text:
    Josephine F. Clason, Resp’t, v. John Kehoe et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Ejectment — Appeal bond — Liability op sureties.
    The obtaining of a new trial in ejectment by the defendant, by mere payment of costs, under the statute, has the effect of discharging the sureties on appeal from the judgment from all liability, except for" the value of the use and occupation of the premises during the pendency of the appeal, in the event that the person whose judgment is thus secured finally succeeds.
    Motion for new trial on exceptions, ordered to be heard at general term in the first instance.

      George W. Stephens, for pl’ff; Isaac N. Miller, for def’ts.
   O’Brien, J.

— -This action is upon an undertaking given on an appeal to the general term from a judgment entered on a verdict in favor of the plaintiff in an action of ejectment. The undertaking recites that the defendants “jointly and severally undertake that the appellant will pay all costs and damages which may he awarded against said appellant on said appeal, not exceeding five hundred dollars ; and do also undertake that if the said judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which judgment is affirmed, and the value of the use and occupation, and for waste, not exceeding fifteen hundred dollars.” On appeal to the general term, the judgment, so far as it included a recovery of mesne profits, was reversed, but otherwise affirmed. Plaintiff then appealed to the court of appeals, where the judgment of the general term, so far as it modified the original judgment, was reversed, and that of the circuit court affirmed. Thereupon, this action was commenced against the sureties on the undertaking, and after its commencement the defendant in the ■original action paid the costs included in the judgment, including all the costs of the appeal; and an order was thereupon entered vacating the judgments of the circuit conrt and of the court of appeals, and an order for a new trial was made, under the statute. On the new trial plaintiff again recovered substantially the same rate of damages as was allowed in the original recovery, including damages to the amount of $1,200 for the use of the premises during the pendence of the appeal.

The question presented, therefore, is whether or not the obtaining of a new trial by the defendant in ejectment, by the mere payment of costs under the statute, will have the effect of discharging the sureties on appeal from all liability. Section 1309 of the Code of Civil Procedure provides that no action shall be maintained upon an undertaking until ten' days have expired since the service upon the attorney for the appellant of a written notice of the entry of judgment affirming the judgment appealed from. It is conceded that this action was commenced before the ten days so provided for had expired, but we do not regard this as a good objection, because not raised below, and not available for the first time upon appeal. It is insisted, however, that, even had notice been given, the action could not be maintained, because the defendant in the ejectment suit, for whom these defendants were sureties, having paid the costs and damages as provided in section 1525 of the Code of Civil Procedure, and obtained an Order vacating the judgment, and having taken a new trial as allowed by statute, the sureties were not liable; and this, notwithstanding the fact that upon the new trial a judgment was obtained for substantially the same amount as in the original .action, and also for the use and occupation of the premises during the time the appeal was pending. Singular as it may appear, we have been referred to no text book or case in which the precise question here presented has been discussed or decided, and we are, therefore, left to determine it as an original question. As such, we think it should be disposed of in accordance with the agreement of the parties, which is to be found in the terms of the undertaking. The general principle upon which sureties are held liable is that they are only liable according to the terms of their obligation, and that whenever the principal is released they are released. Here the sureties specifically undertook to pay the judgment of the 21st of June, 1890, and they were affected by the judgment of the court of appeals only so far as it reinstated that judgment. Being thus sureties for a specific judgment, we think that whenever, or by whatever means, that judgment was vacated, their liability ceased. The contention that, having once become sureties for the defendant, they were sureties in the action, and, therefore, liable if the judgment was against the defendant finally, is without force. These defendants were sureties to secure a specific judgment, and were released when that judgment was vacated. It is clear that after paying the costs, and securing a vacation of the judgment and anew trial, the original judgment could not be enforced against the principal; and it seems reasonably certain that if the sureties had paid that judgment, and the principal subsequently had it vacated, such sureties could not recover against their principal, for the reason that “ where the principal is hot liable the surety cannot recover from the principal the money which he has paid." 24 Am. & Eng. Enc. Law, p. 791, and cases cited. In the new judgment no reference was made to the prior óne, nor could there have been, because the statute permitted the payment of the costs and damages, and, in an action of this kind, entitled the party to a new trial. It may be a hardship that one who has obtained a judgment which has been secured by an undertaking on appeal is forced to lose such security because the statute permits the judgment to be vacated, upon certain conditions, and grants a new trial; but such hardship is to be obviated either by statute or by a provision in the undertaking which will provide against such a contingency, and hold the sureties in the event that the person whose judgment is thus secured finally succeeds. We think, however, that under the terms of the undertaking the sureties are liable for the value of the use and occupation, and for waste, not exoeeding $1,500; and where, as here, it has been finally decided and is conceded by the stipulation of the parties, that such value amounts to $1,200, it is but right that the sureties should pay that amount, in accordance with their agreement.

The exception to the direction of a verdict for'thefull amount should accordingly be sustained, and the motion for a new trial granted, with costs to defendants, to abide the event.

Ail concur.


source: Caselaw Access Project

author: O’Brien, J. Van Brunt, P. J.

license: Public Domain

text:
    Abbott-Downing Company, Resp’t, v. Eberhard Faber, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

      1. Deposition — Examination befobe tbial.
    An examination of a person, not a party to the action, will not be granted, unless the moving papers present facts from which it can be seen, not only that it is material and necessary, but that there are reasons why: the testimony should be given prior to, rather than at, the trial.
    2. Same — Pbivileqe.
    Where it is not shown that there is any fact which ihe witness can testify to, except such as will be privileged, an order for his examination will be refused.
    Appeal from an order denying a motion to vacate an order for the examination of a witness before trial.

      Peter P. Pope, for app’lt; C. E. Souther, for resp’t.
   O’Brien, J.

— The action now at issue was brought to charge the defendant with the statutory liability for filing a false report, in 1889, while a director of Piercy’s Express Company. The witness sought to be examined is not a party to the action, but it is stated that his testimony is material and necessary, for the reasons, among others, that he—

“ Was at the time of the * * * transactions the secretary and treasurer of said express company, and a director thereof, who united with said defendant in the making and filing of its-said annual report. * * * Said plaintiff desires to examine said Huber before tz-ial as to all and every of the material allegations in said complaint and answer, and deems it necessary so to do in advance of the trial, for the purpose of obtaining from him, or from the books of said express company, admissions or other evidence of facts in issue; and I am imformed and believe that a subpoena duces tecum to him for the production of said books at the trial would not give said plaintiff sufficient opportunity to examine the same, or him in respect to the same, and to pursue inquiries which may be suggested by such examination, or to investigate or verify information afforded thereby, in respect of matters hereinbefore mentioned, which, as I am informed and verily believe, are pertinent to said facts.”

Under our procedure, witnesses should be examined upon the trial ; and it is only under special conditions arising, and showing the necessity therefor, that the court will vary the practice. It has been many times held that a mere statement that the examination is material and necessary is not sufficient, but that facts should be presented to the judge from which it can be seen, not only that it is material and necessary, but that there are reasons why the testimony should be given prior to, rather that at, the trial. The whole tenor of section 872 of the Code of Civil Procedure, under which alone an examination of a witness not a party can be obtained, looks to the taking and perpetuation of testimony which, if not secured before trial, might be lost, or otherwise not available upon such trial. The section of the Code therefore sets forth with considerable particularity what the affidavit must contain upon which the order shall be based, and rule 83 of the general rules of practice requires that “ the affidavits shall specify the facts and circumstances which show * * * that the examination of the person is material and necessary." It is too vague and general to base such an application merely, as here, upon the expression of a 'desire to examine the witness “ as to all and every of the material allegations in said complaint, and answer,” for the papers used upon the motion show that most of the facts which the plaintiff desires to prove by the witness are within its own knowledge. Thus, the fact that he was the secretary and treasurer and a director of the company in 1889, and that he joined with the defendant in making and filing the report, that he furnished a statement of the condition of the company, and that the plaintiff was unable to find on record the chattel mortgage, are within the plaintiff’s knowledge. The real purpose of the examination of this witness was to obtain from him, by the aid of the book of the express company, proof of the falsity of the report. It is not shown, however, that the witness sought to be examined is now the secretary and treasurer, or a director, or that he has any interest in or relation to the company, or that the books are within his possession, or under his control. And the reason for the examination is furnished by the argument of the respondent, who says that any answer that the witness would make “ would probably require him to examine the books to refresh his recollection of the facts, and take more time than would be granted upon the trial, even if the books were at hand ; and, if not, their absence would be the excuse for not answering at all.” This not being an order for the examination and inspection of the books and papers of a party, under section 803 of the Code of Civil Procedure, but, as already stated, for the examination of a person not a party to the action, who, concededly, could give little of the desired information without reference to books which he neither has nor controls, and it not being stated or shown that he has any information exclusive of what may be contained in the books of the express company, we do not see upon what theory the right to this examination should have been accorded. The affidavit, moreover, states that the witness was a director of the express company, and joined with the defendant in making the alleged false report. If so, undoubtedly he would be privileged from answering any questions upon the examination which might tend to expose him to a penalty by reason of the making of such report; and, while this court has held that the fact that one is privileged from testifying does nut prevent the making of an order for his examination — the proper practice requiring that where it is necessary, and a sufficient showing is made, the examination should be •ordered, leaving it until the person is actually under examination to claim the privilege — nevertheless, where it is not shown that there is any fact which the witness could testify to, except such as would be privileged, it would be useless to make the order for the examination.

Considering, then the nature and character of the action, the attitude which the witness sought to be examined occupies, and the vague and indefinite way in which what is sought of this witness is stated, coupled with the clear inference that such information is in books of the express company, and that, as to other knowledge possessed by him, he would be privileged from testifying, we think, upon the merits, and for failure to comply with the Code and rules of practice,, that the motion to vacate the order should have been granted.

Order accordingly reversed, with $10 costs and disbursements, but with leave to • plaintiff, upon payment thereof, to renew its application.

Van Brunt, P. J.

— I concur in the result. There are no circumstances shown which make it necessary to examine the proposed witness before trial, to perpetuate his evidence.

Parker, J., concurs.


author: O’Brien, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Elizabeth S. Baldwin, as Executor, etc., of George R. Baldwin, Deceased.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Reverence — Judgment. •
    Where an inconsistency between the findings of fact and conclusions of law as to the person against whom the referee reported, appears in the report, and the conclusion of law finds that plaintiffs “ are entitled to judgment against the defendant,” but does not state whether her liability is individual or as executrix, a judgment entered thereon by the clerk is not merely irregular but void.
    2. Same — When question raised.
    Where the defect, apparent upon the face of the judgment-roll, shows that the judgment itself is a nullity, such question can be raised at any time when the judgment is sought to be enforced.
    Appeal from a decree, directing the payment of a certain sum of money to the executors of Elizabeth Carter, deceased.

      Isaac N. Miller, for app’lt; George W. Stevens, for resp’ts.
   O’Brien, J.

— This proceeding was instituted by respondents, claiming to be judgment creditors of Elizabeth S. Baldwin, as executrix of George R. Baldwin, deceased, to compel her to render an account of her proceedings as such executrix. In the account filed by her she disputed that the respondents had recovered any judgment against her, but by the decree appealed from it was adjudged that they were creditors, and entitled to receive from her as executrix the amount of a certain judgment, the validity of which she had assailed. The question presented, therefore, upon this appeal relates to the validity of such judgment, which was received in evidence upon the accounting, and, if admissible, properly sustained the claim of the respondents as judgment creditors.

As to such judgment it appears that, in a suit brought by the respondents against Elizabeth S. Baldwin as executrix, the matter was referred to a referee to hear and determine, and he thereafter filed his report, wherein he found, as a conclusion of law “that the plaintiffs as executors of the last will and testament of Elizabeth Carter, deceased, are entitled to judgment against the defendant, Elizabeth S. Baldwin, as of August 6, 1889, the date of this report, for the sum of $2,186.72, besides the costs of this action." Upon this report respondents entered a judgment against Elizabeth S. Baldwin as executrix. From this judgment defendant appealed to this general term, and as one of the objections insisted that there was no direction that it be entered, as required by section 1022 of the Code of Civil Procedure, and that the clerk, in entering the judgment in form as he did acted without authority. For the reason undoubtedly that one could not appeal from a judgment as regular and at the same time raise a question of irregularity, this court dismissed the appeal “without prejudice to the right of the appellant t) appeal from any judgment herein which may hereafter be entered." The report of the referee was never amended, nor was anything done by either party to correct the error, and upon the judgment being introduced on the accounting it was objected to by the executrix on the ground that it was unauthorized and void, because entered by the clerk without authority, and in the absence of any direction by the referee, as required by section 1022 of the tiode of Civil Procedure, and for the reason that the referee reported that the plaintiffs in that action was entitled to judgment against the defendant Elizabeth S. Baldwin, whereas the judgment entered was against Elizabeth S. Baldwin as executrix. Clasan v. Baldwin, 36 St. Rep. 982 Notwithstanding the intimation that the judgment thus entered was irregular and unauthorized, as stated, nothing was done to correct the defect in its entry, and the judgment roll was admitted in evidence on the accounting, upon the authority of two cases (Devlin v. Mayor, etc., 27 Abb. N. C. 311; 37 St. Rep. 508 ; affirmed by Hinds v. Kellogg, 133 N. Y. 536), decided since the decision of Clason v. Baldwin, supra, in which, it is asserted, a different view wa's taken by the court of appeals.

In Devlin v. Mayor, etc., although the report of the referee did not determine the question as to the right of the defendants between themselves, and therefore did not comply with Code Civ. Proc. § 1022, by directing the judgment to be entered, this was held not to affect the judgment which was subsequently entered, for the following reasons, stated in the opinion of the special term :

“The parties in suit have stipulated as to the respective amounts to be paid to each person. The corporation, counsel * * * made a motion to compel the entry of judgment on such report. The form of this judgment was agreed upon, and the order settled. I think it is now too late for the counsel to the corporation to raise the question presented, and that the defendant the mayor must be regarded as having waived any irregularity there may have been in the order or report of the referee.”

And at the general term it was said:

“The report, in concise and unmistakable terms, settled the form and amount of the several judgments to be entered in favor of the plaintiff and the defendants, other than the mayor, etc., of New York, and this is a sufficient compliance with the requirements of section 1022 of the Code of Civil Procedure. ”

In this opinion the case in the court of common pleas of Hinds v. Kellogg, 37 St. Rep. 356, is cited and relied upon as an authority. In that case (Hinds v. Kellogg) it was held that the requirement of section 1022 of the Code “is satisfied if, from the whole or a part of the report, the particular form and terms of the judgment to which the successful party is entitled can be ascertained.” This case was affirmed by the court of, appeals (133 N. Y. 536), and is therefore, upon the point decided, a controlling authority. There “the referee’s conclusion of law in concise and unambiguous terms states the amount of recovery to which the plaintiff is held to be entitled, and judgment thereupon was properly entered.”

In the case under consideration, while the amount to which the plaintiff was entitled is definitely fixed, there is 'an inconsistency between the findings of fact and the conclusion of law as to the person against whom the referee reports, and the precise question here is, could the clerk, upon such a report, and in the absence of any direction as to the judgment to be entered, disregard the referee’s conclusion that the judgment was against the defendant individually and, as was here done, enter it against her as executrix? By section 1228 of the Code it is provided that “judgment upon such a report, or upon the decision of the court upon the trial of the whole issue of fact without a jury, may be entered by the clerk as directed therein upon filing the decision or report.” This is undoubted authority in a proper case for the entry of a judgment by the clerk without application to the court, but there seems to be neither statutory nor other authority which confers upon the clerk the right to exercise judicial functions in determining the one against whom the judgment is fo be entered when in the report itself there is an inconsistency or" a doubt as to the person against whom it should be entered.

Upon examination of the entire report, it is evident that the clerk entered it against the proper person, but that he did it without authority is equally clear; and the question presented is, whether that was a nullity or an irregularity. This general term inclined to the view that it. was a nullity, as shown by the opinion upon the former appeal; but the two cases referred to of Devlin v Mayor, and Hinds v. Kellogg, supra, both of which have been affirmed in the court of appeals, seemingly support the view that a judgment so entered is an irregularity merely, and does not render the judgment itself void. And in the opinion of the general term in Hinds v. Kellogg authorities are cited in support of two propositions: (1) That an omission to apply to the court for judgment, where such application is necessary to the entry of judgment, is an irregularity only, and does not render the judgment void ; (2) that so long as the judgment is permitted to stand its validity is in no wise affected or impaired because of an irregularity in the entry thereof.

While the cases cited are undoubted authority for the proposition that the mere absence in the report of a direction as to the judgment to be entered does not affect the validity of the judgment which has been entered in accordance with what from the report is clearly shown to have been the determination or decision of the referee, this is a very different thing from saying that, where an inconsistency appears in the report as to which of two persons the referee has decided against, such conflict can be reconciled or adjusted by the clerk in accordance with his notions of what may have been the conclusion to which the referee should have arrived, and of the form of judgment which he should have instructed him to enter'. In one case the entering of a judgment upon a report in all other respects clear and unambiguous, and merely in the absence of a direction, may not involve the exercise of any judicial power; but the reconciling of differences or inconsistencies in a referee’s report necessarily involves such exercise, and as we find neither statutory nor other authority for it, it would seem that the attempt to exercise such power would be more than an irregularity, because unauthorized, and as a consequence a judgment so entered would be invalid and void. If it is within the province of the clerk in a case like this, where the conclusion of the referee reads that one is individually indebted to another, to disregard this because of something • else in the report, and enter a judgment against such person as an executrix, then we do not see why the clerk would not be authorized, in a case where the referee in terms has decided as against one person, to say that the referee has made a mistake, and thereupon, without direction from the court or referee, to enter judgment against an entirely different person, if in his opinion that was the logical conclusion to draw from a reading of the entire report. We think that no such duty devolves upon the clerk, and that, should he assume any such functions, his act in so doing is unauthorized and void.

When the judgment roll was presented in evidence, this defect appeared upon the face of the record, and the objection to it was properly taken ; and it is no answer to say that because the judgment was permitted to stand its validity could not thereafter be .assailed, because it is only in respect to irregularities or informalities in the entry that it is to be regarded as valid while it stands, but it has no such binding force when the defect apparent upon the face of the judgment roll shows that the judgment itself is a nullity, because that question can be raised at any time when the judgment is sought to be enforced. As said in People ex rel. Brush v. Brown, 103 N. Y. 684; 4 St. Rep. 271.

“It is in the discretion of the court in which the judgment is. entered to set it aside or to leave the party to set up its invalidity when an attempt is made to enforce it."

See, also, Foote v. Lathrop, 41 N. Y. 358; Abram French Co. v. Marx, 63 St. Rep. 407. Here, then, the invalidity of the judgment appearing upon the face of the record, the question could be raised whenever the judgment was offered in evidence, It having been so offered, and, against objection, having been admitted, this was error which lies at the basis of the surrogate’s decree. The decree, therefore, should be reversed, with costs.

All concur.


author: Ingraham, J.

text:
    Theresa Maurhoffer, Pl’ff, v. Jacob A. Mittnacht, Def’t.

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    1. Moetgages — Bedemption—Mortgagee in possession.
    The statute of limitations commences to run against an action to redeem when the mortgagee enters into possession claiming the entire fee ; and, in such case, the mortgagor must commence his action to redeem within ten years from the time the mortgagee enters into possession.
    2. Same.
    A person, receiving an assignment of a mortgage and then entering imopossession of the mortgaged premises, does not enter into such possession adversely to the mortgagor, unless he at the time qualifies his taking possession by some visible and notorious act in' hostility to the title of the mortgagor, so as to show that such possession is adverse to the mortgagor, and not as mortgagee.
    Action to redeem land from a mortgage.

      A. H. Alker, for pl’ff; H. M. Gescheidt and H. H. Frost, Jr., for def’t.
   Ingraham, J.

— The action is commenced by plaintiff, claiming to be the owner of a lot of. land, against the defendant, alleged to-be a mortgagee in possession, to redeem from the mortgagee. The mortgage was executed on February 14, 1867, and the property was conveyed by the mortgagor to this plaintiff by a deed dated April 9, Í868, subject to the mortgage. The mortgage having-been assigned to Catherine McCowu and Bridget McOown on April 7, 1870, an action to foreclose the mortgage was commenced ; and on May 21, 1870, the MeCowns assigned the mortgage to George M. Mittnacht, and the foreclosure action was abandoned. Immediately thereafter, it would appear, Mittnacht entered into possession of the mortgaged premises, and remained in such possession until 1874, when he assigned the mortgage to this defendant by an assignment dated June 16, 1874, which was duly recorded ; and under that assignment the defendant continued in possession of the mortgaged premises down to the commencement, of this action.

The sole question to be determined is whether this right to redeem is barred by the statute of limitations. In England the rule seems to have been that the action is too late unless brought, within twenty years after the mortgagee entered into possession, unless some act of his is shown which treated the mortgage as a mortgage. See Holde v. Healey, 1 Yes. & B. 538 ; Grubb v. Wood-house, Freem. 187. In this state I cannot find that this precise question has been passed upon. The exact relation of a mortgagee in possession to the title of the mortgaged premises has, however, been much discussed, and many able judges have differed. It seems to have been finally settled, however, that a mortgagee in possession is not the owner of the legal title to the land covered by the mortgage. In Trimm, v. Marsh, 54 N. Y. 599, it was held that the interest of a mortgagor in mortgaged premises in possession of a mortgagee was real estate that could be levied upon and sold under an execution, and that, upon a conveyance by the-sheriff under such a sale to the mortgagee of the right, title, and interest of the mortgagor in and to the mortgaged property, the. legal and equitable title to the property becomes vested in the mortgagee. And Earl, C., thus described the relation of the mortgagee to the property:

“Before taking possession the mortgagee had a mere lien upon the real estate pledged for the security of his debt. After possession he has in his possession the property pledged as his security, the title remaining as it was before. The mortgagor’s title is still a legal one, with all the incidents of a legal title, subject to the pledge, and the mortgagee’s interest is still a mere debt secured by the pledge. If the mortgagee should die in possession, the debt would still go to his personal representatives to be administered as personal estate, and the mortgagor’s title would go to his heirs. Payment, or even tender, would destroy the mortgagee’s right to retain possession, and would enable the mortgagor to-maintain ejectment to recover possession. The mortgagee in such case, so far from having any title, holds the land as the land of the mortgagor and is liable to account to him for the rents and profits.”

Commissioner Reynolds also delivered an opinion concurring with Commissioner Earl, and this decision was in the face of a strong-dissenting opinion from Commissioner Gray. The defendant, therefore, has not a legal title to the property. That is still vested in the plaintiff. A mortgagee in possession, however, is entitled to maintain possession of the mortgaged premises as against the mortgagor, and the aid of equity is necessary for the plaintiff to remove the lien of the mortgage before she can recover possession, As was intimated in Trimm v. Marsh, supra, the mortgagor has the right to pay the amount due upon the mortgage when that is. known or can be ascertained without the aid of a court of equity, or the mortgagor can come into a court of equity and ask that the amount due on the mortgage be ascertained, and when paid he be adjudged to be entitled to the mortgaged premises. The question as to when the statute commenced to run When the mortgagee entered into possession claiming to own the fee has also been settled. The case of Miner v. Beekman, 50 N. Y. 337, was an action to redeem where there had been an attempted foreclosure of the mortgaged premises, which was without jurisdiction as against the owner of the fee, but where there had been a sale in "the action and the purchaser had entered into possession of the premises under the deed, claiming title to the property. It was held in that case that such purchaser held adversely to the mortgagor ; that the cause of action accrued when such purchaser went into possession under the deed; and that, under the Code •of Procedure then in force, a right of action to redeem was barred after ten years from the entry of the mortgagee into possession under the deed. A distinction is there taken between a case where a mortgagee enters into possession under an independent conveyance, which, upon its face, conveys the entire title to the property, and where a mortgagee enters into possession avowedly as mortgagee, making no claim except that of a mortgagee-in possession. And Grover, J, in delivering the opinion of the court in that case, in which all the judges concurred, said :

“ The statute, I think, would not then commence running, had the defendants, or their grantor, entered and continued in possession avowedly as mortgagees, and would not run while they so held, for the reason that it is a continuing right of the owner to pay off and discharge a mortgage, and by so doing regain possession of the land. But, so far as appears in this case, neither the defendants nor their grantor so entered and held the possession, but, on the contrary, claimed the entire fee, under deeds in fee, commencing with the deeds of a master in chancery, given upon a sale made in an action for the foreclosure of the mortgage in question to the purchaser."

And in the case of Hubbell v. Sibley, 50 N. Y. 470, the same principle was restated, and the same distinction taken between a case in which a mortgagee enters into possession of property as mortgagee and where he enters into possession under a conveyance purporting to convey to him the absolute title to the premises. Thus, prior to the enactment of section 379 of the Code of Civil Procedure, hereafter referred to, it seems to have been held in this state that the statute of limitations would never run against an action to redeem while a mortgagee held possession of premises avowedly as mortgagee, but would commence to run when the mortgagee entered into possession claiming the entire fee ; and that the mortgagor must commence his action to redeem within ten years from the time that the mortgagee entered into possession, claiming the entire fee under a deed which purported to convey the fee to him. That being the law, section 379 of the -Code of Civil Procedure went into effect.

Section 379. “ An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, •against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for twenty years after the breach of a condition of the mortgage, or the nonfulfillment of a covenant therein contained."

The language is general, and is only limited by the provision of the section, that such an action may be maintained unless the mortgagee has “ continuously maintained an adverse possession of the mortgaged premises for twenty years after the breach of a condition of the mortgage.” This action can, therefore, be maintained, unless it is shown that this qualification of the right contained in section 379 exists.

George M. Mittnacht, received an assignment of the mortgage on May 21, 1870, and under that assignment he went into possession. No deed is produced or proved giving to him any other interest or title in the property except as mortgagee. There is evidence of some conversation between him and the owner of the property prior to his acquiring the mortgage, but I do not think that anything that was said qualifies the interest or title of the mortgagee in the premises, or the possession which he thus acquired. He continued in such possession for four years, when he transferred the possession to the defendant, and with that transfer he executed, not a conveyance of the property, not a deed which purported to convey the fee of the property, but simply an assignment of the mortgage; and under that assignment of the mortgage to the defendant the defendant went into possession, and has continued in such possession. That assignment was dated and recorded in 1874, and less than twenty years prior to the commencement of this action. It seems to me clear that a person receiving an assignment of a mortgage, as this defendant did in 1874, and then entering into possession of the mortgaged premises, cannot be said to have entered into such possession adversely to the mortgagor unless he at the same time qualifies his taking possession by some visible and notorious act in hostility to the title of the mortgagor showing that such possession is adverse to the mortgagor, and not as mortgagee. In Borst v. Boyd, 3 Sandf. Ch. 501, it was held that such an assignment was decisive that the mortgage was redeemable at its date, and that, although the mortgagor was not a party to the assignment, he could avail himself of the evidence which they offered of the nature of the mortgagee’s interest and claim, and in that case the assistant vice-chancellor said: “ A mortgagee may work a disseisin, but I apprehend, within the period requisite for barring redemption, that can only be done by some direct, open and unequivocal act in hostility to the title of the mortgagor.” It is not necessary in this action to determine upon whom the burden rests of showing the relation of the mortgagee in possession to the property. Whether twenty years’ possession makes it necessary for the mortgagor to show some act of the mortgagee which recognized the existence of the mortgage, or whether the possession of the mortgage was presumed to continue as mortgagee until either by the existence of a deed or by some act the possession became adverse and in hostility to the title of the mortgagor, in this case, taking the assignment of the mortgage and entering into possessor! under it within twenty 3'ears of the commencement of the action was a distinct recognizance of the possession of the defendant. It seems to me, therefore, that it has has been shown that neither the defendant nor his predecessors have continuously maintained an adverse possession of the mortgaged premises for twenty years before the commencement of this action, and the plaintiff is, therefore, entitled to judgment.

Judgment for plaintiff.


text:
    Missouri, Kansas and Texas Railway Company, Pl’ff; v. Union Trust Company of New York et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Mortgage — Sinking fund clause.
    The mortgagor, under a provision in his mortgage that he should annually pay to the mortgagee, as a sinking fund, a certain amount, and that the latter should thereupon designate for redemption, by lot, an amount of the bonds secured equal to the accumulation in the sinking fund, is not entitled to redeem all the outstanding bonds at a time when such annual payments into the sinking fund, it' made, would not have been sufficient to redeem all the bonds originally secured, though he has bought up such a number of the bonds that those still outstanding amount to less than the sum he is entitled to pay into the sinking fund.
    Controversy submitted, without action, on an agreed statement of facts.

      Simon Sterne, for pl’ff; Wheeler H. Peckham, for def’t Union Trust Co.; Butler, Stillman & Hubbard, for def’t Central Trust Co.
   O’Brien, J.

— The question presented is one relating to the construction of the sinking fund provision in a mortgage made by the Tebo & Neosho Railroad Compan,y as party of the first part, and the Union Trust Company of the city of New York, party of the second part, under date of June 1, 1870. The sinking fund provision is as follows:

“Fifth. The party of the first part, in consideration aforesaid, further covenants and agrees with the party of the second part and its successors in this trust that the said party of the first part, its successors and assigns, will on the first day of June, A. D. 1873, and on the first day of June annually thereafter, pay to the party of the second part, or its successors as aforesaid, as a sinking fund, in gold coin of the United States of America, a sum equal to one per cent, of the aggregate principal of the bonds secured hereby, together with interest thereon at the rate of seven per cent, per annum in gold coin as aforesaid, by the operation of which sinking fund the whole principal of said bonds will be redeemed in thirty years from the date of the first annual payment And it is mutually agreed between the parties hereto that the said party of the second part shall in each and every year after said first payment designate for redemption, by lot, an amount of said bonds equal to the accumulations in said sinking fund, which shall be redeemed at the par value thereof, due notice of the numbers of the bonds so designated having been previously published by the said party of the second part in two or more of the daily newspapers printed in the city of New York, for sixty days, at the expiration of which interest on the bonds so designated shall cease ‘r and the premises embraced in this mortgage shall thereafter be discharged from so much of the lien hereby imposed thereon as the bonds amount to thus designated for payment. And it is further mutually agreed that the said party of the second part shall and will cancel and discharge each, and every of the bonds secured by this mortgage, with all the interest coupons annexed thereto, which shall be redeemed as aforesaid, and will make upon each bond a brief note or memorandum stating when the same was canceled, and from whom said bond was received, in such manner and form as will enable the party of the first part to trace the transaction, and will immediately return so many bonds as are redeemed to the said party of the first part canceled, and that a proper registry and account of all the bonds so redeemed shall be kept by both of said parties hereto, and shall be open for the examination and inspection of any parties in interest at all reasonable times. And the number or amount of said bonds canceled shall be reported by the said party of the first part to its stockholders in each of its annual statements.” .

The whole issue of bonds under the mortgage was 2,000 of the denomination of $1,000 each, making the aggregate principal of the bonds $2,000,000. After this mortgage was made, and on or about January, 1871, the plaintiff acquired the property of the Tebo & Neosho Bailroad Company, and assumed and became charged with its obligations. On February 1, 1871, plaintiff issue a new mortgage, for the purpose, among other things, of taking up these Tebo & Neosho bonds, and securing satisfaction of the mortgage. As the result, 1,651 of the bonds were received •by the Union Trust Company, as financial agent of plaintiff, in exchange for bonds issued under the new mortgage. Afterwards the said new substituted bonds were all paid in full, and the mortgage of February 1, 1871, was satisfied of record. In addition to these 1,651 bonds, 159 others of the Tebo & Neosho issue were redeemed and paid by plaintiff under a plan of reorganization made in 1889 to retire its then existing indebtedness. These latter are held by the Central Trust Company subject to the order of the plaintiff for cancellation. There has been paid into the sinking fund enough to redeem three bonds, which payment was made in June, 1873, and no payment has been made since. These added together make 1,813 bonds, practically in possession and under the control of plaintiff, leaving but 187 of the Tebo & Neosho bonds outstanding. To discharge these, the plaintiff wishes to pay iilto the sinking fund enough of the averages to pay or redeem all these 187 bonds, and thereupon to have mortgage canceled. Whether it has the right to do so is the question before the court.

As the time fixed for the payment of the principal of the mortgage has not arrived, it is clear that the plaintiff has no right to pay what remains due to outstanding holders, unless such right is secured by the sinking fund provision in the mortgage, under which, as appears by its terms, the mortgagor was to pay $20,000 annually to the trustee for the purposes of the sinking fund, and an equal amount of bonds w^s to be retired yearly. Such annual payments have never been made, the only amount received by the sinking fund and used to redeem bonds being, as already stated,, sufficient to retire three of the bonds, which payment was made in 1873. Notwithstanding the fact, therefore, that nothing was done-during all the intervening years towards carrying out the sinking fund provision, the plaintiff, claiming that it owes to this sinking fund an amount largely in excess of the outstanding bonds, insists on its right to make a payment to such fund which will redeem the whole number, so that the mortgage may be canceled and discharged of record. To this end the plaintiff offered to pay to the Union Trust Company the sum of $193,000, which .offer was coupled with a request that so much of the said sum be put into-the sinking fund as should be necessary to apply to the redemption of the principal and interest of the 187 bonds still outstanding, and that the trust company call in these outstanding bonds, and that thereupon all the bonds, -including those in the sinking fund and those held by the Central Trust Company and Union Trust Company itself, be canceled and destroyed, and that the Union Trust Company satisfy of record the mortgage of June 1, 1870. Union Trust Company declined to accept the money, and apply it as requested, unless ordered so to do by the court.

Although no action has been taken looking towards the carrying out of the terms of the sinking fund provision since 1878, we do not think the plaintiff has lost its right to make payments into the sinking fund, or to insist upon the carrying out of the sinking fund provision; its right in that respect not having been impaired either by the statute of limitations or by loches. But we do not think the construction contended for by the plaintiff is correct, that it should be permitted to pay a sum of money into the sinking fund equal to the amount of the outstanding bonds, and thus compel the trust company to cancel the mortgage. Although, by its terms, the payment to be made annually to the sinking fund was fixed at $20,000 and interest, we find no expression of a right or option to pay a larger amount or .to pay off the entire mortgage whenever the railroad company should deem it for its advantage. While, therefore, the rights of the parties are to be determined by the terms of mortgage, including the sinking fund provision, it is clear that the bondholder has as much right to insist that his bond shall not be retired except according to the provisions of the mortgage as he has to have it redeemed or paid according to the same provisions. If the payments had been made annually, there would be left at the present time -bonds outstanding, and not redeemed amounting to $479,200 ; and this assuming that all the money paid annually was applied to the redemption, of outstanding bonds, and nothing was paid for expenses of administrating the trust, in.the way of advertising drawing bonds, commissions, etc. Under a construction most favorable to plaintiff, therefore, if the sinking-fund payments and redemptions had been regularly made, there would be outstanding to-day at least. 479 bonds; and they could be redeemed only at the rate of $20,-000 and interest thereon per year. The fact that the plaintiff has-bought up or exchanged or in any other way obtained a number of the bonds in no way impairs the obligation of the mortgage contract, and does not destroy the right of those holding the outstanding bonds to insist that they shall not be compelled to deliver them up until, under the contract, the railway company can require their delivery. The right of a lender not to receive his debt before it is due is quite as sacred as is his right to receive it-when it is due. The debtor has no more right to pay the principal before it is due than he has not to pay it when it becomes due, and the rights of the creditor are correlative.

The plaintiff, then, not having the right to pay off these bonds at any time, but only at the rate of a certain number annually, there is no force in the contention that it can buy up or exchange- or in some way obtain the Tebo & Neosho bonds, and cancel them,, and then apply any accumulation of sinking fund that it may choose to the redemption of such bonds as remain outstanding. This would be but another way of saying that the plaintiff had the right whenever it chose to pay off the bonds, which claim is manifestly unequal and unjust, because, taking the high rate of interest which these bonds bear of seven per cent., it is evident that the holders regard them as valuable, and they should not be obliged to accept less than their value, unless, under the agreement pursuant to which they were issued, the company, instead of buying them at their market value, has the right to pay them off at less ; namely, at par. Having resort, therefore, to the contract between the parties, we think the position of the Union Trust Company in refusing to accept the amount tendered by the plaintiff and cancel the mortgage is correct; for, if we assume that the terms of the mortgage were literally carried out, and that, beginning in the year 1873, the $20,000 had been paid into the sinking fund, and twenty bonds thereby redeemed, and that this course-had been pursued in the year 1874 and thesubsequent years down to the present time, it would make in June, 1895, twenty-two years from the first payment, and provision would thus have been made for twenty-two payments and redemptions; and, applying all these payments to the bonds that have been exchanged or purchased by the plaintiff, it would leave all the bonds over the amount so redeemed, which, for the purposes of the sinking fund, must be counted as still outstanding. The plaintiff is entitled to-make the annual payments to the sinking fund, but to no greater and no less amount than is required by the sinking fund provisions. The result would be that the plaintiff, in June of this year, could pay such Installment as then became due, and apply the same to the redemption of bonds as provided by the terms of the Tebo & Neosho mortgage; and thus from year to year, pursuant to such terms, payments could be made and drawings of outstanding bonds had.

It will be noticed that the mortgage provides for the payments into the sinking fund of “a sum equal to one per cent, of the aggregate principal of the bonds, * * * together with interest thereon at the rate of seven per cent, per annum.” We do not. think it necessary to determine from what time the interest runs, but taking the view most favorable to the plaintiff, that the interest from the date of the bonds and mortgage, this would make the first payment amount-to $20,000 and three years’ interest, in all, namely, $24,200; and as shown by the computation of the respondent, if we add $1,400 interest for each successive installment, the total payments into the sinking fund in 30 years would be but $1,335,000, so that, until the 30 years had rolled round, the amount of bonds that could be retired by means of the sinking fund would be no more than the sum just stated. The recital in the mortgage, therefore, that, “by the operation of the sinking fund, the whole of the principal of said bonds will be redeemed in thirty years from the date of the first annual payment,” is erroneous. But if we should assume that the plaintiff was at liberty, over and above the annual payment of $20,000 and interest, to pay into the sinking fund an amount sufficient to retire all the bonds at the end of thirty years, there would yet remain of such term years eight after the 1st of June,1895, during which it would be necessary to make payments into the sinking fund for the redemption of such outstanding bonds .as were not otherwise purchased or exchanged. In any view, therefore, that we may take, except the one that the plaintiff has the absolute right at any time to pay off the bonds, which is not claimed, the sinking-fund provisions cannot now be resorted to for the purpose of paying off the outstanding bonds, upon the theory that the plaintiff, being indebted to the sinking fund in a sum exceeding the amount of the bonds outstanding, has the right to direct the application of such sinking fund to a discharge of such outstanding bonds, disregarding the part which such as have been purchased or exchanged must play in a fair and just construction to be given to the terms of the mortgage as bearing upon the rights q£ the holders of the outstanding bonds.

Our conclusion, therefore, is that the Union Trust Company was right in its refusal to accept the amount tendered, coupled with the condition that it' should be applied to the paying off of the outstanding 187 bonds and the mortgage to secure them canceled; and there should be judgment accordingly for the defendant Union Trust Company, with costs. All concur.


author: Gaynor, J.

text:
    In the Matter of an Application by George Keymer, for a Writ of Mandamus, etc.

      (Supreme Court, Kings Special Term,

      Filed June, 1895.)

    drVIL SERVICE LAWS — PREFERENCE—CONSTITUTIONAL.
    The provision of chap. 344 of 1895 that competitive examination shall not be deemed practicable or necessary in the case of places, the pay of which does not exceed four dollars a day, is applicable alike to all persons presenting themselves for examination, and not to war veterans alone, and is not, therefore, unconstitutional.
    Application by relator for a writ of mandamus to compel the -civil service commissioners to subject him to a noncompetitive examination for the place of messenger in the civil service of the city of Brooklyn, on the ground that he is an honorably-discharged soldier of the war of the rebellion.

      Horatio C. King and Jesse Johnson, for petitioner; A. G. McDonald, Corp. Counsel, opposed.
   Gaynor, J.

— The petitioner claims that he may not be subjected to a competitive examination by the civil service commissioners of the city of Brooklyn, to ascertain his merits and fitness for the place of messenger, but that they must subject him to a noncompetitive examination only. His contention is supported by the act, chapter 344 of the Laws of 1895. It provides that “competitive examination shall not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed $4 per day.”. The place for which the petitioner seeks eligibility falls within this class. The respondents assail this statutory provision as in conflict with section 9 of article 5 of the new state constitution. I do not see that it is unconstitutional. The said section of the constitution is as follows:

“Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to the merit and fitness, to be ascertained, so far as practicable, by examination which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the Civil War, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, with, out regard to their standing or any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

The requirement of the constitution is that merit and fitness for appointment and promotion in civil service shall be ascertained by examinations, “so far as practicable,” and that such examinations shall be competitive, “so far as practicable.” The legislature is directed to make laws to carry out this constitutional provision. What is practicable or impracticable, in this respect of examinations, in order to get the best results, is thus left to the judgment of the legislature. It has exercised its judgment by enacting that “competitive examinations shall not be deemed practicable or necessary” in the cases of positions, the pay of which does not exceed four dollars a day. I do not see that the courts may question legislative judgment in the matter at all. It is left to the legislature to say what particular places shall not be subject to the test of examinations, as is the case generally with counsel to municipal corporations, and confidential secretaries,, for instance, and at the same time to require other places to be filled only by persons whose fitness has been ascertained by examinations, and in the case of these latter to prescribe competitive or noncompetitive examinations, as it deems best. What offices and places it is practicable to subject to civil service examinations at all, in order to get the best results, and which of these should be put to the test of competitive examinations, and which to noncompetitive, is obviously a matter of judgment; and it is now, as it has been heretofore, for the legislature to determine.

The petitioner is an honorably discharged soldier of the late Civil War. It is contended that the said act of 1895 is violative of the section of the constitution which I have cited, in that it gives a preference to honorably discharged soldiers and sailors beyond that provided for in the said constitutional provision. The constitutional requirement is that appointments and promotions in the civil service shall be made according to merits and .fitness, which shall be ascertained by examinations, so far as practicable. It is followed by the proviso that honorably discharged soldiers and sailors of the late Civil War “shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made." I think the preference thus given was meant to be exclusive of any other, — to be the sole preference. It is that, when the eligible lists are made up, war veterans thereon shall have preference for promotion or appointment therefrom, without regard to their standing thereon. ¡No preference or favor is allowed to them in the examinations. The constitutional requirement that merit and fitness be ascertained by examinations necessarily contemplates that all applicants for examination for a particular place or class of places shall be treated alike, in respect of the examination. It cannot, for instance, be made competitive as to some, and noncompetitive as to others. If, therefore, the said act of 1895 must be construed as providing that war veterans shall be tested only by a noncompetitive examination for places, the pay of which does not exceed four dollars a day, while other applicants for the same places may be subjected to a competitive examination, I would deem it unconstitutional. But I do not think it must be so construed. The language of the act is that honorably discharged soldiers and sailors of the late Civil War “shall be certified as such by the commissioners or board of officers authorized to report names for appointment or promotion to the appointing officer or other appointing power, and when such honorably discharged soldiers and sailors of the late civil war are applicants, they shall be preferred for such appointment and promotion, and competitive examinations shall not be deemed practicable or necessary in cases where the compensation or other emoluments of the office does not exceed four dollars per day, but the examination shall be such as is calculated only -to ascertain the merits and fitness of the applicant for the position for which he applies, and if found fitted to fill such position, the applicant’s-name shall be placed on the eligible list and símil be certified therefrom.” The rule is that if an act be capable of two constructions, one of which would make it violative of the constitution, and the other not, the latter construction must be adopted. Although the act is one relating to war veterans, and intended for their benefit, I think the provision thereof that competitive examinations shall not be deemed practical or necessary in the case of places, the pay of which does not exceed four dollars a day, may be easily construed as applicable alike to all persons presenting themselves for examination, and not to war veterans alone. Iam not permitted to assume that the legislature meant" to make the provision unconstitutional by restricting it to war veterans. That the language is capable of such a construction, is true, but it is also capable of the broader construction which I have given it."

Let a writ of mandamus issue, requiring the respondents to subject the petitioner to a noncompetitive examination at a suitable time.

Ordered accordingly.


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    The People ex rel. Elihu Lovett, Pl’ff, v. William A Randall, Def’t.

      (Supreme Court, Orange Special Term,

      Filed June, 1895.)

    Office and officer — Vacancy.
    Where a commissioner of highways of a town holds over after the expiration of Ms term of office for the reason that the election of a successor failed because of a tie vote, there is created a vacancy which may be filled at the next annual election.
    Proceeding to establish relator’s right to the office of commissioner of highways.

      Theodore E. Hancock, Atty. Gen., and M. H. Hirschberg, for relator ; M. N. Kane, for def’t.
   Gaynor, J.

— This town has only one commissioner of highways. The defendant was elected to that office at the town meeting in March, 1893, the term of office being then one year. Thereafter, in the same year, the legislature changed the term for the future to two years. Laws 1893, chap. 344. At the next town meeting (viz. in. 1894) the defendant and the plaintiff ran for the office. The result was no election, the vote being a tie. In that situation the defendant held over, in accordance with the terms of the town law applicable to the office and the case, viz.: “All such officers, except justices of the peace, shall hold their respective offices until others are elected in their places and have qualified.” Section 12, as amended in 1893. The similar general provision of the Public Officers Law, section 5, also enabled him to hold over. This latter statute also provides that in case of such holding over by a public officer after the expiration of his term the office shall be deemed vacant for the purpose of choosing his successor.” Section 5. The town law requires that “ if there shall be any vacancies” in several offices named, including commissioners of highways, “ at the time of holding its (the) annual town meeting, persons shall 'then be chosen to fill such vacancies, who shall hold their offices for the residue of the unexpired term for which they are respectively elected.” Section 13. There is no room for the contention that this has reference only to actual physical vacancies, or the vacancies recognized and defined by the statute (Public Officers Law, § 20); for, though there is no actual or legal vacancy in the case of holding over, the statute provides in such a case, as we have seen,' that the office shall be “deemed vacant,” for the purpose of choosing a successor to the holdover, which, of course, means a successor to his expired term, — a person to succeed him and his expired term. The electors, therefore, had the right to elect some one to the office in question at the town meeting of 1895, the same as though it were actually vacant, and, having elected the plaintiff, he is entitled to the office.

Section 4 of the election law has nothing to do with the case. It relates only to general elections. Nor, in view of the statutory provision that the office, in the case of a holdover, shall be deemed vacant, for the purpose of filling it, have decided cases, in respect of what is or is not a vacancy, any present application.

Judgment for plaintiff, with costs.


author: Van Wyck, J.

text:
    Philip Kruelwitch et al., Resp’t, v. William Meltsner, Impleaded, etc., App’lt.

      (New York City Court, General Term, Filed

      June 25, 1895.)

    Bills and notes — Accommodation.
    The holder oí a note, whose transferrer took it before maturity, for value and without knowledge of any facts constituting a defense in favor of an accommodation indorser, can recover thereon, irrespective of the question whether he had notice of them at the time of the transfer to him. /
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Abm. Levy, for app’lt; A. D. Levy, for resp’ts.
   Van Wyck, J.

— The uncontradicted proof is that plaintiffs are the holders of a note for $400, made by the defendant co-partnership firm to their own order, and indorsed by them, and then by William Meltsner, the only defending defendant, and thereafter, and before maturity, indorsed and delivered by one Schreiber to plaintiffs, in payment of his indebtedness of $400 to him. The counsel of defendant Meltsner declared in his opening that he would prove that his .client was an accommodation indorser; that the firm makers, payees of the note had failed; and that two years thereafter, but not before the maturity'of the note, a member of that firm went to Schreiber with this note, and borrowed from him the money. But he did not state that he would prove that Schreiber knew of these facts, or of any of the facts which he said he would prove that these plaintiffs knew of. The test is, could Schreiber have maintained this action on this note against this accommodation indorserffiad he continued the holder thereof? Assutping that the facts which counsel stated that he could prove would constitute sufficient defenses in favor of this indorser, as against the makers, payees, still they would not be good defenses as against Schreiber, who lent the money on the note before maturity, and without notice of any of these facts; and his cause of action would have been perfect, and not subject to these defenses ; and so, too, they are of no avail as against these plaintiffs, irrespective of the question whether they had notice of them or not, for they have acquired all the rights of Schreiber by his indorsement and delivery to them of the note, and the opening concedes that Schreiber liad no notice thereof. Judgment affirmed, with costs. All concur,


text:
    Jacob Kantrowitz, Resp’t, v. Isaac Levin et al., App’lts.

      (New York City Court, General Term, Filed

      June 25, 1895.)

    Partnership — Liability.
    Where anote is made out, signed with the name of the firm, and delivered by one partner to the payee named therein, who pays full value therefor, the legal presumption is that the original contract was between the firm and such payee, and is sufficient to sustain a finding that the note was a valid firm obligation, in the absence of evidence that the money was advanced to the partner individually, who negotiated the note.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from, an order denying a motion for a new trial.

      A. H. Berrick, for app’lts; M. D. Stener, for resp’t.
   Van Wyck, J.

— The proof is complete and uncontradicted that the defendants were co-partners under the firm name of H. & I. Levin, and that defendant Hyman Levin signed said firm name to the two notes of $600 each, payable to order of plaintiff, and sued upon in this action. If the proof showed that these notes were, - without Isaac’s knowledge or consent, given by Hyman to pay or secure-his individual indebtedness to the plaintiff, payee, then appellant would be right in his contention that such payee cannot recover thereon as against such co-partnership firm. Union Nat. Bank v. Underhill, 102 N. Y. 336; 2 St. Rep. 248, but such is not the proof, for plaintiff’s uncontradicted and corroborated testimony is that, “when these notes were given to me, I gave $600 for the first one and $600 for the second,” and that they were made out and signed with the firm name of H. & I. Levin,- by Hyman, to whom plaintiff handed the sum of $600, when each was delivered to him by Hyman.

There is no evidence whatever that Hyman was at that time indebted to plaintiff in any sum, nor even that these two sums were loans to him individually, and the legal presumption is that the original contract was between the copartnership firm, who signed the notes, and the plaintiff, payee, who paid the full face thereof, in cash, to the member of the firm negotiating their discount. The authority of one member of a firm to make and deliver the firm’s notes, negotiate the discount thereof, and receive the cash therefor, cannot be questioned by the other members of such firm.

The judgment and order are affirmed, with costs.


text:
    Louis Evers et al., Resp’ts, v. Eliza O’Mara, App’lt.

      (New York City Court, General Term,

      filed June 25, 1895.)

    Pleading — Amendment.
    Leave to amend the answer by withdrawing an admission and interposing a denial in an action for goods sold and delivered, was held, under the circumstances of this case, to have been properly denied.
    Appeal from an order, denying a motion for leave to serve an amended answer, but with leave to renew the same before the referee.

      Lincoln McCormack, for app’lt; L. W. Emerson, for resp’ts.
   Van Wyck, J.

— The plaintiffs, who are retail grocers, commenced this action in June, 1894, by service of summons and complaintand in the latter alleged that during a period of fourteen months,, ending in September, 1893, they sold and delived to defendant groceries of the value of $949.47, on account of which she had paid $361.16, leaving a balance due of $558.81. The defendant demanded and received a voluminous bill of particulars of the daily deliveries of the groceries during such period, and of the separate values thereof. Thereafter, on June 26, 1894, defendant served a verified answer, in which she specifically admitted that during the alleged period “ groceries to the value of $949.47 ” had been sold and delivered to her ns alleged in the complaint, and alleged that she had paid “ the sum of $949.47 in full payment for said goods.” By consent, the issues thus framed were sent too referee to hear and determine, and noticed by plaintiffs for trial for May 1, 1895, before the referee, on which day the parties appeared, and defendant sought and obtained an adjournment of two weeks, and then moved at special term, on the 15 of May, eleven months after issue joined, on a proposed amended answer, verified by her, and on an affidavit made, not by her, but by her attorney, for permission to'serve such amended answer, by which she. withdraws the admissions contained in her original answer, and interposes a denial, which will put the plaintiffs to the proof of their cause of action, and of the quantity and value of eveiy of these numerous items of groceries delivered to her daily, for a period of fourte.en months, ending two years ago, but retains her plea of payment in full for all such groceries. The defendant makes no affidavit, but her counsel avers that he “has examined the plaintiffs’ bill of particulars, and found it to be grossly inaccurate in respect to the amount of the goods delivered, the time of such deliveries, and the value of the goods delivered, and in over forty places in the addition of the various items composing the daily orders.” What does he know of his own knowledge about’ the amount and value of the groceries, or the times of their delivery, and why does he not specify these errors in the additions ? They may counterbalance one another, or may aggregate only a- few cents or a few dollars, and, if so, why should plaintiffs be forced to make proof of many hundred items of groceries, their value, and time of delivery, especially when, the delivery was made several years ago. If these errors in the addition of the bill of particulars really exist, and are at all substantial, the referee will certainly correct them by amendment or otherwise, and they should be pointed out to enablet he plaintiffs to correct them if they exist. The court below properly denied defendant’s application for permission to interpose an amended answer on the facts disclosed on the motion, and was indulgent to defendant in granting leave to renew her application before the referee.

Order affirmed, with $10 costs. »

All concur.


author: Conlan, J.

text:
    Abraham Popkin et al., Resp’ts, v. William Barr Dry Goods Company, App’lt.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Appeal — Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdicl in favor of defendant, and from an order denying a motion for a new trial.

      M. Warley Platzek, for app’lts; Douglas & Minton, for resp’t.
   Conlan, J.

— Appeal from a judgment entered on the verdict of a jury, and from an order entered denying a motion for a new trial. 'This action was brought to recover the price of fifty-three garments claimed to have been manufactured by the plaintiffs for defendant pursuant to an order for that purpose made at St. Louis, June 8, 1892. The defendant denies the authority of its agent to make the order, and allegest hat if such order was given the same was,, •revoked and annulled by the parties. The evidence shows that one Matthew H. Brandon was in the employ of the plaintiffs in .June, 1892, as traveling salesman, they being engaged in the coat and cloak manufacturing business in the city of New York. That on the 8th day of June, 1892, Brandon called at the store of the defendant, in St. Louis, and met one Sullivan, who was the buyer for the cloak department of the defendant; that he exhibited his samples to Sullivan both at the defendant’s place of business and" at his hotel; the result of which was two orders given by Sullivan, aggregating fifty-three cloaks, at agreed prices, to be manufactured by the plaintiffs, and to be delivered about November 1st, then next. The testimony of the witness Sullivan does not materially .alter the testimony of Brandon, except that he does not remember two orders, but will not say that he did not order the amount claimed. No question arises as to the quantity or quality of the goods, or as to the time and manner of delivery. The defendant, on the other hand, shows that Sullivan was a department manager for the defendant, and not a buyer in the full sense of the term, that he could select goods that were or might be required, but that the order containing the selection made by him had to be approved by the superintendent of stock before the defendant would book the order. A. M. Franklin, called for the defendant, testifies at folio 145: “ It is the custom of the trade, as I know for one, being in the business forty years, when any house has a number of buyers situated at different points, to ratify their orders before they become orders.” Again at folio 146, the question is asked by the court: “State if there is such a custom in the trade.” Answer: “Yes; all large business houses that have a number of people selecting goods must have their selection approved by somebody.” The witness also testified that, hanging in the sample rooms where agents exhibited their goods, was a large sign containing the following words: “Notice. To traveling men and agents: All orders given you by our buyers must be signed by the superintendent oE stock before you can book the order. (Signed) Wm. Barr Dry Goods Go.” This sign was admitted in evidence, against the plaintiffs’ objection. It is not claimed that Brandon actually saw the sign in the defendant’s store, while, on the other hand, Brandon testified positively that he did not. It therefore became a circumstance for the jury in connection with the testimony óf Franklin as to the usages of trade.

It also appears that the orders taken by Brandon were not approved by the superintendent of stock. If the defendant relied solely on usage, and implied notice,‘evidence would be required, but that is only part of the defense. The answer alleges and proof was offered tending to show revocation by the defendant, and apparent acquiescence by the plaintiffs, of the order in question. The witness Franklin testifies, at folio 132, that on June 8th, Sullivan handed him a memorandum, which he sent to one Morrell, defendant’s New York representative'. Morrell testified that he received the memorandum from Franklin about June 15th, that he called on the plaintiffs, and told them that Sullivan was no longer in defendant’s employ, and that the order lie had given could not be confirmed, that one of the plaintiff’s said, “that will be all right.” It also appears by the testimony of one Schiller, who was also in the employ of the defendant, that he called on plaintiffs about the middle of July, on the subject of the Sullivan order, when he was told “it was all right.” Again, in August, he called and explained that the order had been canceled, when defendant said, “ all right; we know all about it.” The testimony of the defendant’s witnesses as to consent of cancellation of the order was flatly contradicted by the plaintiffs’ witnesses, thereby making a sharp conflict of evidence on a material part of the case for the consideration of the jury, and as the case was mainly of fact, and fairly submitted, we think the verdict should stand.

Judgment affirmed, with costs.

All concur.


author: Conlan, J

text:
    Henrietta Hecht, App’lt, v. Edward C. Herrwagen, Resp’t.

      (New York City Court, General Term,

      filed June 25, 1895.)

    Landlobd and tenant — Rent.
    Under a provision in a lease that “if the premises be so damaged by fire that the landlord shall decide to rebuild, the term shall cease and the accrued rent be paid up to the time of the fire," the exercise by the landlord of his option, after damage by fire, to rebuild, relieves the tenant from liability for rent from the time of the fire, though the rent was payable on the first of each month in advance.
    Appeal from a judgment, entered on a verdict in favor of defendant.

      Arthur Furber, for app’lt; Deyo, Duer & Bauerdorf for resp’t.
   Conlan, J

— This is an appeal from a judgment entered on the verdict of a jury by direction of the court. This action was brought to recover the sum of $158.33, as rent for the month of August, 1891, under a written lease,, between the plaintiff and the defendant, of certain premises in Prince street, in this city. The lease contained, among other things, this clause: “ But if the premises be so damaged by fire that the landlord shall decide to rebuild, the term shall cease, and the accrued rent be paid up to the time of the fire.” It is conceded that the buildings were so damaged by-fire'on the 12th day of August, 1891, that the landlord elected to-avail himself of the above option, and the lease thereby became terminated. It is also conceded that the amount claimed was the monthly rent reserved by said lease, that it was payable on the 1st of every month, and that the August rent had not been paid at the time of the commencement of the action. Plaintiff claims that, the rent being due on the 1st of the month, it had then accrued within the terms of the lease, and the respondent was entitled to full rent for the month. Defendant contends that the words “accrued rent up to the time of the fire” mean rent to-the day of the fire, and no more. Under the provisions of the-lease, the landlord had the option, in case of fire, to repair or rebuild, in which latter event the lease was terminated, and in order that no injustice be done, or hardship imposed on the tenant, the clause in question was inserted in the lease, fixing a just and equitable period at which rent should cease, and up to which rent should be adjusted. There being no question of fact to submit to the jury, the trial judge was right in directing a verdict for the-rent up to the time of the fire.

Judgment affirmed, with costs.

All concur.


text:
    David Mayer Brewing Company, App’lt, v. Angelo Rizzo, Resp’t.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Supplementary proceedings — Receiver—Property.
    A judgment debtor will not be required to assign a liquor license to a receiver in supplementary proceedings, where he had previously, for a good consideration and in good faith, assigned it to another person.
    Appeal from an order, denying an application to compel at judgment debtor to assign a liquor license to a receiver in supplementary proceedings.

      J. Bradley Tanner, for app’lt; Davis & Kaufman, for resp’t.
   Conlan, J.

— This is an appeal from an order denying a motion, to compel a judgment debtor to assign a liquor license to a receiver appointed in supplementary proceedings. It appears from the record that the judgment debtor, prior and down to March. 19, 1894, was carrying on a liquor business at No. 70 Crosby street, in the city of New York, and that he had a liquor license therefor; that on said 19th day of March, 1894, for what appears to be a good and valuable consideration, he assigned and mortgaged the license he then had, and such others as might be issued to him, to the India Wharf Brewing Company, a corporation doing business in this state. In April, 1895, an application was made to compel the judgment debtor to assign his license to a receiver appointed in supplementary proceedings March 19, 1895. The assignment of mortgage covering the license in question to the India Wharf Brewing Company is not claimed to be fraudulent, or wanting in consideration, nor was it contended that the consideration for said assignment or mortgage had been paid. An assignment, therefore, by the judgment debtor, would have been an idle formality. The receiver can proceed to acquire the licensed business of the judgment debtor under chapter 480, Laws 1893, section 26, which was enacted to cover cases similar to the one before us.

Order appealed from affirmed, with costs.


text:
    Charles F. Holm, App’lt, v. Parmele-Eccleston Company, Resp’t.

      (New York City Court, General Term,

      Filed June 25, 1895.)

      . Attorney and client — Compensation—Proof.
    The finding of the jury as to the amount of compensation, to which the attorney was entitled in this action, was held not to be contrary to the evidénce.
    Appeal from a judgment, entered on a verdict for $25 in favor •of plaintiff.

      Terry Smith, for app’lt; W. Harris Roome, for resp't.
   Van Wyck, J.

— The lawyer plaintiff testified in detail as to the numerous professional services which he had rendered for defendant, and then that he rendered a bill for $150 for the same, ¡and that “I consider that sum as a reasonable sum for the services 1 rendered in this matter; ’’ and Mr. Smith, his managing clerk and his attorney of record herein, testified, “I consider $150 for these services a reasonable compensation.” This was the only evidence as to the value of the numerous services which plaintiff testified he had performed for defendant, and hence appellant’s contention that the verdict of $25 was insufficient and .against this evidence as to value. But the jury may have found, as they had the right, from the proof, to find, that he had not rendered all of the services which he testified he had, and that $25 was a reasonable compensation for the services which he had .actually performed. Where the value of professional services is to be passed upon, it is the duty of the jury to consider the expert testimony, and judge of its weight and force, and, from the evidence in the case as to the nature of the services, the time occupied in them, and the benefit derived from them, determine whan, in their judgment, is their reasonable value. Reves v. Hyde, 14 Daly, 431. In that case plaintiff’s lawyer witnesses testified that the professional services were reasonably worth from $150 to $250. This was not contradicted, and the judge charged "the jury. “ You will determine from the evidence presented to you from the witness stand what compensation between $150, as fixed by some of the witnesses, and $250, by the lawyer himself, he would be entitled to; ” and it was held that the court erred in this instruction, and, therefore, that judgment for plaintiff must be reversed.

Judgment and order affirmed, with costs.


author: Newburger, J.

text:
    George B. Ackerly, as Receiver, etc., Resp’t, v. Robert A. Osborn, App’lt.

      (New York City Court, General Term,

      filed June 25, 1895.)

    Appeal — Order overruling demurrer.
    Ho appeal will lie from an order overruling a demurrer.
    Appeal from an order overruling a demurrer to the complaint.

      Sidney Harris, for app’lt; John Naumer, for resp’t.
   Newburger, J.

— The complaint alleges that the plaintiff was appointed a receiver of the premises No. 47 Irving Place, in this city; that as such receiver, he rented the said premises to the defendant for one year ; that the defendant went into the possession of said premises ; and that he has not paid the rent for the months of September, October, November, and December, 1894, and the month of January, 1895, excepting the sum of $40. The defendant demurred to this complaint on the ground that the same fails to state facts sufficient to constitute a cause of action, which demurrer was overruled, and, from the order overruling the demurrer, this appeal is taken. It has been repeatedly held that no appeal will lie from an order overruling a demurrer. Bank v. Lynch, 76 N. Y. 514; Stokes v. Stokes, 76 Hun, 314; 59 St. Rep. 187; Nealon v. Frisbie, 9 Misc. Rep. 660; 62 St. Rep. 412; Gray v. Rothschild, 20 St. Rep. 789.

The appeal must therefore be dismissed, with costs.

All concur.


text:
    In the Matter of an Application by the Tribune Association to Extend a Receivership.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Supplementary proceedings — Receivership.
    An order extending a receivership cannot be made after the death of the judgment debtor.
    Appeal from an order granting an application to extend a receivership.

      William C. Davis, for app’lt; Sackett & McQuaul, for resp’t.
   Conlan, J.

— This is an appeal from an order made extending a receivership after the death of the judgment debtor. There was nothing before the judge at special term, as appears from the record before us, to. show that the Tribune Association ever had a judgment against Worthington, or that he was ever examined in supplementary proceedings, except a mere recital in the order. This was not enough to confer j urisdiction on the court to make the order appealed from, but. assuming a valid judgment and examination in supplementary proceedings, it follows that the order cannot be sustained. The judment creditor has an undoubted right to make this application at any time during the life of the judgment debtor, but, not having done so, he must stand like all other judgment creditors. No orders can be made in proceedings of this character upon notice to an administrator to take effect anterior to the death of the intestate. The rights of other creditors may have intervened, and the estate must be distributed according to the legal rights and priorities of creditors at the time of the death of the judgment debtor.

Order appealed from reversed, with costs.


text:
    Ella V. Fitzgerald, Resp’ts, v. John H. Timoney, App’lt.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Negligence — Proximate cause.
    The owner of premises is not liable for injuries, caused by plaster falling from a ceiling through the act of an employe of an independent contractor, engaged in repairing, though the plaster was loose and likely to fall at any time to the owner’s knowledge.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. H. Deady, for app’lt; F. C. Devlin, for resp’t.
   Conlan, J.

— This is an appeal from a judgment entered on the verdict of a jury and from an order denying the defendant’s motion for a new trial. The action is based on negligence, and it follows, therefore, that, unless the negligence of the defendant was the cause of the injury, the judgment must be reversed. The plaintiff was residing with her family, occupying a floor in the house of the defendant at No. 252 East Fifty-Second street, on the 28r.h of September, 1891. The evidence of the plaintiff is to the effect that when the premises were rented the janitor of the defendant promised that the defendant would made the repairs; that, about July or August, 1891, she, with her sister, called the attention of the defendant to the ceiling in the kitchen, where it had cracked and sagged, and was thought to be in a dangerous condition, and that the defendant promised to repair it, but did not do so up to the 28th day of September, when a large piece of plastering fell from the ceiling, striking the plaintiff upon the head and shoulders, thereby causing the injury complained of. The defendant, while denying the promises to repair, alleges and shows that, about the time complained of, he made a contract with one McCormack, a carpenter, to take out the old, and put down a new floor in the apartments immediately over the apartments occupied by plaintiff, for the sum of $64; that McCormack was engaged in said work on the 28th day of September, 1891, and that he had in his employ his son and one Luby, who had formerly been in the express business. Luby testifies, at folio 119: “I was helping McCormack and his son to take up the floor of the house on Fifty-second street. I was standing on the beam, when my foot slipped and went through the ceiling, and broke two laths ; and a lot of mortar fell on the table. The hole was big enough for my foot to go through. The broken laths fell down with the ceiling.” This testimony is corroborated by one James McCormack,, the son of the contractor, and who was assisting his father at the time. It is not contended that the person assisting McCormack at the time of the accident was in the employ of the defendant, or under his control, or subject to his directions. He was the servant of the contractor McCormack, employed by him, and entirely subject to his orders. Ho act of negligence on his part could make the defendant liable. Hexamer v. Webb, 101 N. Y. 377; Kelly v. Cohoes Knitting Co., 65 St Rep. 644. The plaintiff does not pretend to know what caused the plaster to fall. Therefore, assuming, for the sake of argument, that the defendant did agree to make repairs, and that the kitchen plastering was out of repair on the 28th day of September, 1891, yet the uncontradicted evidence shows that the impaired condition of the plastering was not the proximate cause of the injury. It is true that the ceiling might have fallen later through inherent defects, if not repaired, but the court cannot speculate as to the time when, or that any person would be injured thereby. The undisputed evidence shows that the proximate cause of the injury was the slipping of the contractor’s employe, thereby pushing his foot through the ceiling, displacing a large portion of the plaster. There was, therefore, no disputed question of fact controlling in the case for the jury to determine; and defendant having shown his contract with McCormack, and traced the immediate cause of the injury to persons other than his agents, servants, or employes, he was entitled to the direction asked for by his counsel at the close of the testimony. The refusal was error.

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


text:
    Frederick G. Groff, as Assignee, etc., Resp’t, v. Thomas Hagan, App’lt.

      (New York City Court, General Term,

      Filed June 25, 1895.

    Bill of particulars — Affidavit by attorney.
    An order for a bill of particulars will not be granted on the affidavit of the attorney.
    Appeal from an order, denying a motion for a bill of particulars.

      Ezekiel Fixman, for app’lt; A. R. Bunnell, for resp’t.
   Newburger, J.

— Without considering all the questions raised "by the appellant, there is one reason why the order appealed from should be reversed. The affidavit upon which the order is made is by the attorney for the plaintiff. It has been repeatedly held that an order for a bill of particulars will not be granted on the affidavit of the attorney. Van Olinda v. Hall, 64 St. Rep. 94 ; Dueber Watch-Case Manuf'g Co, v. Keystone Watch-Case Co., 50 St. Rep. 417; Gridley v. Gridley, 7 Civ. Proc. R 215.

The order appealed -from must therefore be reversed, with costs.


text:
    Jason W. Warren, Resp’t, v. Alfed W. Dennet, App’lt.

      (New York City Court, General Term, Filed

      June 25, 1895.)

    False imprisonment — When lies.
    A action for false imprisonment can only b® maintained,where the arrest was unlawful.
    Appeal from a judgment in favor of plaintiff.

      Shafer & Burt, for app’lt; George E. Wentworth, for resp’t.
   Newburger, J.

— This action is brought to recover damages for false imprisonment. The defendant Dennet, on the 22d day of May, 1893, was the proprietor of an eating house on Park Row, this city; and the defendant Tynan was his manager in charge, Dennet being in California at the time. On that date the plaintiff entered the establishment, and partook of food to the extent of forty cents’ worth as is claimed bv the defendants, but to the extent of thirty cents only as claimed by himself. On the refusal of the plaintiff to pay the additional sum, or ten cents, demanded,the defendant Tynan summoned an officer, and caused the plaintiff’s arrest. The plaintiff was taken to a police station, where Tynan preferred a charge of disorderly conduct against him, whereupon the plaintiff paid the additional ten cents, and was released.

On the trial, after the opening of the case, at the close of the plaintiff’s testimony, and before the submission of the case to the jury, the defendants moved to dismiss the action, upon the ground that there was no evidence that the arrest complained of was unlawful, which motion was denied. We think the trial justice erred. The plaintiff had a right to combine the two causes of action— one for malicious prosecution, and another for false imprisonment —in one complaint. Marks v. Townsend, 97 N. Y. 590. But at the trial the plaintiff declared that the action was for false imprisonment only. It is well settled that the action for false imprisonment can only be maintained where the arrest was unlawful, and without authority of law. Cunningham v. East River Electric Light Co., 42 St. Rep. 212. As far as the complaint and evidence show, the arrest was lawfully effected.

Without considering any of the other questions raised, the judgment appealed from must be reversed, and a new trial granted, with costs to the appellants to abide the event.


text:
    Joseph F. Day, Resp’t, v. Studebaker Bros. Manufacturing Company, App’lt.

      (New York City Court, General Term,

      Filed June 25, 1895.)

    Duress — What is.
    A threat by a person to do what he has a legal right to do is not duress.

      Appeal from a judgment in favor of plaintiff.

      Ver Pank & Young, for app’lt; Burr & De Lacy, for resp’t.
   Conlan, J.

— This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new-trial. This action was brought to recover back the sum of $300-claimed to have been paid to the defendant under duress. The evidence shows that about August, 1891, the defendant corporation was engaged in manufacturing carriages in South Bend, Ind„ The plaintiff was in its employ, with an office in the city of New York. About October of that year, the plaintiff went to South Bend, where he had a conversation with an officer of the defendant, in which it was claimed that plaintiff had received $500 which belonged to the defendant. This claim was resisted by the plaintiff, who claimed the money belonged to him. Plaintiff also testified that he was given to understand that his services would not be needed by the defendant unless he paid over his money. After some further talk, it was agreed that $300 should be turned or paid over to defendant, instead of the $500 originally claimed, and which sum plaintiff transferred to the credit of the defendant on his return to New York.

Assuming the money to belong to the plaintiff, this action cannot be maintained. The payment of the money after his return was purely a matter of business policy, and lacked every essential element of duress. The defendant was under no obligation to retain the services of the plaintiff, and, if plaintiff saw fit to pay $300 as the price of his retention in the employ of the defendant,, he is bound by his bargain. It might with equal forced be urged that if defendant has informed plaintiff that, unless he consented, to take less salary than he was getting, he would be discharged,, and plaintiff, desirous of retaining his place, consented, he could subsequently recover his original salary. Such a proposition could not be entertained for a moment. The money was transferred to-defendant after plaintiff's return to New York, and after ample opportunity to realize what he was doing, and without any fraud or deception on the part of the defendant. Where a party threatens to do only what he has a legal right to do, there can be no duress. 6 Am. & Eng. Enc. Law, p. 71; Secor v. Clark, 117 N. Y. 350 ; 27 St. Rep. 169 ; Barrett v. Weber, 125 N. Y. 18-25 ; 34 St. Rep. 358 ; Doyle v. Rector, etc., 133 N. Y. 372; 45 St. Rep. 205. It follows that the plaintiff is without relief, and that the defendant’s motion at the close of the plaintiff’s case should have been granted.

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