text:
    Kittie M. Perkins, Resp’t, v. George Hall and others, Appl’ts.

      (Court of Appeals,

      Filed May 10, 1887.)

    1. Subrogation—Right to resting on usurious agreement.
    Whenever an equitable right to subrogation cannot be made out without resorting to some agreement or security which is void for usury, no such equity exists
    2. Same.
    Payn Bigelow agreed to pay off certain mortgages on real estate belonging to Hall, the latter agreeing to secure him by a mortgage for the amount advanced and $150 bonus. In pursuance of the agreement a mortgage for $3,000 was executed, providing that Bigelow was to assume and pay the liens first named. He paid a portion of them and they were discharged of record, and afterwards he brought an action for the foreclosure of the $3,000 mortgage, and it was declared usurious. He then assigned to the plaintiff his rights arising out of the satisfaction of the liens, and she obtained a judgment declaring her assignor entitled to be subrogated to such prior liens so paid by him and entitled to enforce the same. Held, error.

      Appeal from supreme court, general term, fourth depart-^ ment.

      John C. Hunt, for app’lts; J. R. Shea, for resp’t.

       Reversing 35 Hun, 663,

   Rapallo, J.

The plaintiff, as assignee of Payn Bigeiow,' sought by this action to revive and be subrogated to and enforce certain liens upon real estate" of the defendant Hall, which Bigelow had paid, and procured to be discharged of record under an agreement with Hall. . These liens consisted of two mortgages executed by Hall, and of certain legacies which were charges on the real estate in question. It appears, by the findings of the trial judge, that on the 17th of October, 1874, an agreement was entered into between Hall and Bigelow whereby Bigelow agreed to advance the amount of the said liens, and pay them off. and also to advance to said Hall the sum of $919.71. in cash, and Hall agreed that, to secure the payment of said advances, and of the further sum of $150 as a bonus, Hall and his wife would execute a mortgage on said premises to Bigelqw. In pursuance of this agreement, the mortgage was executed for $3,000 and interest, which amount included the amount then due on said liens, and the cash advance of $919.71, and the bonus of $150. This mortgage of $3,000 provided, in express terms, that, as part of the consideration thereof, Bigelow was to assume and pay the before-mentioned liens. Bigelow paid a portion of the liens, and they were discharged of record; and he afterwards brought an action against Hall and others for the foreclosure of the $3,000 mortgage, in which action such mortgage was adjudged void for usury. After that adjudication he assigned to the plaintiff his cause of action arising out of the satisfaction of said hens, and she thereupon brought this action, and judgment was rendered in her favor in the supreme court, adjudging that her assignor, having paid said hens, and, there being a junior mortgage, was entitled to be subrogated to said prior liens so paid by him, and entitled to enforce the same.

We are of opinion that this judgment was erroneous. The only claim of Bigelow to be junior mortgagee rested upon his $3,000 mortgage, which was adjudged to be void for usury, and upon his agreement to pay off the prior hens, which agreement was part of the usurious contract. It was necessary to resort to this usurious contract and security to make out any equitable right in Bigelow to subrogation. If they were left out of the case he would stand as a mere volunteer, and would have no right to subrogation, Acer v. Hotchkiss (97 N. Y , 395; Gans v. Thieme (93 N. Y , 232); and whenever an equitable right to subrogation cannot bo made out without resorting to some agreement or security which is void for usury, no such equity exists. We think the case of Baldwin v. Moffett (94 N. Y., 83,) is decisive on this point. None of the cases cited on the respondent’s brief, or in the opinion at general term conflict with this principle, or sustain the claim of the respondent.

i In the cases of Ellsworth v. Lockwood (42 N. Y., 89); Barnes v. Mott (64 N. Y., 397); Cole v. Malcolm (66 N. Y., 363); Gans v. Thieme (93 N. Y., 225), no question of usury was involved, and they have no special bearing on the case. Cook v. Barnes (36 N. Y., 520); Winsted Bank v. Webb (39 N. Y., 325); Gerwig v Sitterly (56 N. Y., 214); Real Estate Trust Co. v Keech (69 N. Y., 248; Russell v. Nelson (99 N. Y., 119), simply hold that when an existing valid debt is renewed, or the time of payment extended, or a valid security held therefor is canceled by means of a subsequent agreement or security which is void for usury, the original debt or is not invalidated, and, if it has been discharged by means of the usurious security, it will be revived and enforced. In Patterson v. Birdsall (64 N. Y., 294), the plaintiff was the holder of a valid junior incumbrance, which entitled him, without reference to the usurious agreement, to redeem from prior incumbrances, and be subrogated thereto.

In the case now before us the right of the assignor of the plaintiff to pay the prior incumbrances, and his claim to subrogation, rested wholly upon the usurious agreement. He had no position of junior mortgagee, except under the mortgage, which was adjudged void for usury. The judgment should be reversed, and a new trial ordered; costs to abide the event.

All concur, except Ruger, C. J., not sitting.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    Avid Levy et al., Resp’ts, v. Robert Solomon, App'lt.

      (Court of Appeals,

      Filed May 10, 1887 )

    1 Execution against person — Discharge from imprisonment—Code Civ. Pro . § 111, amd. 1886.
    Codo Civ Pro, §111 as amended 1836, declares, in the first clause, that no person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution, or any other mandate, against the person, to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in non payment of alimony or counsel fees, in a divorce case, where the amount so to be paid is less than the sum of $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a period longer than six months * * * No person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution, or other mandate, against the person. Meld, that the meaning of the section is: That nu person whose condition answers the terms referred to in the first clause shall be imprisoned, either within the walls of a jail or within the jail limits, tor a time exceeding six months; and if the recovery for the enforcement of which the execution or other mandate is issued, or the amount required to be paid by the com mitment is less than $500, then his imprisonment within the prison wall shall not exceed thrcee months
    2. Same
    That both clauses include only final process or executions to enforce re coveries. and would not apply so as to discharge a defendant at the end of six months who had been arrested and confined to jail limits upon mesne process upon the ground that he had concealed etc a part of chattels for which an action liad been brought
    3 Same.
    Such an order discharging him was appealable as it deprived plaintiffs of a remedy given by statute which they might retain until the prisoner was discharged according to law.
    Appeal from supreme court, general term, first department.

      Walter F. Severance, for app’lts; Alex Blumenstiel for resp’t.

       Reversing 40 Hun, 639, mem. 1. N Y. State R , 207.

   Danforth, J.

The record shows that the plaintiffs sued to recover personal property, and on the ninth of February procured the defendant’s arrest upon the ground that he had concealed, etc., a part of the chattels, to recover which the action was brought. On the same day the defendant gave a bond for the jail limits, and has since been confined within them. It may be inferred that the cause is at issue, but it has not been tried, nor has any judgment gone against the defendant. Upon an affidavit showing his arrest and continued imprisonment, as above stated, the defendant procured an order requiring the plaintiffs to show cause why he should not be discharged from the limits, and “from arrest herein,” and the bond given by him be canceled and annulled. The motion was granted. Upon appeal to the general term the decision was affirmed, and the plaintiffs appeal to this court.

The defendant justifies the order of the court below upon the sole ground that, under the order of arrest, his imprisonment had continued six months, and he was there fore entitled to a discharge under the provisions of section c. 672, of the laws of 1886. On the other hand, the plaintiffs contend that the statute applies to an imprisonment on final process only. We are of that opinion.

The general title of the act of 1886, supra, is “ An act to amend the Code of Civil Procedure,” and the particular portion on the interpretation of which the defendant relies is the amendment of section 111 of the Code. The original section (111) relates to the “support of prisoners in Kings county.” The amendment introduces new matter, as to the meaning of which nothing can be gathered from the context. It declares, in the first clause, that no person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution, or any other mandate, against the person, to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court, in non payment of alimony or counsel fees, in a divorce cáse, where the amount so to be paid is less than the sum of $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period than six months, and requires the discharge of such person at the expiration of those respective periods. Then follow these words: “ No person shall be imprisoned Avithin the jail liberties of any jail for a longer period than six months upon any execution, or other mandate, against the person. *’

These sentences are, I think, to be read together, and, so read, admit of but one meaning, viz.; That no person whose condition answers the terms referrred to in the first clause shall be imprisoned, either Avithin the walls of a jail or within the jail limits, for. a time exceeding six months; and if the recovery for the enforcement of which the execution or other mandate is issued, or the amount required to be paid by the commitment, is less than $500, then his imprisonment within the prison walls shall not exceed three months. This is the only distinction applicable, under the first clause, where the debtor is in close confinement; while, under the second, when, as to the walls of the jail and within certain limits, he is at large, the amount of the recovery or sum to be paid is unimportant. The respondent concedes that, under the first sentence only a final process or mandate, after an adjudication fixing the amount due, is referred to; but argues that the change of language in the second clause or sentence indicates a change in the intention of the legislature, and a design to make it more extensive in its application than the former; that, although the first included only final process or mandate, the second is of wider signification, and includes all mandates against the person, and so includes simple orders of arrest issued at the time of the commencement of the action, and before any recovery. This would require us to hold that the legislature intended to alter the description of the process by virtue of which the imprisonment was had, rather than the description of the place of imprisonment. I find no reason for doing this. The statute, in the first place, characterizes the process as “an execution, or any other mandate, against the person, to enforce the recovery of a sum of money;” and in the next sentence, speaking of the imprisonment in a different place, repeats the words “upon any execution, or other mandate, against the person,” but does not again use the descriptive or qualifying words. This may have been to avoid the repeated use of the same words. They are to be implied, for the statute relates to a single matter—the relief of the imprisoned debtor; and this would be greatly impeded if a different meaning can be given to the second phrase.

According to the respondent, the first clause includes only final process or executions to enforce recoveries. It, therefore, does not include mesne process. The second, he says, includes mesne process, or orders of arrest. It would follow that a debtor arrested on such process, but unable to procure bail for the limits, could not be discharged, because confined within the walls; while one arrested in the same manner, and already outside the walls, though within the limits, could be wholly liberated. That would seem to be an absurd conclusion, and not to be adopted unless necessary to give meaning to the act. This is avoided by construing the second clause with reference to the first, and the true meaning is that which we have above ascribed to it.

The general object of the act in question (section 5, chap. 672, Laws 1886) is to limit the time of imprisonment under process issued against any person after the sum due from him had been adjudged, whether the imprisonment was within the walls of a jail, or within its liberties. If confined within the walls, the amount of the recovery, or the sum to be paid by the imprisoned person, determines whether the imprisonment shall end at the expiration of three months, or at the expiration of six months. But, if he had been admitted to the jail liberties, there is no such qualification, and the six-months period applies to all cases within the act. The defendant is not an imprisoned debtor within the act. No execution or other mandate has been issued against him to enforce the recovery of a" sum of money. No recovery has been had against him, nor has he been ordered to pay any money. ' We think, therefore, his discharge was improperly allowed. The order was appealable. It deprived plaintiffs of a remedy given by statute, which they might retain, until the prisoner was discharged according to law.

The orders of the general term and special term should therefore be reversed, and the motion to discharge the defendant, and cancel the bond given by him for the liberties of the jail, denied, with costs in all courts.

All concur.


author: Per Curiam.

text:
    Paul Graville, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Court of Appeals,

      Filed May 10, 1887.)

    Common carrier—Passenger should not stand upon platform.
    Although there arc no seats inside a car, and people are standing therein, yet, if there is room for a passenger, he is bound to go there, and it is his duty to go inside the car when requested so to do by a person having charge of the train.
    Appeal from general term, New York common pleas. Action for assault.

      Edward S. Rapallo, for app’lt; L. A. Gould, for resp’t.
   Per Curiam.

The counsel for the defendant requested the court to charge the jury that although there were no seats inside the car, and people were standing therein, yet, if there was room for the plaintiff, he was bound to go there. The court refused to charge as requested, and to this refusal the counsel for defendant excepted. We are of opinion that the defendant was entitled to this instruction, and that the exception was well taken.

It appears from the plaintiff’s testimony that he boarded a train going north, at Houston street, at about six o’clock Sunday evening. The car at the time was crowded, and the plaintiff, with other passengers, stood on the platform. When the train reached Thirty-fourth street, the brakeman requested the plaintiff and the other passengers on the platform to go inside the car, but, as there was no room in the car at that time, the plaintiff did not do so. Passengers got out of the car at Forty-second street, and, on the train leaving that station, the conductor requested the plaintiff to go inside, but he declined to do so. The conductor or brakeman then pushed the plaintiff inside the car. When the train reached Forty-seventh street, the plaintiff, as he testifies, passed from inside the car on to the platform, for the purpose of leaving the train at that station, and when he reached the platform the conductor took hold of him and pulled him off the car, and a struggle ensued between the plaintiff and the conductor, the details of which it is unnecessary to state. The plaintiff on the trial testified to the act of the brakeman in pushing him into the car, and to the subsequent assault at the station, and relied on both acts as constituting grounds of recovery. Both of the transactions were litigated without objection, and were submitted by the court to the jury, and they rendered a general verdict.

The request to charge related to the first assault, and, if it should have been granted, the error cannot be disregarded. The counsel for the defendant on the argument sought to justify the act of the brakeman in pushing the plaintiff into the car on thegiound that his standing on the platform was a dangerous act, and interfered with the proper management of the train, and that the brakeman was authorized to use necessary force to compel the plaintiff to go inside the car if there was standing room, although all the seats were occupied. This question is not,' we think, open to the defendant on this record. The court charged the jury that the brakeman had no right to force the plaintiff inside the car upon his refusal to go inside, and that the only remedy was to eject the plaintiff from the car on reaching the next station. The counsel for the defendant did not except to this ruling, but by his silence acquiesced in its correctness, and it must be regarded as the law of the case. But assuming that the law in this respect was correctly stated, as to which there is, it seems to us, room for serious doubt, nevertheless we think the court should have charged the proposition requested. Whether, on the plaintiff’s refusing to comply with the request of the brakeman to go inside the car, the latter was authorized, to use force to compel him to do so, is a distinct question. ' It is a matter of common knowledge that it is considered unsafe for passengers to ride on the platform of a running train. By so doing they expose themselves and the other-passengers to unnecessary danger. The law exacts of carriers of passengers the highest degree of care for their safety. The control of trains is necessarily placed in the hands of employees. It is impossible to foresee all the exigencies which may demand prompt action on their part to avert danger or accident. The safety of passengers on: railroads requires that they should comply with reasonable regulations, and acquiesce in reasonable directions of persons to whom the management of the train is committed.

It is obvious that the crowding of passengers on the plat form of a steam railroad car may seriously embarrass the trainmen in the performance of their duties, and it is, we think, the plain duty of a passenger standing on a platform to go inside the car when requested so to do by a person having charge of the train. The request to charge was material, as bearing upon the question of damages, assuming that the use of force by the brakeman was not justified. Although the brakeman may have been mistaken as to his authority to enforce a compliance with the request made to the plaintiff, yet it was the duty of the plaintiff to comply, and his refusal tends to mitigate and explain the conduct of the brakeman, and to show that the assault was not wanton or malicious. The fact that there were no unoccupied seats in the car did not, we think, change the duty of the plaintiff to go inside. If he had any well founded complaint, against the company for not providing adequate accommodations for passengers, this did not, we think, release him from the duty of leaving the platform and going inside the car, although there was standing room only. The car was crowded when the plaintiff entered it at Houston street. He placed himself immediately in a position where he was compelled to submit to some inconvenience, and he was not freed from the obligation to obey the reasonable directions of the trainmen, made with a view to the general convenience and safety, because there^was no vacant seat.

For the error in the refusal to charge, the judgment should be reversed, and a new trial granted.

All concur.


author: Finch, J.

text:
    Frank L. Warrin, App’lt, v. Francis B. Baldwin, Resp't.

      (Court of Appeals

      Filed May 10, 1887.)

    County treasurer—Fees—Fob lands sold to town on tax sale.
    By chapter 305, Laws 1840, anil chapter 490, Laws 1847, all claims against a town, are to be audited by the town board, and for that purpose must be presented in items and verified by the oath of the creditor. The county treasurer of Queens county had been in the habit of paying himself out of the trust funds in his possession, the fees allowed by law upon sales of laud for unpaid taxes Held, error- that the fees allowed him for such services by Laws 1877, chap 268, Laws 1878, chapter 326, simply made the fees a charge against the town, and until it pays the charge, the fees and expenses do not come to him as such or become his money, and an injunction will lie to prevent him fiorn so applying them under Laws 1881, chap. 531, as “ an illegal official act ”
    - Appeal from supreme court,, general term,'second department.
    Frank L. Warrin, a tax payer of the town of Newtown, Queens county, applied for an injunction to restrain the county treasurer from paying to himself, without audit by any board, the fees allowed by statute for striking off to the town at the annual tax sale such lots as are not bidden for by actual purchasers.

      Francis M. Scott, for app’lt; H. E. Sickels, for resp’t.

       Reversing 35 Hun 334

   Finch, J.

The act of 1881 (chapter 531), expressly authorizes a tax payer to maintain an action for the prevention and restraint of “any illegal official act” on tiie part of the officeis of any county, town or municipal corporation; and, if the intended and threatened act of the defendant as county treasurer is illegal, the plaintiff is entitled to sue, and to prevent the meditated violation of law, irrespective of the consequences of such violation. The statute assumes that any illegal official act is or may be injurious to the corporation when done by its servant, and allows him to be restrained simply because of the illegality. The complaint here is that the county treasurer has been in the habit of paying himself out of the trust funds in his possession the fees allowed by law upon sales of land for unpaid taxes, without previous audit of his claim, and alone determining the amount of the debt due from himself as trustee to himself as officer. He stands here upon his right, not denying his past habit or future purpose, but insisting that his conduct is not illegal, and so his action should not be restrained.

The sale of lands for unpaid taxes in the county of Queens is the subject of a special statute. Laws 1877, chap. 268; Laws 1878. chap. 226. Under its provisions the receivers and collectors of taxes are required to report to the county treasurer all such taxes. The latter is directed to examine the list, and having rejected therefrom such as cannot be lawfully enforced by reason of imperfect description or otherwise, to advertise them for sale. Pending the notice, owners or parties in interest may pay the taxes, with charges and expenses, and the lands thus freed from liability must be withdrawn from the proceedings. The balance are to be sold by the treasurer at public auction for the shortest term of years for which any person will take the premises and pay the taxes, with percentage, interest and expenses. In case no bids are made the treasurer is commanded to strike off the land to the town in which it lies for a term of 1,000 years, and in all cases of sales is to execute and deliver the proper leases. The act allows the county treasurer, as fees for his service, one dollar for every lot or parcel assessed which has been released by payment before sale; in case of sale, one dollar and fifty cents for each separate lot and parcel assessed and sold; where a lease is given, one dollar, to be paid by the person receiving it; and for making and certifying a search, three dollars; there is no difficulty and no dispute about these fees when actually paid by purchasers other than the town. Such fees belong to the treasurer, and may be received by him, and appropriated to his own use. They never become town or county funds, or a part of the trust money in the officer’s hands. But the situation is quite different where he strikes off the land to a town. In that event no money is paid or received, and the taxes and fees become purely matters of account. The statute provides that in such case the fees and expenses of publication “shall be a charge against said town.” They become a debt due to the treasurer, and are, when earned and expended, a claim in his favor against the town. Until it pays the charge, the fees and expenses do not come to him as such, or become his money. If he takes their amount from the • trust funds in his custody without audit or direction, he simply collects his own debt against the town out of moneys already devoted to other specific purposes, and fixes for himself the amount of the debt which he assumes to collect. The statute provides that all claims against the town must be audited by the town board (Laws 1840, chap. 305), and for that purpose must be presented in items, and verified by the oath of the creditor. Laws 1847, chap. 490, § 2. The officer repudiates the need of this audit. _ But the act is broad and general, and admits of no-exception unless as the product of some special legislation. Such exception cannot fairly be reasoned out of the act of 1881. Its permission that the treasurer may “ charge and receive ” the fees allowed, implies that somebody is to pay, and is satisfied by an application to the cases in which the fees are paid as such. It is said there is no need of an audit because the amount is fixed, But the number of sales may be incorrectly asserted or the expenses unduly increased, and the auditing board have a right to be satisfied that the fees claimed have all been earned. It is suggested that the treasurer must collect his fees at once in order to correctly perform his duties, since on a sale he must make a certificate stating the amount of tax, with interest and expenses added, so that one coming to redeem may know what to pay, and since the town may assign its certificate for the amount of bid, expenses and treasurer’s fees, with twelve per cent interest from date of sale. In each case the fees of the treasurer are fixed, though he is not paid, and his duty is easily and may be correctly performed. Whether the town assigns or does not is its own concern, and does not affect its liability to the treasurer for the fees that he has earned.

It is added that his accounts are annually subjected te the examination of the board of supervisors; but, w-hen they are, his voucher for a claim against the town should be the audit of its board. The act of 1884 (chapter 484) now specifically requires such audit, and makes certain for the future what was disputed in the past. It is easy to see the evils which might result from a contrary rule, and we deem it our duty to hold that the act of 1881 did not authorize the treasurer to collect from the trust funds the fees in question without the audit of the town board.

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

All concur.


author: Earl, J.

text:
    Elias Stone, App'lt, v. The Franklin Insurance Company of Boston, Resp't.

      (Court of Appeals,

      Fited May 10, 1887.)

    1. Insurance—Notice of cancellation—Service upon broker.
    Defendant issued a policy to a broker for plaintiff’s assignor, containing a notice that “ the company reserves to itself the right at any time, and for any cause, to return the assured the unexpired premium pro rata, which shall have the effect to cancel and annul the policy.” The premium was never paid, although the agents of defendant weie in the habit of allowing said broker to takefnsurance and pay at his convenience. Held, that a notice of cancellation served on said broker was effectual, although, at the time of the service a pro rata share of the premium was not returned; that if the premium could be paid by the credit, it could be restored by the cancellation of that credit.
    2. Same—Authority of broker.
    Frank, the broker, had procured insurance for plaintiff’s assignor for two years choosing the companies. The insured did not know, after the fire, how much insurance it had, until he gave it the information; he had possession of the policies, and did not object to the service of cancellation upon him, etc., etc. Held, that he was so far the agent of the assured that notice to him was notice to the assured.
    Appeal from a general term of the supreme court of New York, first department.
    Action to recover for loss of property alleged to be insured against fire under policy No. 9,190 of the Franklin Insurance Company of Boston.

      Benno Loewy, for app’lt; Osborn E. Bright, for resp’t.

       Affirming 34 Hun, 633, mem.

   Earl, J.

On or about the .18th day of February, 1881, the defendant issued a policy insuring certain property of the Standard Tinware Company of the city of New York, to the amount of $1,500, for one year from the 16th day of February, 1881. The policy contained this clause: “To protect itself against such increase or change of the risk as may not, under the above conditions, render this policy void, the company reserves to itself the right at any time, and for any cause, to return the assured the unexpired premium pro rata, which shall have the effect 'to cancel and annul this policy.”' And, also, the following clause: “ It is a part of this contract that any person, other than the assured, who may have procured this insurance to be taken by this company, through its regularly appointed agents, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.” The insurance was procured through an insurance broker named Frank from Langford & Co., who were agents of the defendant. The premium was never paid; but, by the course of business between Langford & Co. and Frank, they allowed Frank to take insurance, and pay when it suited his convenience. On the 26th day of February, Langford & Co. sent to Frank this notice: “Dear Sir: The Franklin Insurance Company of Boston, desire to cancel their policy No. 9,190, covering property of Standard Tinware Company, Nos. 394 and 396 1st Avenue, N. Y. The same will be held binding until the twenty-eighth, inst., 12 o’clock, noon. After said date the company will not be liable for any loss under said policy. Yours respectfully.”

This notice came to Frank’s hands about nine o’clock a. m. on the twenty-eighth, and in the evening of the same day the property insured was damaged by fire to the extent of $4,600. Six other insurance companies had policies upon the same property. On the 16th day of June, 1881, the Standard Tinware Company assigned its claim against the defendant upon its policy to the plaintiff, and in February, 1882, he commenced this action. He claims that the policy was in force at the time of the fire, while the defendant claims that it was effectually canceled before the fire.

The plaintiff contends that the cancellation was ineffectual, because at the time of the notice of cancellation a pro rata share of the premium was not returned. But the premium had never in fact been paid. If it could, in any sense, be treated as paid, it was so paid by the credit given to the broker Frank. The defendant had never actually received anything, and therefore it had nothing to return. If the premium could be paid by the credit, so it •could be restored by the cancellation of that credit, and after the defendant gave the notice canceling the policy, its charge against Frank or the tinware company was thereby canceled. If it could thereafter enforce payment of the premium against any one, it would have been only a pro rata .share thereof for the time intervening between the sixteenth and the twenty-eighth days of February, at noon, when the cancellation took effect. It was the agreement between the parties to the insurance that the insurance company should have the right to cancel the policy, and it was certainly not contemplated that it should make a present to the insured in case the premium had not been paid as a condition of its right to cancel. We do not think, therefore, that the contention is sound that the cancellation was ineffectual on account of the non-return of the pro rata portion of the premium.

It is further claimed on behalf of the plaintiff that Frank had no authority to receive this notice of cancellation, and that notice to him was not notice to the insured. We are of opinion that, upon the undisputed evidence, Frank was so far the agent of the tinware company that notice to him was notice to that company. He had been the agent of the tinware company for about two years, through whom it procured insurance upon its property from various" companies, in all to the amount of $10,000. It does not appear that he received any particular instructions as to the companies from which he was to receive insurance, or as to the rates of premium, or the amount to be insured by any particular company. It is inferable that all these matters were left to his discretion. After the fire, Scheider, the president and general manager of the tinware company, did not know how much insurance the company had, nor what policies it held, until he called upon Frank the morning after the fire, and obtained the information from him. The defendant’s policy, and probably all the other policies, remained in the possession of Frank until after the fire. Frank, when he received the notice of cancellation, retained the same, and in no way objected that he was unauthorized to receive the notice; and when Scheider called upon him the next morning after the fire he informed him of the receipt of the notice, and he in no way questioned Frank’s authority to receive it. On the afternoon of the same day Langford, one of defendant’s agents, called upon Scheider, informed him that the policy was canceled, and thereupon Scheider surrendered it to him, without objection, as a canceled policy. On the day after the fire formal notice of the loss, and in about two weeks after the fire formal proofs of loss, were served upon all the other companies, but not upon the defendant. In the proofs of loss thus served the insurances in the other six companies were specified, and the loss was apportioned among them in proportion to the amounts respectively insured by them, and one of the companies specified in the proofs paid to the tinware company its share of the loss as thus determined. In those proofs the defendant was not named among the insurance companies having policies upon the property. No claim of liability against the defendant on its policy was made until about three months after the fire, and no proofs of loss were served upon the defendant until about three months and a half after the fire. From all these facts, including the stipulation in the policy above set out, it is clear that Frank was understood by the parties to be the general agent of the tinware company to procure and deal with this insurance. During more than three months after the fire his authority to that extent seems to have been conceded by the tinware company, and was not questioned by any one. If upon this evidence the jury had found that Frank was not authorized to receive the notice, their verdict would have been so far contrary to the evidence-that it would have been the duty of the trial judge to set it aside.

It is true that Scheider testified that Frank was simply the broker whom he authorized to get so much insurance, and that he did not consider him his agent, and that Frank testified that he had nothing to do “but to place the business” (meaning, propably, ¡to perfect the insurance) asScheider ordered him to do. But these were mere expressions of opinions by the witnesses while testifying, which in no way impaired the force and significance of the other evidence, or changed its legal effect. It is a matter of some-significance that nothing was said about the extent of Frank’s agency in the charge of the judge, and he was not. requested to submit the facts in reference to such agency to-the jury. If Frank had had no authority, except as a broker, to procure this insurance, and the defendant had been obliged to rely solely upon the clause in the policy above set out to establish his agency, then this case would have been in that respect like the case of Herman v. Niagara Fire Insurance Company (100 N. Y., 411). But the evidence bearing upon Frank’s agency distinguishes this case from that. _ Certainly, so long as Frank held the policy, and it was carried upon his credit, and not delivered to or accepted by the insured, notice of cancellation could be given to him, and, upon receipt of such notice, it would be his duty, as broker, to procure other insurance. Suppose in this case the notice had been given to him within one hour after the policy was delivered to him, would any one doubt that the policy would have been thereby effectually canceled, and that it would have been his duty at once to procure other insurance ? The fact that it remained in his possession for ten days does not affect the principle, or make any difference in his status, authority and obligation.

The further claim is made that there was not sufficient proof that Scheider was authorized to represent the tinware company. We think the proof is ample that he was so-authorized, and that he was the general manager of the company. It appears that the tinware company was the successor of Joseph Scheider & Co., and so it was printed upon the letter-heads of the company. He was its president, and acted for and represented it in all its transactions in reference to the insurance upon its property, and the adjustment and settlement of the loss. The assignment of the claim to this plaintiff was executed by him. When testifying, he spoke of the bookkeeper of the company as “my bookkeeper,” and of Frank as “my agent,” thus showing that, in his estimation at least, he was the company; and there is no hint in the evidence that any other person had authority to represent it.

From all this evidence the inference is irresistible that he was the general manager of the company, authorized to represent it, and the trial judge could properly have so determined as matter of law. We are, therefore, of opinion that, upon the evidence, as it appears in this record,, the trial judge could, if moved thereto by the defendant, have non-suited the plaintiff. The plaintiff, therefore, has no cause of complaint of the verdict of the jury against him, or of any error in the charge of the judge. If the policy had not been canceled before the fire, and thus had remained in force, its subsequent surrender to the defendant would not have extinguished its cause of action for its loss. It is the cancellation of the policy before the_ fire, and that alone, which requires the affirmance of this judgment

The judgment should be affirmed, with costs.

All concur, except Ruger, C. J., dissenting, and Finch, J., absent.


text:
    The Syracuse Savings Bank, Resp’t, v. Erastus T. Holden and others, App’lts, and Annie G. Burton and others, Infants, etc., Resp’ts.

      (Court of Appeals,

      Filed April 19, 1887.)

    Trust deed—Construction of—Power to mortgage.
    Defendant held land under a deed to Cornelia Burton, in trust, for Annie, Grace and Burr Burton, with power to sell and convey or mortgage, without the appointment of a guardian, of the second part, the land with the rents, issues and profits being granted to the “ parties of the second part, their heirs and assigns forever,” etc. Held, that while the deed was informal, yet sufficient appeared to show that it was not the intention that Mrs. Burton should execute the power for her own benefit, and that mortgages given by her to appellant to secure the debts of her husband were not a valid execution of the power, and were void.
    Action commenced in Onondaga county special term, supreme court, appealed to general term, fourth department, and then to this court.

      Louis Marshall, for app’lts; Hancock & Munro, for resp’ts.
   Earl, J.

Prior to March 14, 1867, Henry B. Burton owned certain land in the city of Syracuse, and on that day, through the medium of a third person, he conveyed it to his wife, Cornelia H. Burton. On the 8th day of July, 1876, she, without any consideration, conveyed the land to Emily Howland, her mother, and on the fifteenth day of the same month Mrs. Howland, without any consideration, conveyed the land by a deed which we are now called upon to construe. The deed purports to be an instrument between Emily Howland, of the first part, and “ Cornelia H. Burton, wife of Henry B. Burton, of Syracuse, N. Y., in trust for Annie G. Burton, Grace Burton and Burr Burton, with power to sell and convey or mortgage, without the appointment of a guardian, of the second part;” and it grants the land, with all the rents, issues and profits thereof, to the parties of the second part, and “to their heirs and assigns, forever,” to have and to hold the same to the parties of the second part, “their heirs and assigns,” to the sole and only proper benefit and behoof of the parties of the second part, “their heirs and assigns, forever.” There is no other reference to a trust or power except that contained in the first clause of the deed above set out. In the construction of this deed we are enjoined by statute “to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.” 1 Rev. St., 748, § 2. Both parties agree that no valid trust was created, as no trust purpose was specified which is mentioned in the statute authorizing the creation of express trusts. 1 Rev. St., 729, § 55. A mere formal passive trust was attempted to be created, which the statutes execute by vesting the title in the beneficiaries. Sections 47, 49. They also agree that a valid general power was created under "the statute defining and regulating powers (1 Rev. St. 732, §§ 74, 77), and we will proceed upon that assumption. They differ, however, as to the nature of the power. The appellants claim that no one but the grantee of the power was interested in the execution thereof, and that, therefore, it was a beneficial power under section 79.

While the deed is quite informal, and imperfect in the expression of the intent of the parties, yet we think sufficient appears to show that it was not their intention that Mrs. Burton should execute the power for her own benefit. The conveyance was made in trust for the three persons named, who were the children of Mrs. Burton. They were the real beneficiaries of the grant, and the power to sell and convey or mortgage was probably given because they were infants, and the object was to authorize a conveyance of the land, when desired, 'without the appointment of a guardian for the infants, and thus to avoid the expense and delay which would ensue if the land were, required to be sold or mortgaged only by a compliance with the statutes regulating the sale and mortgaging of the lands of infants.

The case of Jennings v. Conboy (73 N. Y., 230), is notan authority for the contention of the appellants. In that case there was no indication whatever in the will that the power to sell was to be executed for the benefit of any other person than the grantee of the power, and that distinguishes that case from this. Here we find a satisfactory indication that the power was to be executed wholly for the benefit of the infants, and it is therefore, as claimed on their behalf, a general trust power under section 94 of the statutes, and the land passed to and vested in the infants subject to the execution of the power. Sections 47, 49, 58 and 59. Therefore the mortgages given by Mr. Burton to the appellants to secure the debts of her husband were not a valid execution of the power, and were void.

The judgment of the general term should be affirmed, with costs.

All concur except Andrews, J., taking no part.


author: Per Curiam

text:
    Samuel W. Nash, Resp't, v. White's Bank of Buffalo, App'lt. Samuel W. Nash, Resp't, v. The Manufacturers and Traders Bank, App'lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Banks and Banking—Usury—Laws 1870, chap. 163, repealed by laws 1880, chap. 567
    The effect of chapter 567, Laws 1880, was to repeal the penalties imposed by chapter 163 Laws 1870, on banks for taking more than seven per cent dividend, so that an action brought under the act of 1870, can no longer be maintained.
    These actions were commenced in October, 1873, to recover penalties‘given by chapter 163, Laws 1870, for taking illegal rates of interest. The first section of the act provided that “ every banking association, * * * is hereby authorized to take, receive, reserve and charge, on every loan or discount made, or upon any note, bill of exchange or other evidences of debt, interest at the rate of seven per cent per annum, * * * and in case a greater rate of interest has been paid, the person * * * paying the same * * * may recover back twice the amount of the interest thus paid from the association taking or receiving the same.”
    The complaints in each of the actions contained 274-counts, each charging that plaintiff presented to the defendant a promissory note for account, and that defendant discounted it ‘ ‘at a greater rate of interest than seven per cent per annum (specifying amount, etc.), in violation of the provisions of the statute referred to.” Chapter' 567 of the Laws of 1880 amended the first section of the act of 1870, in the words: “is hereby amended so as to read as follows,” merely substituting six in place of seven.

      Sherman S. Rogers, for app’lts; Joel L. Walker, for resp’ts.

       Reversing 37 Hun, 57.

   Per Curiam

We are of opinion that the effect of the •act of 1880 (chapter 567), was to repeal the penalties imposed by chapter 163 of the Laws of 1870, and that consequently this Action, which was brought under the act of 1870, could no longer be maintained; the act of 1880 containing no provision saving pending actions or existing rights of action. The provisions of the general repealing act of 1828 (sections 6 and 7), related only to the acts repealed by that statute, and had no effect on subsequent legislation. Mongeon v. People, 55 N. Y., 613. If the act of 1870 was repealed by the act of 1880, the subsequent legislation cannot affect this case, for it could not revive an extinguished cause of action.

The judgment must be reversed, and complaint dismissed.

All concur except Danforth, J., not voting.


text:
    Florian Fleckenstein, Resp't, v. The Dry Dock, East Broadway, etc., Railroad Co., Appl't.

      (Court of Appeals,

      Filed April 19, 1887.)

    .Hegligence—Street railways—Right of way.
    Street railway cars are confined to the track and cannot turn out to avoid obstacles, hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or wilfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks, and if they fairly and in a reasonable manner respect the paramount right of the railway, and without fault on their part are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.
    Appeal from a judgment of the supreme court, general •term, second department, affirming a judgment entered on a verdict for plaintiff.
    Plaintiff was the driver of a large two-horse brewery-wagon, and in the forenoon of June 18, 1883, halted his team on the easterly side of Lewis street, New York city. He was on the proper side of the street (the right hand side), and his team and wagon were close in to the curb. Lewis street is very narrow, only twenty-five feet wide between the curbs. Plaintiff dismounted, and proceeded to carry three kegs of beer into the cellar of the premises in front of which he had stopped. While he was taking down the last keg, some employees of the street cleaning department, for the purpose of cleaning the gutter in which his team and wagon stood, led the horses forward and outward, and left them so that the horses stood “ clear over to the railroad track.” When the plaintiff emerged from the •cellar-way, he saw this change, and at the same time saw one of defendant’s cars about half a block distant coming to-wards his team quite rapidly. He sprang to his horses’ heads to back the team and wagon off the track; but, before he could succeed in his purpose, the car was driven against him, knocking him down and injuring him.

      Edmund Randolph, for def’t and app’lt; Stephen B. Jacobs, for pl’ff.

       Affirming 35 Hun, 669, mem.

   Earl, J.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant’s road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence there was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks. They must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

The judgment should be affirmed.

All concur.


text:
    Hugh F. McLachlin and ano., Resp't, v. James E. Brett, App'lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Set off—Right to, lost, as against goods obtained of agent if principal DISCLOSED BEFORE DELIVERY OR PAYMENTS.
    Defendants had for some years been buying lumber of H & Co., and the latter were largely indebted to them, which it was expected would be arranged by the sale of a quantity of shooks consigned to the former to be sold on commission. While the shooks remained unsold, defendants contracted with H & Co. for the sale and delivery of a large quantity of lumber, but before it arrived the former were informed that the lumber was owned by other parties, and that H & Co. were acting as agents. Feld, that the contract was executed, and, as defendants bad knowledge that H & Co. were not the owners of the lumber when they accepted the lumber, tliejr could not offset the amount due from H & Co. in an action, brought for its value by the real owners.

      Appeal from judgment of supreme court, general term, • first department, affirming judgment in favor of plaintiffs.

      Esek Cowen, for app’lt; Edward C. James, for resp’t.

       Affirming 34 Hun, 478.

   Finch, J.

The material facts in this case are substantially undisputed. For some years previous to 1875 the defendants had been in the habit of purchasing lumber in Canada of Hall & Co., dealing with that firm as owners- and in their own name. In the process a large indebtedness had accrued in favor of the defendants, which the parties, expected would be reduced by the sale of a quantity of shooks consigned by Hall & Co. to the defendants, to be sold by them on commission. While the shooks remained unsold, and the indebtedness referred to stood unbalanced or unaffected by their proceeds, and on or about September 23, 1875, the defendants made a contract with-Hall & Co. for the sale and delivery to them of 600,000 feet of specified lumber, upon a credit of three months. The order was very soon increased to 900,000 feet, which at the agreed price would have amounted to more than the outstanding debt, irrespective of the proceeds of the unsold shooks. This contract of purchase and sale was made binding by telegrams and letters which sufficiently manifested the terms of the agreement. That agreement was, of course, executory, and remained to be performed, the respective parties having only the right to compel performance, or recover damages for a breach. Before any of the lumber arrived at New York, and before title to any of it had vested in the defendants, the latter were, in substance, informed that the lumber shipped and on the way was not the property of Hall & Co., but was owned by other parties for whom Hall & Co were acting as agents. While some criticism is expended upon the manner and tenor of this notification, we deem it quite sufficient to charge defendants with a knowledge that Hall & Co. were not the owners-of the lumber with which they were proposing to fulfill their contract. The defendants accepted the lumber with this-knowledge. It turns out that the insolvency of Hall & Co., and a seriously diminished return from the sale of the shooks, has left a portion of the debt due from Hall & Co. unpaid, which balance the defendants claim to offset in this action brought by the real owners of the lumber; and whether that offset should be allowed or rejected, as the courts below have determined, is the principal question presented by this appeal.

The reasoning of the learned counsel for the appellants is founded substantially upon the validity and binding force of the executory contract of purchase and sale at its date. He answers the authorities, which deny the right of offset when notice of an agency and different ownership is given, “before the contract is completed” (Moore v. Clementson, 2 Camp. N. P., 22); “before they are delivered or paid for” (Barb. Set-Off, 135, 136); before the factor “delivers goods in his own name” (Rabone v. Williams, 7 Term R., 360); “by something which transpired before the contract was completed” (Hogan v. Shorb, 24 Wend., 463); by insisting that they relate to cases in which the sale and delivery are concurrent acts and there is no contract without the delivery; and he claims that in the present case the rights of the parties were fixed when the contract itself was made; that the right of set-off at once accrued; and when the principal sued, and took the benefit of his agent’s contract, he was liable also for its burdens.

We think the error in this reasoning lies in the assumption that the defendant obtained a right of set-off at the moment the contract was made. We are unable to admit that proposition. The contract was executory. While it remained such, it created no debt due to Hall & Co. against which there could be a set-off. Out of that contract a debt due from the defendant might or might not arise, and until it did there was nothing upon which a counter-demand could be applied. The defendant was not at once liable for the purchase-price of the lumber. Until its delivery or tender in accordance with the contract terms, the vendee was not bound to pay or give his note; and, until those conditions performed created a debt, there was none so existing as even to raise the question of off-set. If the vendors did not perform, the vendees would owe them nothing for the lumber, but, on the contrary, would merely have a further claim for breach of the contract. At the date of the contract, the added fact- must be noted that the real claim of the defendant was unknown and unliquidated, and could not be finally ascertained until the proceeds of the shocks were determined by a sale.

The debt was only liquidated in part. It was subject to reduction by the property already received from Hall & Co., but the proceeds of which were unknown. The right of offset, therefore, did not and could not arise at the date of the contract, and sprang up, if at all, at the date of delivery. But before that, notice of another ownership intervened. When the lumber came, and the vendee saw that the vendor, on a contract made with him as owner, was seeking to perform as agent, and instead of fulfilling his own obligation was substituting performance by another, such vendee could refuse the substituted performance in any case where his rights or interest would be injuriously affected by the change. Brett & Co. had been long dealing with Hall & Co. as owner, and in the process mutual accounts had been steadily debited and credited, and applied one upon the other. When the purchase was made, the balance, so far as ascertained, was largely against the vendor, and may have been made either as to quantity or price for that very reason. In such a case the vendees undoubtedly had a right to refuse to come under obligations to the new creditor, and did not break their contract with Hall & Co. if they stand upon such refusal. But being at liberty to refuse, and to demand performance by Hall & Co., under the existing circumstances and relations in strict accord with their contract, they were also at liberty to accept the lumber, with the necessary consequence that the whole purchase-price should become due to the real and disclosed owner, and none of it to Hall & Co., except as agents for that owner. And so it follows that the authorities stand upon just principles when they assert that the set-off is lost if the principal is disclosed before the goods are delivered or the payment made. The vendee is not then acting in the dark, and has his liberty of action remaining, at least, where his interests may be affected by the change of creditors, and so can have no equity to use the goods of one man to pay the debt of another. If he refuses, as he may, his contract relation with his vendor remains, and all his rights and remedies under it. But if he accepts he cannot complain that his rights are changed and harmed, since the acceptance is his free and voluntary act, made with full knowledge, and without being misled.

Certain questions of evidence remain to be briefly considered. One of the defendants was asked whether he ever knew or supposed or suspected that Hall & Co. were not the principals in the transaction. The question was certainly too broad. It could not have been truthfully answered in the negative, for the witness admits that he heard of plaintiff’s claim directly from .them in April, 1876. Indeed, he was permitted to answer that he knew of no such agency before February of that year, which covered the material portion of the time. He was also asked who he understood to be the owner of the lumber at the time of the sale and delivery The facts as to the notice given were proved. His understanding or misunderstanding of them could not alter what they disclosed. The letter of February 10,1876, was not objected to because written by Cooper. When offered, it was shown to the witness, and he was asked: “Is that the signature of Brett, Son & Co. by Cooper?” and answered, “It is.” The objection was “immaterial and incompetent, and as being subsequent to this lumber transaction.” There was no suggestion that the letter was not that of the firm, or was written without their knowledge or authority, which appears to be the present ground of complaint.

Other questions we have examined, but need not discuss. The judgment should be affirmed, with costs.

All concur.


author: Rapallo, J.

text:
    The Manufacturers and Traders’ Bank of Buffalo, Resp't, v.-Koch, Adm’x of Harry H. Koch, deceased

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Chattel mortgage—When fraud is a question for jury.
    Plaintiff had a mortgage upon the stock in trade and other chattels of the firm of L. C. Woodruff & Co., of which they took possession in November, 1884, and in December the sheriff levied upon and took possession of the same under certain executions, alleging that the chattel mortgage was in fraud of creditors of W. & Co. Held, that the court properly refused to non-suit plaintiff, on the ground that the mortgage was fraudulent, as all defendant’s evidence was controverted by plaintiff’s witnesses, and the question was one of fact to be considered by the jury.
    2. Same.
    There was some evidence that plaintiff was aware of an arrangement between the firm that they would give the mortgage in order to protect Richardson, one of their members, against his individual creditors, but the evidence was that the mortgage was demanded by plaintiff, as it required a new security. Held, that even if it did know of the claims of the individual creditors, it had a right to be secured, so as to have a preference over them, and securing such a preference was not a fraud.
    3. Same—Charge to jury.
    The court charged that it was for the jury to say whether the arrangement with Richardson, “if made, was made in good faith, and the intent was a change of possession and control, or on the other hand was a blind, as it had been called by counsel.” Defendant requested it to charge that “ the possession of the bank by R. was not such a possession by the bank as to remove the case from under the statute.” Held, the court properly declined to so charge, as the arrangement with R. was one of the circumstances of the case which the jury was permitted to consider, not on the question of an actual change of possession, but on the question of good faith.
    4. Same—Sales of mortgaged property.

      Held, That even if the bank through R. had notice of sales by mortagors, and of the appropriation of the proceeds, such notice was only evidence from which a previous agreement to permit such sales and appropriation might be inferred, and not ground for a direction to the jury to find for defendant.
    5. Same—Evidence—Motive or intent.
    A party may be examined as to his own intentions and motives when a question of fraudulent intent on his part is in issue, but he cannot be permitted to testify as to the motives or intent of another party.
    6. Same—Witness—Re-direct examination.
    It is discretionary with the court as to whether it will allow a witness on re-direct examination to be examined further as to matter called out on direct, but not referred to in the cross-examination.
    Appeal from general term, superior court of Buffalo.

      Matthew Hale, for app’lt; John S. Millburn, for resp’t.
   Rapallo, J.

This action was brought against Harry H. Koch in his lifetime as sheriff of Erie county. He having died after judgment, it was continued against the present defendant as his administratrix. The cause of action was the taking and conversion by the sheriff of certain personal property which was claimed by the plaintiff by virtue of a chattel mortgage made to it by Lauren C. Woodruff and Alfred B. Benedict, composing the firm of L. C. Woodruff & Co., of the city of Buffalo, to secure certain partnership liabilities of that firm. The mortgage covered the stock in trade and other chattels of the firm, and was dated the 30th of October, 1884, and duly filed the same day.

The mortgagee took actual possession of the mortgaged property on the 26th of November, 1884, and continued in possession down to the 26th of December, 1884, when it was levied upon and taken from its possession by the sheriff, who justified the taking under two executions issued on the 19th of December, 1884, upon judgments recovered the same day against said firm of L. C. Woodruff & Co., and alleged that the chattel mortgage under which the plaintiff claimed title was not made in good faith, and was in fraud of the creditors of L. C. Woodruff & Co., the mortgagors. On the trial the question of fraud was submitted to the jury, and they found in favor of the plaintiff, who had judgment on the verdict. That judgment was affirmed by the general term, and the defendant now appeals to this court. As no opinion was rendered in the court below, we must state our reasons for affirming its judgment.

The first point urged on the part of the appellant is that the trial court erred in refusing to. non-suit the plaintiff. The ground upon which a non-suit was claimed was, in substance, that the uncontroverted evidence established that the mortgage was fraudulent as against creditors. The evidence on the part of the plaintiff showed, that at the time the mortgage was given, October 30, 1884, there was a.valid indebtedness on the part of the mortgagors, as co-partners, to the plaintiff, to an amount exceeding the value of the property mortgaged, and the president of the plaintiff testified that the mortgage was given to secure then existing indebtedness, and any that might afterwards arise. The indebtedness in question arose out of dealings of the firm of L. C. Woodruff & Co. with the plaintiff, which had continued for several years before the giving of the mortgage; and it appeared in evidence that in the spring of 1884 the plaintiff had required security from the firm, and they had given it a similar mortgage, but that after the giving of that mortgage, the firm had continued in possession of the mortgaged property, and had carried on its business, in the course of which it had sold a large part of the mortgaged stock, and had replaced it by new purchases, which were not covered by the mortgage, and that the mortgage of October 30, 1884, was given with the view of covering such after-acquired property. During the running of the first mortgage, and before the giving of the second, the plaintiff had made an arrangement with Mr. Richardson, the bookkeeper of L. 0. Woodruff & Co., for an agreed compensation, to look after the interests of plaintiff as mortgagee, hut no actual possession was taken by or on behalf of the mortgagee until about a month after the giving of the second mortgage, viz., November 26, 884, when, the mortgage debt having become due, the plaintiff put a deputy sheriff in charge of the property. An arrangement was then made, allowing sales of the mortgaged stock, the proceeds to be paid over to the plaintiff as mortgagee, and applied on the mortgage, and afterwards, and before the levy by the sheriff, the plaintiff, as mortgagee, gave public notice of the sale of the property under the mortgage.

It was claimed on the part of the defendant that the mortgage given in the spring of 1884 was not intended as a security to the plaintiff, but for the purpose of protecting the property against the claims of the creditors of the mortgagors, and enabling them to continue their business foi their own benefit; that it was agreed that the mortgagors might make sales for their own benefit; and that the mortgage of October 30, 1884, was a mere renewal or continuation of the previous mortgage. All these points were controverted by testimony on the part of the plaintiff, and presented questions of fact for the jury. The only evidence of actual intent to defraud creditors was to the effect that Lauren C. Woodruff, one of the mortgagors, was indebted on some individual transactions of his own; that L. 0. Woodruff & Co. were apprehensive that these individual creditors of Woodruff might interfere with the property of the firm; and that one object of giving the mortgage to the plaintiff was to protect the firm property against these individual creditors; and there was some evidence to the effect that the plaintiff was aware of these facts. But, on the other hand, the evidence was that the mortgage was demanded by the plaintiff by direction of a committee of its directors, because it had ascertained that a portion of the mortgaged property had been sold, and it required a new security for the indebtedness to it. Even if it did not know that the property of the firm was liable to be interfered with by individual creditors of Woodruff, it had a right to demand that it should be secured, so as to have a preference over such individual creditors; and securing such a preference was nota fraud. AJI tírese questions were properly submitted to the jury as questions of fact. The court charged the jury that it was for them to say whether the second mortgage was given for the purpose of securing the debt to the plaintiff, and nothing else; that, if given with the view of defrauding the creditors of L. 0. Woodruff & Co., it was fraudulent as matter of law.

The allegation that permission was given to the mortgagors to sell the mortgaged property was denied on the part of the plaintiff, and neither of the mortgagors testified to any arrangement or understanding allowing such sales. It does not distinctly appear what sales, if any, of mortgaged property were made after October 30, 1884, and before November 26th, or that the plaintiff had knowledge of them; for there was property in the store of L. C. Wood-ruff & Co. not covered by the mortgage. The court left the question to the jury, charging them that if they found that there was an agreement or understanding that the mortgagor might sell the mortgaged property, and use the proceeds as they saw fit, it invalidated the mortgage.

We think the court committed no error in refusing to nonsuit the plaintiff, and that the question was properly submitted to the jury.

Some exceptions were taken to the charge, which are now insisted upon:

1. The court was requested to charge that the possession of the bank by Richardson was not such a possession by the bank as to remove the case from under the statute.” The court refused to charge otherwise than it had already charged. Aside from any criticism of the form of this request, we think the charge asked for, although perhaps correct in substance as an abstract proposition, was quite unnecessary and irrelevant. It does not appear to have been claimed by the plaintiff that, by mean§ of the arrangement with Richardson, the mortgage was accompanied by an immediate, and followed by an actual and continued, change of possession of the mortgaged property so as to prevent the application of the statutory presumption of fraud arising from the want of such change of possession, or to relieve the plaintiff of the onus of establishing affirmatively the bona fides of the mortgage. On the contrary, the cause was tried on the theory that the mortgage was not accompanied by an immediate change of possession. The plaintiff assumed the burden of proving its bona fides, and the court charged the jury that it was incumbent upon the plaintiff to show that its debt was a just debt, and that the mortgage was made in good faith, and without any intent to defraud. This charge gave to the defendant all the benefit which he could have derived from a charge in express terms that no such immediate and actual change of possession had been proved as was required by the statute to reheve the plaintiff from the presumption of fraud, or from the onus of affirmatively proving the good faith of the transaction. The arrangement with Richardson was one of the circumstances of the case which the jury were permitted to consider, not on the question of an actual change of possession, but on this question of good faith. The court had charged on that subject that it was for the jury to say whether the arrangement with Richardson, “ if made, was made in good faith, and the intent was a change of possession and control, or, on the other hand, was a blind, as it had been called by counsel.” This charge was not excepted to. The court had in no part of the charge instructed the jury or even permitted them to find, that the arrangement with Richardson, whatever was its intent, was effectual to. bring about the actual change of possession required by the statute, but left it to the jury to determine its intent only as bearing upon the question of good faith; and when requested to charge, as an abstract proposition, that it was not such a possession by the bank as to remove the case from under the statute, it did not negative that proposition, but declined to charge further on the subject than had already been charged. In this refusal we find no error.

2. The court was requested to charge that if the jury found that the plaintiff had an agent in the store of the mortgagors during the time the chattel mortgage was in existence who knew the full facts of sales out of the mortgaged property, and that the mortgagors disposed of the proceeds of such sales for their own account, that the jury should find for the defendant. The court declined so to charge on the ground that the testimony did not warrant the statement of assumed facts. In this refusal we think the court was correct, as well for the reason assigned by it as for the further reason that the proposition applied to the first mortgage as well as to the second, and no distinction was made. Even if Richardson knew of sales during the running of the first mortgage, and could be presumed to have assented to them, that would not be a conclusive defense to the plaintiff’s claim under the second mortgage, and thus authorize a charge that the jury must find for the defendant. No authority was shown to Richardson, in either case, to consent to sales by the mortgagors, nor does it clearly appear that he was cognizant of them, or of the application of the proceeds. But at all events, even if the bank, through Richardson, had notice of sales by the mortgagors, and of the appropriation of the proceeds, such notice, at the most, was only evidence from which a previous agreement to permit such sales and appropriation might be inferred. It was not ground for a direction to the jury to find for the defendant. Gardner v. McEwen, 19 N. Y., 126; Potts v. Hart, 99 N. Y., 168, 173.

3. The same answer applies to the further request to the court to charge that, if the jury found that Richardson was the agent of the plaintiff to look after the mortgaged stock, they must find that the plaintiff agreed to the sales made of the stock during the time

These are all the exceptions to the charge which are insisted upon in the appellant’s points in this court.

There are some exceptions to rulings upon questions of evidence, but we are of opinion that they present no point which requires a reversal of the judgment. Certain questions relating to the intent or motives of the mortgagors in executing the first and second mortgages were asked of the officers of the mortgagee, and excluded. A party may be examined as to his own intentions and motives when a ‘question of fraudulent intent on his part is in issue, but he cannot be permitted to testify as to the motives or intent of another party.

Exception was also taken, and is now insisted upon, to the exclusion of testimony of Lauren 0. Woodruff, offered on his re-direct examination, for the purpose of showing that, the first mortgage was fraudulent. Woodruff had been called as a witness by the defendant, and had been examined for the purpose of showing fraud in the second mortgage. He detailed the circumstances and the conversations which led to its execution, and was examined as to his intentions in giving it, and as to his individual embarrassments. He was also examined, on his direct examination, with reference to the first mortgage, and stated that the second mortgage was given as a renewal of the first; that the president of the plaintiff claimed that a great part of the goods covered by the first mortgage had been sold, and new goods had come in, and it had ceased to be a security, and requested that a new inventory be taken, and a new mortgage executed, and that witness assented to the request. On his cross-examination on the part of the plaintiff, the witness was not.asked anything about the first mortgage, but only as to the second, and his motives for giving it. Being then re-called on the part of the defendant, Mr. Woodruff was asked whether the first mortgage was ever intended to be enforced. Objection being made to this question, the defendant’s counsel offered to prove that the first mortgage was fradulent. The court refused to permit the proof to be made by the witness then on the stand, stating to counsel that that was part of his direct examination. We think think this ruling was a proper exercise of the discretion of the court, and, further, that the question asked the witness was in itself improper, as he was not competent to testify to the intention of the plaintiff with respect to enforcing the mortgage. This, if material, must be shown by circumstances or the declarations of the party.

The judgment should be affirmed.

All concur.


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    Christian Tobias et al., Resp'ts, v. Lazarus Lissberger, App'lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Contract—"Promptly shipped.”
    Defendant purchased through brokers 100 tons of old iron vignol rails on terms in the sold note of " prompt shipment by sail from Europe.” The rails were shipped February 3d at Stettin, forty miles from the sea the ice on the river leading to the sea being two or three feet thick, and it remained solid until April, when the vessel made the usual voyage to New York. Rails of the kind described in the contract could have been obtained at any time in other European ports IMd, that the goods were not “promptly shipped” according to the terms of the contract, and that the trial court erred in directing a verdict for the plaintiffs
    2. Same.
    Plaintiffs claimed that as they ordered the rails at once, “if any delay thereafter occurred to the prejudice of the defendant he must look to the ship for his indemnity.” Held, that this position fails, as no privity existed between defendant and the vessel or its master, and that defendant’s contract involved not only a purpose to transport, but an expectation that transportation could commence, if not at once, certainly within a reasonable time.
    Appeal from, judgment of supreme court, general term, first department.

      William H. Page, Jr., for app’lt; Joseph A. Shoudy, for resp’ts.
   Danforth, J.

This action is for not accepting certain goods according to a contract made through brokers, in these words:

“New York: February 2, 1881.
“Sold to Mr. L. Lissberger, New York, for account Mess. 0. Tobias & Co., New York, about one hundred (100) tons old iron vignol rails for prompt shipment by sail from Europe, and for delivery on dock at the port of New York (dangers of the sea excepted), at twenty-eight (28) dollars per ton of 2,240 lbs. weight, as per United States weigh-master’s return. Terms of settlement as follows: Eighty (80) per cent cash, payable when rails are landed on dock, and balance payable on receipt of U. S. weigher’s certificate.
“Mann & Jones, Brokers.
“Accepted: L. Lissberger.”

The complaint, after setting out the agreement, alleges “that the plaintiffs promptly shipped by sail from Europe a lot of about 100 tons of such rails, and duly performed all the conditions of the contract on their part, and on the 14th of June, 1881, were ready and willing to deliver, and duly tendered ” the rails to the defendant, who refused to accept or pay for them; that upon notice to defendants they sold the rails on their account, and after applying the proceeds there remained due $345.15, for which, with interest from June 14, 1881, they ask judgment. The defendant by answer expressly admits the contract, and that on the fourteenth of June the plaintiffs were willing to deliver, and then tendered to him, the rails mentioned in the complaint, and a refusal on his part to accept, and the plaintiffs after notice sold the same. He denies, however, the other allegations in the complaint, and particularly denies that the goods were promptly shipped from Europe; and says that, on the contrary, there was delay of two months or thereabouts in such shipment, in consequence of which the goods were of less value in the market than they would have been if promptly shipped; that in this omission the plaintiffs failed to perform the contract on their part, and he therefore refused to accept the rails.

Upon the trial of these issues the plaintiffs read the deposition of the captain of the ship Brunn, to the effect that his vessel, then lying 'at Stettin, in Germany, was chartered on the 1st of January, 1881, for different kinds of goods for New York. Stettin was about forty miles from the sea, situated upon a river. That upon the 3d of February, 1881, he received, on board from the shippers, Ignatz Rosenthals, Wie & Co., 535 pieces of old rails, deliverable in New York on payment of freight. The bill of lading then given by him, and dated February 3, 1881, was produced by the plaintiffs, is to the same effect, and purports to be indorsed in blank, “Ignatz Rosenthals, Wie & Co.” It also appeared from the captain’s testimony that, when these rails were shipped, the river was frozen fast, the ice being two or three feet thick. It was then expected the ice would break up in March. But the river, which had become closed to navigation about the twentieth of January, remained so until second or third of April, on which last-named day the vessel sailed, and after a voyage of the ordinary length arrived in New York.' Usually the ice had broken up at Stettin late in February or early in March, but the winter of 1881 was of extraordinary severity. It was shown in evidence that rails of the kind described in the contract could have been obtained at any time in other European ports, where detention by ice was unknown,—ports even in Germany, as well as in France and England, and among others London and Liverpool. They seem to have been common in the markets, and to be procured easily.

It is stated by the respondent that the only question litigated at the trial was whether the goods were promptly shipped, according to the terms of the contract, and the record sustains that view. The trial judge, against the exception of the defendant, directed a verdict for the plaintiffs. Upon denying a new trial he was of opinion that “prompt shipment,” under the words of the contract, was within the shipment proven; saying also that “if the defendant wished to provide against a distant port in Europe, or any other delaying cause, it was in his power to make it a, part of the contract; ” and, failing to do this, says: “I think the point he makes cannot be sustained.” But he added: “I do not put the decision of the case on the grounds above stated, but upon the ground that after the contract, after notice of shipment, the defendant waited until after the arrival here before making the objection now made.” The general term discusses only the ground first stated by the trial judge, and by a divided court sustained his decision.

The minds of the parties met when the sold note was communicated to and accepted by the defendant. It is the only evidence of the contract, and upon its proper construction the rights of the plaintiffs depend. Their action is upon the theory that the contract imposed upon them the obligations of bringing the goods to New York, and there having them ready for delivery. They were therefore to furnish the rails either by selection from their own stock, or by purchase or other means; but, however obtained, the rails were to be got from Europe by sailing vessel at the expense and at the risk of the vendors. They were to ship the rails in such vessels as they chose, on such terms as they and the master could agree upon. They were to land them on the docks in New York, and at that moment only did any duty attach to the defendant, who was then to pay a certain proportion of the price. The vendors were to procure the weigh-master’s return, and on its receipt the balance became due. The plaintiffs, then, have sold a quantity of iron, and the question arises as to how the condition shall be performed which will enable them to make delivery, and entitle them to demand payment from the vendee. No time is specified; and, if there was nothing else in the contract, it would undoubtedly be the duty of the vendors to make delivery of the thing sold within a reasonable time; and, to determine whether the plaintiff had been able to do so, the facts and the circumstances attending the transaction would have to be considered. But although the contract specifies neither month nor day, nor duration of time within which or on which they must perform, it does specify the manner of doing the act which makes performance possible.

The contract provides for “ prompt shipment,” and it is this condition on which all other stipulations hang. So the plaintiffs understood it; and, as we have seen, they alleged, as a condition precedent to the right of action, that they “promptly shipped” the iron. This implies expedition, admits of less delay than would be permitted under a covenant to act merely within a reasonable time, and in effect the plaintiffs interpret it as meaning “directly” or “at once.” Such, indeed, was their conduct. The contract was made in New York on the 2d of February, 1881, and the plaintiffs rely upon a bill of lading showing that on the very next day, at Stettin, iron rails answering in description to those named in the contract were put on board a vessel chartered for New York. Therefore the respondents’ contention is that the whole condition is satisfied; and, “if any delay thereafter occurred to the prejudice of the defendant, he must look to the ship for his indemnity.” The last position fails when we see that no privity existed between the defendant and the vessel or its master, and that his only contract relation was with the plaintiffs. The sole object of prompt shipment was to secure a speedy arrival for delivery in New York. Until then the goods were at plaintiffs’ risk, and only then could the defendant’s liability attach. Before that event happened there was to be neither transfer of title nor transfer of possession. It is quite unimportant to inquire how it might be as between the master of the vessel-and the plaintiff or the shipper, one of whom may be assumed to be the owner, and the other, by virtue at least of the bill of lading, entitled to possession.

As to the plaintiffs in the case before us, it is more reasonable to construe the condition of prompt shipment as a precedent to delivery, and- so relating to the actual commencement of the voyage that the known unnavigable condition of the river could furnish no excuse for the delay. The defendant was entitled to such timely delivery as would follow an effective shipment; in other words, to an exact performance by the plaintiffs of their contract to ship and deliver—not two things separable in their nature, but two steps to a single end. That involves not only a purpose to transport, but an expectation that transportation would commence, if not at once, certainly within a reasonable time. Shipment cannot be said to have been made from Europe when the port selected had no passage-way or outlet. Nor can it be fairly argued, even, that the iron was shipped “ for delivery in New York,” if it was apparent to the shipper that the vessel could not leave the docks where it took in freight. Something more than shipment was bargained for, viz., prompt shipment; and the delivery was to be within such time as. dangers of the sea only excepted, might reasonably follow. Nothing less could have been in the minds of the parties than expedition, or immediate and effective or beneficial shipment as a step towards delivery. Payment was postponed to delivery, both to be made in New York. The sale was for shipment from Europe, altogether at the vendor’s expense and risk, and no exception was provided for save “dangers of the sea,” among which a certain and safe confinement in port is not included.

In Duncan v. Topham (8 C. B., 225), the order was for certain goods to be put on board directly. The complaint alleged an order for goods to be delivered within a reasonable time, and the plaintiff failed in his action because the proof did not support the declaration, it being held that ‘ ‘ a reasonable time ” was a more protracted delay than “ directly.” The contract here goes further. “Prompt” is synonymous with “quick,” “sudden,” “precipitate,” Indeed, one who is ready is said to be prepared at the moment; one who is prompt is said to be prepared beforehand. Such represents the condition of the plaintiffs. Their immediate loading of the vessel shows that they were prepared beforehand; but, if their construction of the contract is correct, the qualifying word might as well be one of postponement and delay. The fault was with the plaintiffs. It was optional with them to ship from any port in Europe. If, at the time of shipment, the plaintiffs or their agents knew, or might have known, that detention and delay at the place of shipment, and before ground could be broken for the voyage, were unavoidable and to be expected, they must have also known that the delivery could not be made as contracted for, and the subsequent tender was too late. It was not a “prompt shipment,” and the defendant was not bound to receive the cargo..

It is now contended, however, by the plaintiff, that the appellant is estopped from denying that the rails were shipped in accordance with the terms of the contract. This might, under some circumstances, furnish a question for the jury. It cannot be said, as matter of law, that those now relied on have that effect. It appears that the usual length of a voyage from Stettin to New York is forty-nine days. On the first of March the defendant was notified by the plaintiffs that the 100 tons of rails sold to him “are shipped * * * from Stettin,” but the date of sailing was not given; and, in answer to defendant’s inquiry concerning it, the plaintiffs replied they were not informed. On the nineteenth of March, they told him the bill of lading was ■dated February third, but that they had “ no date of the vessel’s sailing.” On the fourth of May they wrote, “according to New York Maritime Register, the Ger. Bk. Ferdinand Brumm, with 100 tons rails sold to you, sailed from Stettin, April sixth, for New York.” The vessel arrived at New York, and on the fourteenth of June, when tendered by the plaintiffs, the defendant in writing refused to receive them, saying the rails were not shipped according to contract We find nothing in these letters which would authorize a court to say that that the defendant had waived performance by the plaintiff. There is no evidence that he knew the circumstances attending or causing the delay; none that he was informed that the vessel, when loaded, was ice-bound, nor of its detention from that cause. Moreover, the sole act relied upon in the complaint as a breach of _ the contract on defendant’s part—a refusal to accept the rails tendered—took place, as is there alleged, and is admitted in the answer, on the fourteenth of June. Then the plaintiffs say they were ready and willing to deliver, and duly tendered the goods, and the defendant refused to receive them. If I am right in my view of the contract he was under no obligation to do so.

I have not overlooked the argument of the plaintiffs by which our attention is directed to the difference between “shipment” and “sailing,” nor failed to examine the definitions and decisions upon which the argument is founded. The context of the cases cited, however, prevent the application of the decisions to the one before us; and, while the terms are no doubt well defined, there is no definition nor adjudged case which implies that an agreement to deliver goods after prompt shipment is satisfied by merely placing them on board a vessel, which, although it should weigh anchor, or cast off moorings, and make other preparations to depart, could not for a considerable period of time—in this case exceeding the customary length of the intended voyage—leave the spot where the cargo was received. Such a shipment would be colorable and deceptive. If it answered the letter of the contract, it defeated its purpose. It would not in fact be the inception of the voyage, and the burden of showing a bona fide shipment would not be sustained. In all the cases referred to by the respondent, the obligation to ship at or within a certain period was held to be unperformed unless the ship might also sail at or within the time stated. Nothing less would be beneficial to. the purchaser. The evident object of expressing the time of shipment, as declared in those cases, was to provide that the article purchased should come forward at such time as would, in the opinion of the purchaser, make the venture profitable, or, as to time of arrival or payment, suit his convenience. Bowes v. Shand, 2 App. Cas., 455; Alexander v. Vanderzee, L. R., 7 C. P., 530.

Another class of cases, also cited by the respondent, shows that when goods are sold, and are to be delivered on board of vessels, either provided by the purchaser or by his appointment, putting on board is a good shipment, whether the vessel is in condition or is expected to sail or not. Fisher v. Minot, 10 Gray, 260; Newhall v. Vargas, 13 Me., 105. The principle on which these cases were decided is not involved here, and the others do not lessen the strength of the appellant’s case.

The time and manner and place of shipment might, indeed, have been accepted by tne defendant as in compliance with the contract; and whether it was or not, and whether with full knowledge of the facts there was on his part a waiver of the strict performance of the condition on the plaintiff’s part, were questions for the jury. The trial court, therefore, erred in directing a verdict for the plaintiffs. It follows that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Rtjger, Ch. J., dissenting.