Warren Halsey, i in September, 1873,-upon which an execution was issued in September, 1876, and a sale nuide thereunder in December, 1876. There having been no redemption, the sheriff’s deed was executed ¡ and delivered to the plaintiff (who is-the representative of the '•plaintiff in the judgment) in‘April, 1878: The defendant claims title by virtue of a conveyance, executed, delivered and recorded about November 1, 1875, under proceedings had in the Surrogate’s ' Court for the sale of the real estate of which Nicoll Halsey died seized, for the payment of his debts. Warren Halsey was in possession of the premises when defendant purchased. Warren Hal- ’ sey was one of the executors of Nicoll Halsey’s will, and as such united with the other executor in the petition for the sale of the real estate of Nicoll Halsey for t]ie payment of his debts, in which it was alleged that Nicoll Halsey died seized of said premises. The petition was verified by Warren Halsey. The same statement was made by Warren Halsey to the defendant, which relied thereon during all the proceedings had.- The defendants held claims to the amount of $25,000 against Warren Halsey, William Halsey, Henry Halsey and Robert Halsey, four sons of Nicoll, who severally took shares in his estate under his will. All of these except Robert were insolvent in 1874, and Robert has since become insolvent. Robert, at the time of Nicoll’s death, held his note for $30,000, which was turned out to defendant as collateral security for the aforesaid debt of $25,000. It was by virtue of this $30,000 collateral note that proceedings were instituted to sell the real estate of Nicoll Halsey in Surrogate’s Court. Other facts will appear in the statement made upon the submission.

The title of the plaintiff as against the defendant is void under the recording act. (1 E. S., 756, § 1.) Defendant’s deed was first recorded. The real estate described in the two deeds was the same. The defendant was a purchaser in good faith aud for a valuable consideration. Upon the sale, under the order of the Surrogate’s Court, the defendant was the purchaser, and paid into the Surrogate’s Court the whole purchase-price. This ivas done to protect its own interest, and to secure its debt against Nicoll Halsey’s estate. But the purchase-money yas not directly applied upon the debt. The bank absolutely parted with its money. It could not reclaim it, or any portion of it, to apply on its debt, except after further proceedings and a determination or judgment of the Surrogate’s Court. What amount could be recovered was uncertain. It depended upon the sum of debts which might be established against the estate of Nicoll Halsey. It was not such an application of tlie purchase-price upon a precedent debt as would imq>each the defendant’s character as a purchaser for a valuable consideration. The debt due defendant was not reduced by any payment until some time after it had bought and paid for the premises, taken its deed, and had -it recorded. The subsequent áction of the court recognized defendant as still a creditor, and as such it was entitled to a distributive share of the purchase-money it had paid. The case under consideration is very much stronger for the defendant than that of Wood v. Chapin (13 N. Y., 509), where it was held that a purchaser under an execution is a purchaser for a valuable consideration, if he pays in cash the expenses of the proceedings, though the remainder of the purchase-price is directly applied to a precedent debt. That case has been very keenly criticised by the plaintiff’s counsel, but it is recognized, and the principle reiterated in Wood v. Morehouse (45 N. Y., 368). Judge Allen, it is true, in the late case of Weaver v. Barden (49 N. Y., 265), expresses the opinion that the purchaser is a purchaser for a valuable consideration only to the extent of the new' value parted with by him, and to that extent he would be entitled to a lien on the property bought. But this view does not appear to have been concurred in by the court. Judge Grover expressly dissented, and the other judges concurred only in tile result of Judge Allen’s opinion.

It is further argued that the recording act. cannot apply, since prior to the time of the surrogate’s sale Nicoll Halsey had divested himself of all title to the property, and hence the surrogate’s sale had nothing to act upon, and could convey no title. But it is held that a sale under legal proceedings will have the same effect, in this respect, that a second deed from Nieoll Halsey would have had if first recorded. (Jackson v. Chamberlain, 8 Wend., 620; Hetzell v. Barber, 6 Hun, 534, as modified by the Court of Appeals, 5 Weekly Dig., 141.)

We conclude, therefore, that the plaintiff’s deed is void as against the defendant under the recording act.

Judgment must, therefore, be ordered for the defendant, with costs.

Learned, P. J., and Tappan, J., concurred.

Judgment oi’dered for defendant on submission, with costs