author: O’Brien, J. Van Brunt, P. J.

text:
    In the Matter of The Globe Benefit Association.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Benefit societies—Minors.
    A benefit society incorporated under chap. 175, Laws 1883, cannot insure the lives of minors.

      ■% Same.
    Mutuality of obligation is the fraudulent principle upon which these corporations are established, and the relation between the members and the society is one of contract, and hence, as infants cannot contract, they cannot become members.
    (Van Bbunt, P. J., dissents.)
    :3. Same.
    The contract obligation of the member is not affected by the fact that losses are to be paid from weekly dues instead of assessments.
    This appeal is taken by the Globe Mutual Benefit Association from, so much of an order as restrains said association “ from continuing to transact business, so far as the insurance of minors against accident, sickness or casualty, and the insurance of the lives of minors is concerned.”

      W. O. Tracy, for app’lt; I. H. Maynard, asst, "att’y-gen’l, for .resp’t.
   O’Brien, J.

The sole question presented by this appeal is whether a co-operative insurance company incorporated under chap. 175 of the Laws of 1883 of the state, and which has adopted the by-laws adopted by this company, can insure the lives of .minors.

Under the by-laws adopted the losses are not to be paid from ¡assessments levied upon the members, but from weekly dues collected from policy holders. Though great stress is placed upon the difference in the mode of collecting the moneys necessary to meet death losses between the payment of the weekly dues, as here, ■and the levying of assessments from time to time as might be necessary, as provided by the by-laws of other mutual companies, no real distinction can be drawn from the mode of payment between the obligations of the members in either case. Bacon, in his work on Benefit Societies and Life Insurance, § 161, p. 201, in •speaking of a certificate of membership in such- society says: “ This certificate is in the nature of an insurance policy issued by ■a mutual company. The conclusion from an examination of all the cases is that the contract is found in the certificate if one is issued, but is to be construed and governed by the charter and' by-laws of the society, and the statutes of the state of the domicil ■of the corporation.”

If we therefore take the act itself of 1883 (chap. 175) under which this association was organized, it becomes evident that mutuality of obligation is the fundamental principle upon which these corporations are established. Sections 5 and 6 of the act -speak of the contract of insurance as a promise or agreement between the corporation and its members, and the extracts from the By-laws which are annexed to and form a part of the certificate of ¿membership characterize the membership as a contract. On this branch of the subject little need be added to the reasons assigned by the learned judge below, showing that the relation between “the members and the society is one of contract. Our attention, .however, has been called to the case of the Chicago Mutual Life Indemnity Association v. Hunt, Attorney-General, 127 Ill., 257, which it is claimed is at variance with the view that the relation is a contract one. An examination, however, of the Illinois case will show that the statutes of the two states are different. The Illinois statute authorizes a corporation in its articles of incorporation to prescribe the limit as to the age of applicants for membership. Upon this subject of age limitation our statute is silent. Apart, however, from this difference, the opinion of the court in the Illinois case holds that the making of an assessment or the maturing of dues does not make the member a debtor of the •association so as to authorize it to bring a suit for its recovery in •case of his neglect or refusal to pay. This is contrary to the doctrine laid down in the case of McDonald v. Ross-Lewin, 29 Hun, 87, wherein it was held that the issuance and acceptance of the certifi•cate furnished a sufficient consideration for the defendant’s agreement to pay any assessment made during the time he should continue a member of the association, and that upon his failure to pay an action would lie against him therefor. Again, as pointed ■out by the respondent, the 'contents of the certificate of member,ship in the Illinois case are not given, and it may well be that it was so drawn as not to create any liability on the part of the members, which would distinguish it from the views taken by our ■courts, that under the act relating to mutual benefit societies a liability upon the part of the members to pay dues is created. In addition, however, to the reasons assigned by the learned judge below, there is another and controlling one to be derived from the statute itself.

Section 1 of the act provides that any number of persons, not less than nine, may form such a corporation, and § 3 provides : il The said corporators and those that may thereafter be associ•ated with them, shall be constituted a body politic and corporate.” The persons here referred to are the persons who are to ■constitute the membership of the corporation, and it is clearly implied that they are to be persons who are sui juris and competent to enter into a valid undertaking in law. In other words, an infant cannot become a member of such corporation, and thus an .associate of the original incorporators and thus make up the body politic, unless he was competent to be one of the original incorporators or competent to become an incorporator if the company was being incorporated at the time that he becomes a member. It has frequently been held that where a statute authorizes persons "to form a corporation, although the statute does not in express terms say that they must be of full age, yet ■ it is implied that they shall be of full age. Here, after the act of incorporation, it was the members of the society which constituted it a continuing corporation, and it would seem reasonably clear that a person who is not competent to act for the "purpose of creating it a corporation, could not be competent to act for the purpose o£ continuing it as a corporation, and more difficult still would it be to determine, in the event of all the members of the corporation being infants, upon what grounds such members who are ineligible as corporators could be competent to continue its corporate-existence or business. There is nothing in the express provisions of' the law of 1883, nor in the language of the act, which by a reasonable intendment can be construed into authorizing the appellant to engage in the business of insuring infants. As therefore the .whole business of insurance by corporations in this state-is now regulated and controlled by statute, in the absence, of any such authority express or implied it will not be assumed.

It is our opinion that the order appealed from should be-affirmed, with costs.

Lawrence, J., concurs.

Van Brunt, P. J.

I cannot concur in the reasons which Mr. Justice O'Brien has assigned for the conclusion which he has-reached upon this appeal. . - ,

There is no doubt that, if there was any legal- obligation upon the part of the member’s of the appellant to pay any dues or-assessments, that then no contract of insurance of a minor could be made, because a minor could not enter. into any contract which imposed a legal obligation upon it which could be enforced. But in thp case at bar I find no authority for the levying of an assessment or any obligation upon the member to pay the dues.

The only result of the failure to pay the dues is the suspension .of membership precisely the same as, in the ordinary insurance companies, the failure to pay the premium forfeits the. policy. There is, therefore, no contract upon the part of the assured to do anything; the payment of the dues being only a condition precedent of the continuance of the membership or insurance, and in this.respect the case at bar differs materially from that of McDonald v. Ross-Lewin, 29 Hun, 87, there being in that case an. express agreement to pay assessments.

But upon an examination of the.language of §§ 5 and 18 of the act under which the appellant is incorporated, it will be seen that the action of the member is contemplated by the statute, it providing by § 5 that where any corporation, association or society which issues any certificate, policy or other evidence of interest, or makes any promise or agreement with its members whereby,, upon the deceasb of a member, any money or other benefit, charity,, relief or aid is to be provided or rendered by such corporation,, association or society to the legal representative of such member,, or to the beneficiary designated by- such member, etc. This language clearly confines the designation of the beneficiary to the-member himself, and to no one else, hence assuming that the¡ member is capable of acting in a legal manner in reference to the-matter of insurance, which a minor cannot do. It is for the member to designate whether the loss shall be paid, to his legal representatives or to some other beneficiary. And this view is reenforced by a consideration of the language of § 18, which provides, that membership in any corporation, association or society transacting the business of life or casualty insurance, or both, upon the co-operative or assessment plan, shall give to any member thereof the right at any time with the consent of such corporation, association or society to make a change in his beneficiary or beneficiaries without requiring the consent of such beneficiary or beneficiaries.

Here again we have assumed that the members have the capacity to act in changing their beneficiaries with the consent of the corporation, carrying out the privileges conferred by the fifth section ■of designating who the beneficiary of the insurance should be. These things it being impossible for a minor to do, and being the necessary incidents of membership, the power to designate being ■a necessary part of the insurance, it is .clear that minors cannot become members of such an association.

The order should be affirmed, with costs.


source: Caselaw Access Project

author: Lawrence, J.—In Van Brunt, P. J.

license: Public Domain

text:
    The Sixth Avenue Railroad Co., Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    New York city—Assessments—Action to restrain collection not MAINTAINABLE.
    An ac.ion to have an assessment adjudged not to be a lien on property in Hew York city and to restrain its collection cannot be maintained. Such action is prohibited by § 897 of the Consolidation Act.
    Appeal from an order at special term continuing an injunction.

      William II. Clark, for app’lt; JBurrill, Zábriskie & Burrill, for ¡resp’t.
   Lawrence, J.—In

his complaint the plaintiff demands judgment that a certain assessment may be adjudged not to be a lien ■on the railroad of the plaintiff, or any part thereof, and that defendant and its officers and agents, etc., be enjoined and restrained from selling or taking any proceedings to sell said railroad, or any •of its railroad tracks, etc., for the non-payment of said alleged assessment, and from taking any proceedings to enforce or collect the same, and from making any lease of said railroad or any part thereof, and that the comptroller and collector of assessments and ■clerk of arrears be restrained and enjoined as aforesaid during the pendency of this action. The preliminary injunction which was granted at the special term was subsequently continued after hearing, and from the order entered upon the decision in the plaintiff’s favor this appeal is taken.

The assessment referred to in the moving papers was for the ■paving of a portion of Sixth avenue between Carmine street and Forty-second street, which was confirmed as far back as December 21, 1860, and it appears by the affidavit of Mr. Campbell, read in opposition to the motion, that in a previous action between these parties, in which judgment was rendered on the 17th of June, 1885, it was adjudged, among other things, that the said assessment was duly confirmed, and that the same had not been paid, and that the plaintiff had no cause of action against the defendant, and that the complaint should be dismissed upon the-merits, with costs. That action was brought, as appeal's from the complaint, which forms a part of the answering papers to this-motion, for the express purpose of having the assessment above referred to vacated and set aside,- and the cloud upon its title removed, and that the assessment be adjudged to be no lien on the plaintiff’s railroad, franchises and interest in the realty. It was long ago held that where proceedings upon an assessment are void upon their face, the court of chancery has no jurisdiction to-interfere and set aside the assessment or to restrain the corporation from proceeding to sell the land assessed, on the ground that-the complainant had a perfect remedy at law. Van Doren v. The Mayor, 9 Paige Ch., 388; Van Rensselaer v. Kidd, 4 Barb., 17; Heywood v. Buffalo, 14 N. Y., 534; Crooke v. Andrews, 40 id., 547.

Inasmuch as it has been decided by the court of last resort in-, the case of the People ex rel. Davidson v. Gilon, 126 N. Y., 147; 37 St. Rep., 17, that the rails, ties and tracks of a street surface-railroad are not assessable for street improvements, it would op-' pear upon the face of the proceedings that the assessment was void, and that therefore under the cases above cited, the plaintiff would be entitled to no relief in equity. The statute in regard to-sales for assessments and taxes has been altered since the case of Van Doren and similar cases were decided, and by § 926 of the consolidation act, which was taken from chapter 381 of the Laws of 1871, it is provided that all leases executed by the comptroller and witnessed by the clerk of arrears upon a sale for unpaid assessments shall be presumptive evidence that the sale and all proceedings prior thereto from and including the assessment on said lands or tenements for taxes or assessments or Croton water ratesT and all notices required by law to be given previous to the expiration of the two years allowed to redeem, are regular and according to-the terms of the statute in such cases made and provided. As the lease is presumptive evidence of the regularity of all the proceedings anterior to the sale, there would be an apparent /cloud upon the plaintiff’s title, and under the authority of the case of Scott v. Onderdonk, 14 N. Y., 9, and Allen v. The City of Buffalo, 39 id., 386; Rumsey v. The City of Buffalo, 97 id., 114,, and similar cases, there would be ordinarily jurisdiction to restrain the sale of the plaintiff's property under an illegal assessment and to prevent the creating of a cloud upon the title. Section 897 of the consolidation act, however, expressly provides that: “No suit or action in the nature of. a bill in equity or otherwise shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title, but owners of! property shall be confined to their remedies in such cases to the-proceedings under this title." This provision was held in Mayer v. The Mayor, etc., of the City of New York, 101 N. Y., 284, to be unqualified, and to apply to every class of assessments. By that section, therefore, the power of this court to grant injunctions, in cases of this character, was absolutely taken away, and,, although the plaintiff may, on its papers, make out a case which, in the absence of that section, would entitle it to relief, we are of •opinion that the plain provisions of ■ the consolidation act require us to hold that this action cannot be maintained.

We regret to be obliged to reach this conclusion, because it is apparent that the assessment in question was illegal and void, and it seems to be a hardship that the plaintiff should be compelled to submit to a sale of its premises, and of the creation of an apparent cloud upon its title, and to be obliged to assume the burden, if proceedings should be taken under the lease to oust it of its property, to show the invalidity or illegality of the assessment. Such, however, seems to be the only course left open to them. See Matter of Smith, 99 N. Y., 424-427; Chase v. Chase, 95 id., 373; Matter of Brainerd, 51 Hun, 380, 384-5; 21 St. Rep., 364.

The defendant, however, relies upon the judgment which was obtained in the former action as a bar to this action. That point it is unnecessary to discuss; if the views above expressed are sound.

We are, therefore, of the opinion that the order appealed from should be reversed, with costs and disbursements to the appellant.

Van Brunt, P. J.

I do not think that the statute making the lease presumptive evidence of certain facts in any respect .alters the position of the plaintiff from what it would have been had the statute not been passed.

. The lease is presumptive evidence of the regularity of the proceedings, but it is not evidence that the property therein described is liable to taxation, it appearing upon its face that it is not If, therefore, the property of the plaintiffs is not liable to assessment, it appears upon the face of the proceedings, and if lease executed, upon the face of the lease; therefore said lease would be no cloud.

I think that the injunction should be vacated.

O’Brien, X—For the reason that an action of this nature is iorbidden by § 897 of the consolidation act, I concur in the result.


author: Yan Brunt, P. J.

text:
    Addison D. O’Neill, Ex’r, App’lt, v. The Massachusetts Benefit Association, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Insurance (Life)—Place of contract.
    Where the application for a policy of life insurance is made in this state and the policy is received from the agent here, the place of contract is in this state and our courts have jurisdiction of an action thereon, although the policy states that it was signed and delivered in Boston.
    3. Same—Proofs of death—Limitation.
    Claimants under a policy of insurance are not required to perform impossible conditions. They are bound to use diligent efforts to comply with the stipulated conditions, but if prevented from doing so without fault or negligence on their part they are not precluded from recovering in a contested case.

      Appeal from, judgment entered on verdict of a jury directed in favor of the defendant, and from order denying motion for new trial on the minutes.
    • W. H. Hamilton, for app’lt; J. K. Hayward, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover upon a policy of life insurance or certificate of membership issued by the defendant to the plaintiff’s testatrix.

The defendant is a Massachusetts corporation organized for the purpose of carrying on the business of life insurance and having' an office and place of business at the city of - New York, having: complied with the laws of this state in respect to foreign life insurance companies.

In June, 1887, one Agnes L Jones, a resident of this state, made an application in writing to the agent of the defendant at. the company’s office in New York city for a certificate of. membership. Upon this ■ application the defendant issued certain policies or certificates.

Some time prior to her death, which occurred on the 8th of July, 1889, an application was made by one O’Neil on behalf of the assured for a change in-one of these policies to the agent of the company at the company’s office in New York city, the loss to be made payable to her executors instead of her husband. The new policy was made out and dated in Boston, sent by mail to the agent here and by him mailed apparently to the assured and received after her death by her husband. Mrs. Jones left a will which was offered for probate in July, 1889, before the surrogate of New York county, and her husband filed objections to such probate. Thereupon a contest was had which resulted in a decision in August, 1890, and a decree for probate was entered on the 16th of September, 1890. Soon after the death of Mrs, Jones the plaintiff’s attorneys gave information to the defendant of her death, the fact of their being retained as attorneys by the-executors, the offering of the will for probate, their inability to find the policy among the papers, and their expectation of finding it in the possession of the husband, and asking that blanks be furnished for making out proofs of claim. Blanks were forwarded, and in July, 1889, they were sent to' the attending physician, Dr. Fowler, at Albany, N. Y., to fill out and return, which-he failed to do. 0

In the meantime a temporary administrator had been appointed, and proofs were sent to the defendant accompanied by affidavits showing the efforts made to get a certificate from Dr. Fowler, his refusal to furnish the same, and his assigning as a reason therefor the non-payment of his bill for attending Mrs. Jones. In answer the company "through its assistant treasurer replied: “ Your favor of the 4th is at hand. Inasmuch as the proof papers you sent us-are not in such form that we can act upon them, and you state that a decision of the fact in controversy is expected shortly, I will defer considering claim as presented until I hear from you again.”

Upon the termination of the contest over the will, the company were notified and were requested to make payment; and in reply stated that only partial proofs had been filed, and that the certificate of the physician was absent, and enclosing two blanks for such certificate to be filled up, the letter reserving all rights which had been acquired, and informing the attorneys of a clause in the policy to the effect that no claim could be maintained in law.after the expiration of one year from the date of the death of the member. To this letter the attorneys replied that the policy had not come into their hands, and they were surprised to hear that there was such a clause in the policy. The plaintiff not being able to get a certificate from Dr. Fowler, commenced this action by theservice of a summons upon the superintendent of insurance. The defendant appeared and moved to have the case transferred to the circuit court of the United States, but was unsuccessful. Upon the trial the plaintiff proved substantially the foregoing facts.

At the end of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint, upon the ground that the court lacked jurisdiction, because it appeared that the plaintiff resides in New Jersey, and the defendant resides in Massachusetts, and the cause of action arose in Massachusetts; and also upon the ground that the cause of action had not matured. This motion was granted, and the complaint dismissed; and from the judgment thereupon ■entered this appeal is taken.

It is to be noticed that the case shows that the complaint was dismissed, and that the postea to the judgment-roll recites that a verdict for the defendant was directed. In the absence of the clerk’s minutes it seems to be impossible to tell which is right By what authority the clerk entered the judgment in question in the absence of the minutes of the trial we are unable to imagine.

Thedefense claimed, of want of jurisdiction, seems to be one of -the most unconscionable that any corporation has heretofore had the temerity to assert. The defendant, a foreign corporation, by the courtesy of the laws of this state, comes into this state and does its business here upon the condition that it subjects itself to the laws of this state, and upon the condition that process may be served in this state which shall be binding upon it, and having done every particle of the business in connection with the claim in this state, when called upon to pay, asserts that, it being .a foreign corporation, the courts of this state have no jurisdiction as the contract was delivered in Boston.

The application for the policy in question was made here; the policy was received here from the agent of the corporation here, and all the business was done within this state.

But it is claimed that because the testatum clause of the policy says that it was signed and delivered in Boston, that, therefore, the contract was made in Boston. We hardly think that the courts of this state will permit a foreign corporation doing business in this state to escape payment of its just obligations under so frivolous a plea.

A very considerable space in the argument of the questions presented upon this appeal is devoted to the one year limitation con-tamed in this policy. It does not seem necessary to discuss this proposition, because no such point was made upon the trial. It is; true the defense was set up in the answer, but it was not one of the grounds upon which the complaint was dismissed, the grounds, being want of jurisdiction and that the cause of action had not-matured, which latter claim was founded upon the failure to present the physician’s certificate.

It does not seem necessary to discuss the proposition that when,, thi’ough no fault upon his part, a party having a claim against, another is unable to present the particular kind of proof which the contract between them calls for, that the failure may be excused. As for example, in actions upon building contracts, it has become familiar law that although the contract requires the presentation of an architect’s certificate in order to entitle the builder to payment, yet if the certificate is unjustly withheld by the architect a recovery may be had without its production. So= in the case at bar, although the contract requires the production of the doctor’s certificate, yet if he unjustly refuses to give such evidence and proper effort is made to obtain the same, we see no-reason why the same reason should not apply and the party be excused from its production.

Some point is made in regard to the failure to produce the certificate of Dr. White. But Dr. White was not the physician who attended the deceased in her last illness, and Dr. Fowler was; and it appears that application was made to Dr. Fowler for his-certificate and he refused to give the same, assigning as a reason the non-payment of his bill.

The claimants under a policy of insurance are not required to-perform impossible conditions. They are bound to use diligent, efforts to comply with the stipulated conditions, but if prevented from doing so without fault or negligence on their part, they are not thereby precluded from recovering in a contested case.

Applying this principle to the case at bar it is evident that Dr. Fowler refused to give this certificate unjustly and improperly. The defendant was acquainted with all the facts find there is no-intimation or proof that the certificate was not procured, by the-plaintiff because of fear of what would be the nature of its* contents.

We think under all the facts the plaintiff made out a prima fade case and the motion to dismiss should have been denied.

The judgment should be reversed and a new trial ordered, with, costs to appellant to abide the event.

O’Brien and Lawrence, JJ., concur


author: Patterson, J. Van Brunt, P. J.

text:
    Henry George Dunstan, Resp’t, v. Cecil C. Higgins, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Judgment—Foreign.
    In an action upon a foreign judgment rendered by a court having full jurisdiction of the parties and subject matter, interlocutory orders made by such court cannot be reviewed nor the merits of the original con tro-' versy inquired into.

      Appeal from judgment in favor of plaintiff, and from order denying motion for a commission.

      É. S. Smith, for app’lt; Ten Eyck & Remington, for resp’t
   Patterson, J.

This action was brought on a judgment recovered .in the supreme court of judicature in England against the defendant, for an alleged balance due on a contract, by which the plaintiff undertook to build a coach of a certain kind for the defendant. There can be no question of proper personal service on, the defendant of the original process by which he was brought, into the English court, for it is virtually admitted in the twenty-second paragraph of the answer. The whole of the present defense seems to be based on a notion that injustice was done the-defendant because the English court would not allow a commission to take testimony in this country as to certain matters affecting the rights of the parties. In the present suit a motion was. also made for a commission to take testimony' as to the merits,, which was denied and the appeal coming on to be heard both from the judgment and order may be disposed of in a few words.

It is perfectly evident that the court in England acquired jurisdiction over the person of the defendant and the subject matter of the action, and that having such jurisdiction it declined to> grant a motion to take testimony on- commission and that thereafter it rendered judgment in due course of law and after issue joined against the defendant. When such a judgment is sued on here it is not for us to review merely interlocutory orders or what may be called matters of procedure, nor to inquire into the merits-of the original controversy, for that would be to destroy the whole-theory upon which judgments of foreign tribunals are made effectual here and reciprocally on which we should expect them to enforce ours in their jurisdiction on the principle of international comity. We, therefore, will not say under such circumstances that if the concrete case were before us we might have-made a different order or reached a different result. The English judgment was rendered after full opportunity to be heard, and if' it is to be enforced at all it must be on the ground that it is a. finality and not open to review and. that the merits of the original controversy are not now in any way before us. The order denying the motion to take testimony on commission was properly made in this action and the judgment appealed from must be-affirmed, with costs.

O’Brien, J., concurs.

Van Brunt, P. J.

The appellant admits that the rule has been settled in this state by the court of appeals in the case of Lazier v. Westcott, 26 N. Y., 146, against her right to supersede the judgment sued upon in the manner proposed, but hopes to-change their view if 'their attention is called to the question again ; we know of no other way in which that can be accomplished, except by an appeal from the judgment of affirmance to be entered herein. We cannot reverse a judgment merely upon such expectation. I, therefore, concur.


author: Van Brunt, P. J.

text:
    Joseph S. Spinney, Resp’t, v. William H. Fields et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Depositions—Commissioner.
    An order granting a commission to take testimony in a foreign country should not be disturbed on the ground that the commissioner is an improper person solely on proof that his name was suggested by the proposed witness.
    Appeal from order of special term, appointing James Schulze commissioner to take the testimony of a witness on behalf of plaintiff in Bolivia.

      Chas. A. Deshon, for app’lts; E. P. Johnson, for resp’t.
   Van Brunt, P. J.

This is an appeal from an order granting •a commission upon the ground that the commissioner named is an improper person.

The only suggestion upon which is based the impropriety of his selection is that his name was suggested by the witness. That the commissioner has any relations with the plaintiff or the witness is not shown; and the plaintiff’s attorney frankly told defendants that the name had been suggested by the witness. Without something more substantial than mere suspicion, in view of the difficulty in getting a commissioner, we do not think the order should be interfered with.

The order should be affirmed, with ten dollars costs and disbursements.

Patterson and O’Brien, JJ., concur.


author: Van Brunt, P. J.—The

text:
    Samuel Louis et al., App’lts, v. Julia Belgard et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Creditor’s action—Pleading.
    An action by a creditor at large of a deceased insolvent debtor to set aside fraudulent transfers of property by the deceased can only be maintained for the benefit of himself and other creditors, and the fact that it is so prosecuted must appear on the face of the complaint. It is not sufficient that such statement appear in the title of the action.
    3. Same.
    A complaint in such an action which alleges that plaintiff has a claim for goods sold and delivered, without any allegation of a sale of goods to deceased or their value or agreed price, states only a conclusion of law and is insufficient.
    Appeal from order and interlocutory judgment sustaining demurrer to complaint.

      Henry L. London, for app’lts; Eugene Fishel, for resp’ts.
   Van Brunt, P. J.—The

plaintiffs, claiming to be a creditor of ■one Simon Belgard, deceased, who was insolvent, bring this action alleging that they had a claim against deceased in the amount of $375.25 which arose on account of goods, wares and merchan-, disc sold and delivered by the plaintiffs to said Simon Belgard be-, tween certain dates; that Belgard died, and before his death fraudulently transferred his stock in trade, and the proceeds of. such transfer were received by the defendants herein, Belgard,, Eugene Fishel and Reid, who' deposited the same with the defendants, The Farmers’ Loan & Trust Go. and Leopold Fishel that the defendants Fishel, Reid or Belgard were not creditors of the deceased; and that they still held possession of the proceeds, of said transfer.

Judgment is demanded that the defendants Eugene Fishel, Reid’ and Belgard account for the said sum, etc.

A demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was sustained and from the judgment thereupon entered this appeal is taken.

An action by a creditor at large of a deceased insolvent debtor to set aside fraudulent transfers of property by the deceased can only be maintained by such creditor for the benefit of himself and other creditors interested in the estate or property of such deceased debtor, and therefore unless it appears upon the face of the complaint that the action is being so prosecuted no cause of action is set up. The complaint in the case at bar contains no-allegation or statement that it is. so brought It is true that in the title of the action these words appear; but there is nowhere any statement that the action is so brought; and it seems to. us that this must appear as distinctly as any of the other averments.

There is another ground upon which this demurrer should have-been sustained. The action can be brought by a creditor and his-claim or demand, if disputed, must be proved and established upon the trial of such action. The creditor must thus show that he-has a cause of action, and consequently must allege the facts in the same manner as if suing thereon, because his claim must be proved if disputed. The plaintiffs in their complaint nowhere-set out a good cause of action. It is manifestly insufficient in that only a conclusion is stated, that the creditor has a claim without alleging the facts upon which it arises. It is alleged that the-plaintiffs have a claim for goods sold and delivered without any allegation that the plaintiffs ever sold the deceased any goods ; neither is there any allegation as to value or agreed price; allegations absolutely insufficient to sustain a cause of action. The complaint is for this reason plainly insufficient.

The demurrer should.be sustained, with costs of appeal and the.disbursements, and with leave to the plaintiffs to amend on payment of costs and disbursements of this appeal and the costs and disbursements in the court below.

O’Brien and Lawrence, JJ., concur.


author: Patterson, J.

text:
    Henry A. Gowing et al., Resp’ts, v. Marcus Levy et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Costs—Bote of issue—Term uses.
    In June, 1889, a note of issue was filed, but no notice of trial was served. until February, 1891. The case was then waiting its turn on the calendar, and went off under stipulation, and thereafter leave to serve an amended complaint was granted on payment of costs. Held, that as there had been, no trial, a trial fee could not be taxed, and as no note of issue had been filed for any month for which the cause was noticed for trial such notice was ineffectual, and no term fees could be allowed.
    Appeal from order denying defendants’ motion to review taxation of costs.

      1. L. Bamberger, for app’lts; E. Stanton, for resp’ts.
   Patterson, J.

In December, 1891, Mr. Justice Andrews granted a motion allowing the plaintiffs to serve an amended complaint on payment of the defendants’ costs and disbursements to date, to be taxed by the clerk. On presentation of the bill of costs the clerk disallowed a trial fee of thirty dollars and five term fees of ten dollars each. The cause had not prior to February, 1891, been reached in its order on the calendar, but was awaiting its turn. An application was made to the court to review the taxation of the clerk,'and after hearing the parties, .Mr. Justice Barrett sustained' the refusal of the clerk to allow the items insisted upon by the defendant. In this he, was clearly right There had been no trial, and consequently a trial fee “was not taxable. Studwell v. Baxter, 33 Hun, 331. As to the five term fees there was enough before the court to show that the case was on the calendar under notice of trial for the first time in February, 1891, and then went off by a stipulation between the parties. These facts are shown, by the affidavit of Mr. Stanton, which very materially modifies what was sworn to by Mr. Bevy as to the case having been, duly noticed for trial for previous months, and it is also thus made to ajspear that there was no correspondence between the note of issue filed June 12, 1889, and the first notice of trial given for the February term, 1891. A note of issue not having been filed for any month for which ■the cause was noticed for trial, such notice was ineffectual, and the cause could not be moved for trial because of its service. "While but one notice of trial is required to be served in this judicial district, it is the service of that notice that callq upon the party to ascertain the situation of his cause on the calendar, and when he receives it for a specified term, he is not bound to look back upon the calendar to see if his adversary has put it on for some prior or subsequent term. Code, § 977. The order was right and must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs; O’Brien, J., concurs in result.


author: Van Brunt, P. J.—This

text:
    Walter S. Brewster, Pl’ff, v. John C. Short, Def't.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    1. Bills and notes—.Guaranty—Consideration.
    Want of consideration for the guaranty is no defense to an action against the guarantor of a promissory note where the guaranty was placed o„n the note before delivery and a sufficient consideration passed to the make:', even though the guarantor did not know of such consideration.

      2. Same—Evidence.
    In such an action the court refused to allow the defendant to prove the facts and circumstances attending the 'giving of the note by the maker, who had since died. Held, no error, as the question plainly called for transactions between the witness and the deceased.
    Motion by defendant for a new trial, a verdict having been, ■directed for the plaintiff and exceptions ordered to be heard in the ."first instance at general term.

      James Parker, for the motion; Wallace Macfarland, opposed.
   Van Brunt, P. J.—This

action was brought upon a guarantee for a note. The complaint set out the note and guarantee and delivery to one Thomas, and alleged that at the time of the making and. delivery of the note the defendant, in consideration of the loan of the sum of $1,500, made by the party receiving the note to a company, guaranteed in writing its payment. The complaint then alleged the assignment of the note and guaranty and demand of payment, etc.

The answer admitted the making and delivery of the note and guaranty, but alleged that it was given by the company for a loan by said Thomas to said company as a stockholder, solely to avert ■and prevent the failure of the company whereby Thomas’ stock would have become valueless.

Tiie defendant then denies that in consideration of said loan he ■guaranteed the note, and alleges that the guaranty was given after ¡said loan was made, and without consideration to the defendant, ¡and that defendant never received at any time any consideration .for the said guarantee. The answer also denies the transfer, etc., and alleges that the said note belongs to the executors of said Thomas.

Upon the trial the plaintiff proved an assignment pf said note for a nominal consideration by the executors of Thomas to the plaintiff, and rested.

The defendant sought to prove the facts and circumstances attending the giving of the note to Thomas. This was objected to .-as being a transaction with Thomas, who was dead, which was ¡sustained.

This was clearly right, as the question plainly called for transactions between the witness and the deceased.

The defendant then sought to prove that he did not receive any -consideration for his guaranty. This evidence was excluded as immaterial, among other grounds; as it clearly was, because under the pleadings it appeared that there was a good consideration for "the note.

It is laid down as a rule that in every form of suretyship upon promissory notes, whether by undersigning, endorsing or guaranteeing, the existence of a sufficient consideration between the maker and the payee establishes a sufficient consideration against the surety. McNaught v. McClaughry, 42 N. Y., 22. This rule is approved in the case of the Erie County Savings Bank v. Coit, 104 N. Y., 532; 5 St. Rep., 790. And it is further held that it is* immaterial whether or not the guarantor knew of the consideration passing between the maker and the payee. In other words,, if the holder can recover against the maker of a note, he can recover against the guarantor, unless such guarantee was placed upon the paper after delivery. In the case at bar consideration for the note is even alleged- in the answer, so that the maker is-liable, and consequently the guarantor is liable.

The exceptions must be overruled, and judgment directed for plaintiff on the verdict, with costs.

O’Brien, J., concurs.


author: Per Curiam.

text:
    The Consolidated Gas Company, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Injunction—Continuance.
    ■ Where a sufficient time has elapsed since the granting of a preliminary injunction within which the case could have been reached for trial and disposed of on the merits, an appellate court will not disturb an order' continuing the injunction.
    Appeal from an order continuing a preliminary injunction restraining the defendants from erecting a pier and approaches-thereto at the foot of West Forty-first street, Rorth river.

      G. A. Blandy, for app’lt; H. H. Anderson, for resp’t.
   Per Curiam.

Since the preliminary order to show cause,, which included an injunction, was granted, sufficient time has-elapsed within which this case could have been reached for trial and disposed of upon the merits.

Under these circumstances, we do not feel called upon to interfere with the disposition made of the motion continuing the injunction until the trial of the action, and to dispose of the questions presented on affidavits.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Lawrence, JJ., concur.


author: Lawrence, J.

text:
    Barbara Scholl, Resp’t, v. The Broadway Railroad Co., of Brooklyn, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)
    Negligence—Submission to jury.
    The right of the plaintifi in an action for personal injuries to have the-issue of negligence submitted to the jury when it depends upon conflicting evidence is not affected by the fact that she was the only witness, in her behalf and the defendant examined four witnesses to contradict-her.
    Appeal from a judgment entered upon the verdict of a jury,, and from an order denying a motion for a new trial.
    Action for personal injuries.

      Wm. M. Ingraham and Thos. S. Moore, for app’lt; Edward JJDunphy and Hector M. Hitchings, for resp’t.
   Lawrence, J.

The counsel for the- appellant states in his printed points, that:

“ The sole question arising upon this appeal is brought before the court by the exception taken to the denial of the motion made to dismiss the complaint upon all the testimony, ‘ on the ground that the evidence "of plaintiff’s negligence is so overwhelming that there is nothing to submit to the jury, and that the absence of the defendant’s negligence has been also proved by an overwhelming weight of testimony,' and also by .the appeal from the order - ■denying a motion for a new trial upon the ground that the verdict was" ‘ against the weight of evidence, contrary to the evidence, and contrary to law.’ ”

It has been repeatedly held, that in an action to recover damages for alleged negligence the plaintiff is entitled to have the issue of negligence submitted- to the jury, when it depends upon " conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion .among intelligent men. Payne v. The Troy & Boston R. R. Co., 83 N. Y., 572; Kain v. Smith, 89 id., 884-385.

The mere fact that the sole witness as to the manner in which ■the accident occurred was the plaintiff herself, and that the defendant examined four witnesses, for the purpose of contradicting •her, would not have justified, in our opinion, the withdrawing the •case from the consideration of the jury.

The jury were the sole judges as to the facts, and if they believed the plaintiff’s statement, rather than the evidence of the witnesses on the part of the defendant, it was certainly within their province and power to do so.

There is nothing in the case which tends to show that the jury, in rendering their verdict, were governed by sympathy ór undue Influence, and as the case was submitted to them under a charge to which no exception was taken by either party, we cannot; undertake to interfere with the conclusion which they reached.

The motion for a new trial was properly denied, for the reason that the verdict cannot be said to be against the weight of evidence or contrary, to the evidence or contrary to law; nor under the decisions, can it be said that the damages awarded to the plaintiff were excessive. Fitch v. Broadway & Seventh Ave. R. R. Co., 32 St. Rep., 376; Jordon v. N. Y. & H. R. R. Co., 31 id., 670.

The judgment and order below must therefore be affirmed, with -costs and disbursements.

Van Brunt, P. J., concurs.


author: Peckham, J.—A

text:
    The People, Resp’ts, v. Henry C. Fanning, App’lt.

      (Court of Appeals,

      Filed March 22, 1892.)

      Í. Homicide—Evidence.
    Upon the trial of defendant for murder it was shown that a witness saw a man running along the street, and soon after a woman came towards him groaning and bleeding from a cut on the left side of her neck; that he helped her into a drug store and soon after she died. This woman, Mrs. T., had been living for two years with defendant as his mistress. A friend who roomed with defendant testified that the latter had told him. that he had killed Mrs. T. by cutting or “jabbing ” her with a razor;. “ that keen narrow razor, you know,” and had thrown it away at a place.which he named, and where the police subsequently found the razor. This witness also said he had heard defendant say that if he could not. have Mrs. T. none other should, and that there was murder in his heart. The razor when found had a piece broken out which corresponded to a piece found upon the victim. Held, that the evidence showed in a satisfactory manner that defendant killed the woman.
    3. Same—Chaiíge of judge.
    The questions of fact are for the jury, yet it is proper that a judge should assist the jury in marshalling the evidence so that they may the: more readily and intelligently come to a conclusion which shall be satisfactory to themselves, consistent with the evidence and in accordance with, the law.
    Appeal from judgment of the New York general sessions convicting defendant of the crime of murder in the first degree.

      Louis Meyer, for app’lt; Henry B. B. Stapler, for resp’ts. ■
   Peckham, J.—A

full, careful and deliberate examination of the very bulky record in this case satisfies us that there is no reason for a reversal of this judgment on the ground that justice requires-a new trial. There is not a shred of evidence upon which to base-a theory of the suicide of the deceased. It is perfectly clear she-was killed by someone, and we think the evidence shows in a. satisfactory manner that the defendant is that person. Between half after nine and ten o’clock on the evening of April 18, 1891, a witness who was passing along Ninety-sixth street on his way-west from Third to Fourth avenue in New York saw a man running on the other side of the street, and very soon thereafter the-witness heard groans, and almost immediately a woman came-towards him whose cheek was bloody from a cut in or near her-neck. The woman said something to him,- and he thereupon turned and assisted her to a drug store on the corner of Third avenue and Ninety-sixth street. He was on the inside of the north-sidewalk, and went east and aided the woman by putting-his right arm under her left arm, and he noticed that it was the left side of her neck that was cut and bleeding. They proceeded to the drug store, where he seated her on a chair and in a moment she fell from it on the floor and almost immediately died. An ambulance was sent for, the signal for which was received at 9.59' o’clock, and in the course of a few moments it arrived with a., surgeon.

The latter upon an immediate inspection of the woman found that she was dead and her body was taken to the station house, where a post mortem examination was made, which revealed a wound from four and a half to five and a half inches long just below the angle of the jaw and which caused the woman’s death. The latter half of the wound was rough and jagged. What the-coroner’s physician called the external jugular was cut and the cause of her death was the hemorrhage resulting therefrom. _ The physician said from his experience a wound- made as this one-would be more likely to be made by a second party, as a person cutting himself always cuts downwards and directly across and severs the windpipe, and in this case the windpipe was not cut

The woman thus killed was one Emily Taylor, who was between 38 and 40 years of age. She had been married, but her husband died about two years prior to this time and she had been living ever since, and up to about two weeks before the killing, with the defendant as his mistress. They separated because defendant was out of work and had no means to support her and they were behind in their rent and had been notified to pay or leave. The defendant and his friend McMullin went to board at the Harlem House and had a room -together. The defendant had a wife and children, but his wife had separated from him when she learned he was intimate with this other woman, and had gone to her father’s to live. The defendant was very fond of this mistress and felt badly when he was compelled to separate from her. On the evening in question he had left his friend about 6 or 6:30 o’clock, and, as the friend says, did not return to the hotel until 12 o’clock and then he informed his friend that he had killed Mrs. Taylor. He told his friend that he had killed her by cutting or “ jabbing ” her with a razor, “ that keen narrow razor, you know,” and had then thrown it away on the plaza at Fourth avenue and Ninety-sixth street, in the bushes. The evidence of this witness was of course the most important in the case, and he was subjected to a very rigid and exhaustive cross-examination. The evidence shows quite conclusively that he was a drinking man and was frequently drunk, and the defendant was himself addicted to intemperate drinking.

This witness also said that he had heard defendant say that if he could not have or possess Mrs. Taylor, none other should, and he also told the witness, who noticed that he was seemingly low spirited, that there was murder in his heart. These conversations took place soon after they went to the Harlem House and but a short time before the killing. If the witness were believed, the case of the People was made out when taken in connection with the other evidence, and accordingly upon the argument here the defendant’s counsel laid great stress upon the inherent improbability of the story as a reason for dismissing it from the case, and •in that event he claimed there should of necessity be a reversal of the judgment. There are many circumstances in proof each of which may be somewhat slight in itself, but altogether they serve to quite strongly corroborate the evidence of the witness. The defendant and he were always on good terms and no motive has been even attempted to be shown for this infamous perjury of the witness if his account be untrue. The defendant himself can think of none and alleges none. It is quite unnecessary to-mention in detail these various collateral circumstances of corroboration, but there is one outside of and beyond them which seems overwhelming in its force.

The witness says the defendant described the razor with which he committed the crime as “ that keen, narrow razor,” and that he, the witness, had frequently seen it in the possession of the defendant, and had shaved with it himself. The defendant on the very evening of the homicide told the witness that after using it he had thrown it over in the plaza at Ninety-sixth street and Fourth avenue in the bushes. The witness had a conversation with the detectives on that same evening, and immediately or soon after the defendant’s arrest, and from what was told them by him, one of the detectives went to the plaza to hunt for a razor, and there, in almost the exact spot described by defendant to the witness, the “ narrow, keen razor ” was found. The defendant denies the whole conversation and also denies the .ownership of the razor, and denies that he ever saw it, or used it as sworn to by the witness.

It is clear, however, that the officer went to the exact spot where the razor was found, and that he went there in consequence of what he was told to do by the witness, and that he went there to find a razor. Where did the witness get the information ? He says he got it from the defendant, and there is no other source from which, as the evidence appears, he could have got it.

Again, the razor which was found was somewhat broken or nicked in the blade ; a portion of the metal was knocked off or out of it. The ambulance surgeon who made an examination of the body of the deceased immediately after its removal to the station house, discovered on the outside of and lying upon the dress, and on the left side of the breast, a small piece of steel, dull in color, edges decidedly thin and somewhat ragged, and it looked as if it might be a piece of a razor, and was about a third the size of the nail of the little finger of the witness, and when he saw the razor it impressed the witness as if it might have been a fragment thereof, not filling the entire space of the break in it, however. The witness would not say that it certainly was the case, but that inference from all the facts is most reasonable. It is quite apparent from a perusal of the whole evidence that the People made out a case which was very strong indeed.

The evidence as to an alibi on the part of the defendant would, if believed, have made out a defense. The defendant denied that he ever made any confession of the crime, and denied its commission, and gave evidence tending to show that he was in another part of the city at about the time of the commission of the crime. The evidence of .the so-called alibi was very unsatisfactory, loose and vague.

The issue thus made up between the People and the defendant was presented to the jury in a fair charge on the part of the court. The counsel for the defendant claims that the trend of the whole charge was unfavorable to the defendant, and on that account he urges that justice requires a new trial. If he mean that the issue in the case was unfairly or improperly presented by the learned judge to the jury, or that the defendant did not have the benefit of a full presentation of his theory of the case and of his defense to the charge, we think the counsel is entirely mistaken in that view.

In a criminal case we think the judge has the right, and indeed it is his duty to present the evidence to the jury in such light and with such comments that the j nry may see its relevancy and pertinency to the particular issue upon which it was admitted and thus be better qualified to appreciate its character and weight and to determine its credibility. These questions are for the jury, but it is proper that a judge should assist the jury in marshalling the evidence so that they may the more readily and intelligently come to a conclusion which shall be satisfactory to themselves, consistent with the evidence and in accordance with the law. The judge should do this in a fair and impartial manner, having due regard to the rights of the defendant, and with a serious and anxious desire for their preservation, but he should not refrain from a just, accurate and clear presentation of the evidence to the jury simply because when so presented it may fairly be regarded by the jury as bearing hardly upon the accused. A careful reading of the charge of the court in this case convinces us that the duty of the court was performed ably and fairly.

Throughout the length of his charge it is plainly perceived that the rights of the defendant were fully protected and such evidence as he had was brought to the notice of the jury. The absolute right of the jury to be the sole judges of the fact and their duty to disregard any opinion which they might think the court had formed in the case, if contrary to their own, was presented to them in language which it was impossible for them to mistake or misunderstand.

We have looked at the exceptions taken by counsel for defendant and none of them is of sufficient importance to warrant the reversal of the judgment. The evidence relating to the suicide of the husband of the deceased about two years prior to the killing of the deceased was probably inadmissible, but it was not of any importance. The fact that the deceased woman and the defendant lived in adulterous intercourse for some time prior to the death of the former was proved and the defendant admitted it, and the fact that the husband committed suicide had no bearing on the defendant’s case. There was no proof that the defendant had anything to do with it and it became a wholly immaterial circumstance. Under § 542 of the Criminal Code, which directs the court to give judgment without regard to technical errors or to exceptions which do not affect the substantial rights of a party, we must hold that the exception furnishes no ground for a new trial.

Upon the whole case we are satisfied that justice has been done and that no errors occurred which were prejudicial to the defendant and the judgment must, therefore, be affirmed.

All concur.


author: Finch, J.

text:
    The United States National Bank, Resp’t, v. Thomas Ewing, App’lt.

      (Court of Appeals,

      Filed March 22, 1892.)

    Bills and notes—Diversion—Restriction by endorser.
    Defendant endorsed a note made "by M. upon the express assurance of M. that the note would he negotiated, in Louisville, Ky., as defendant did not wish to put his name to paper which might he sued in New York, and that M. would meet it at maturity. Held, that the question as to whether the endorser intended this to he a restriction was one of fact and not of law, and should have been left to the jury.

      Appeal from judgment of the supreme court, general term, first department, • affirming judgment in favor of plaintiff, and order denying motion to set aside verdict and for a new trial.

      -Ben. L. Fairchild, for app’lt; John Notman, 'for resp’t.

       Reversing 38 St. Rep., 777.

   Finch, J.

The note sued upon was made by Madden and endorsed by Ewing for the accommodation of the maker, and by him was transferred to the plaintiff as added security upon a precedent debt. The holder parted with nothing upon receiving it, surrendered no right and no security, and made no new agreement in reliance upon' it. In its hands it was, therefore, open to the defense that made for one purpose it had been used for another, and that its diversion had served to discharge the endorser.

The trial court held that no such legal diversion had been established, and the contention here is that the evidence on that subject should have been submitted to the jury as requested by the defendant.

The endorser testified that he gave his name upon the express assurance of the maker that the note would be negotiated in Louisville,. Kentucky, in answer to the endorser’s objection that he did not wish to put his name to paper which might be sued in New York. He added: “ I finally made the endorsement on his assurance, and relying upon it that the note would be negotiated in Louisville, and that he would meet it at maturity.” There is no contradiction of this evidence unless it be in the silence of the • written cotemporaneous memorandum which provided some security for the endorser. If that raised a question of fact as to the existence of the agreement it should have been decided by the jury.

The answer made by the general term is in substance that the writing contained no restriction upon the use of the note, and the paroi proof showed only a remark by the maker as to its intended use, which did not amount to a restriction; that if negotiated in Louisville the endorser could and would have been sued in New York; and the place of discount was immaterial. But we held in Benjamin v. Rogers, 126 N. Y., 70; 36 St. Rep., 393, that “ the surety has the right to impose any limit he may choose upon his liability, and that he may always fix the precise terms upon which he is willing to become a surety, whether those terms seem to be material or immaterial.” The restriction here, does not seem to be material, and yet may have been so in the mind of the endorser, and for reasons sufficient to him. He swears that he lent his name upon condition that the note should be negotiated in Louisville. If his testimony, read in connection with the writing, left possible- the inference that no restriction was intended, the inference was one of fact, and not of law, and should have been left to the judgment of the jury.

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

All concur, except Andrews and Gray, JJ., not voting.


author: •Finch, J.

text:
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., App’lts.

      (Court of Appeals,

      Filed March 22, 1892.)

    1. Injunction.
    A multiplicity of actions at law involving claims to the same property, which a court of law' cannot solve without working injustice, founded upon one continuous and fraudulent scheme, inflicting a similar injury upon all, and different only in detail and degree, and where the legal remedy of fifty defenses to fifty replevin suits is shown to be destructive to the lien and right of the plaintiff, presents a state of facts which fully justifies the interference of equity.

      2. Same—Replevin.
    After attachments in favor of the plaintiff had been levied on property of a firm, which had obtained it and that of others by fraud, actions of replevin were commenced by the others to recover the property fraudulently purchased of them by said firm, and said property was taken thereunder, some of them claiming one portion of a garment, others other portions, the goods sold having been manufactured into garments. Held, that an action to restrain such replevin suits, and to determine the claims of the parties to the property, was maintainable, and a receiver properly appointed to take charge of the property.
    ■ Appeal from judgment of the supreme court, general term, first department, affirming orders granting an injunction and appointing a receiver.

      Edward F. Dwight, Benno Loewy, Jno. Notman and Gruber & Landon, for app’lts; Otto Horwitz and JElihu Boot, for respt.

       Affirming 41 St. Rep., 439.

   •Finch, J.

The only question presented by these appeals is whether the court, sitting as a court of equity, had jurisdiction of the subject matter of the action; for, if it had, the order appointing a receiver, and enjoining the prosecution of the suits in replevin instituted by the several defendants, was not only within the discretion of the court, but absolutely essential to the relief which it was its duty to administer. We must determine that question principally upon the allegations of the complaint No answers had been served when the motion was made, and the equities of the complaint, if such existed, were questioned only by the affidavit used to resist the motion. We may and should take them into the account, but remembering that they constitute defensive allegations and raise to some extent issues of fact which the trial only can determine. The inquiry here is whether upon the plaintiff’s complaint, read in the light of the defendants’ affidavits, there was jurisdiction in equity over the subject matter involved, and in answering that question we should recur to the principal facts about which there is no practical dispute, before considering those about which the parties seem to disagree.

The papers on both sides, assuming the truth of their concurring allegations, assert one general fact, affecting all the parties alike and in the same substantial manner. That fact is that the members of the firm of levy Brothers & Go. formed the purpose and proceeded steadily and continuously in its execution of defrauding those with whom, the firm was able to deal, by procuring their money or property without payment or accounting, and intending not to pay or account, and effecting the purpose by false representations of their financial ability, and false appearances of solvency when utterly and wholly insolvent. The plaintiff corporation loaned to the firm by discounts of their paper about $90,000 in reliance upon these fraudulent assurances of the strength and safety of their endorsements, and finding itself thus deceived attached the whole stock of Levy Brothers & Co., which it found in their possession and apparent ownership.

The writ was issued upon proof of the representations made and upon the two affidavits of Lilienthal and Hershfield which disclosed the falsity of the representations made, the insolvency of the firm, and the fraudulent character of its business dealings. The levy of the plaintiff and the disclosures of the affidavits filed aroused into activity the other victims of the same general fraud. Most of them had sold goods to the firm, induced thereto by the same or similar false representations of solvency and financial ability. These creditors chose to rescind their contracts of sale for fraud, and in so doing many of them refer to the affidavits on which plaintiff’s attachment was issued as the source of their knowledge that the representations made to them were false and fraudulent. Bach acting in liis own behalf brought a separate action of replevin against the sheriff and the fraudulent vendees to recover the specific property sold, until about fifty of such actions were brought and the writs placed in the hands of the coroner for execution. It is extremely probable that substantially the same representations which were made to the plaintiff were made whenever needed to the fifty or more vendors, and while separate proof thereof will be required, the evidence of falsity and of fraud will be common to them all, and once proved be available for each. It is evident, therefore, that the subject to be investigated is at bottom the fraudulent scheme of Levy Brothers & Co. which enveloped all the parties before the court and affected them all in the same general way, although in different degrees; and, because of that fact, that to some extent the same evidence which will establish the right of one will equally establish the right of all the rest; so that if a court of equity intervenes to prevent a multiplicity of actions only where they rest upon some common right invaded or some common injury inflicted, a doctrine to which in those broad terms I do not at present accede, there is here as the subject of investigation the one fraudulent scheme of the debtors inflicting in the same way a similar injury upon all their victims, different in degree, but springing from one general purpose worked out in one general way.

In that respect the case reminds me of Supervisors of Saratoga Co. v. Deyoe, 77 N. Y., 219, in which there had been an over-issue of notes bv the treasurer creating a false debt against the county. Bach holder could sue at law upon his notes and the county defend, but there was one scheme of fraud, common to all in its purpose, working in wrong in the same way, and differing only in its results as to persons and degree. That fact coupled with the further circumstance that the false notes could with difficulty be separated from the true, and only by an investigation which should cover the whole fraud and settle all rights in the process and so avoid a multiplicity of actions, furnished the grounds upon which the equitable jurisdiction was rested. The present case shows that remaining corresponding feature in a somewhat different, but equally conclusive way. The stock levied upon by the sheriff consisted largely of manufactured clothing into which had entered as separate elements the cloth of one vendor, the linings of another and the buttons of a third; or to the cloth which none of the vendors had sold had been added the linings of one and the buttons of another. How the angry claimants wrangled over the garments and- nearly tore them apart, the worried deputy of the sheriff describes. The complaint shows that these claimants have directed the coroner to take upon his writs the whole manufactured article into which the goods of the respective creditors have entered, so that there may be three claimants for the same coat, or one who merely furnished the buttons may take it wholly from the attaching creditor. A court of law cannot divide the article, and so follows a rule, not unjust to the fraudulent debtor, but inequitable as against the attaching creditor, and very likely to be so as to some of the vendors ; while a court of equity can turn the garments into money and distribute their value in just and fair proportion. How far these complications extend we cannot accurately know in advance of the trial, but they are alleged in the complaint as affecting generally the whole manufactured stock.

On this state of facts there is sufficient reason for maintaining the equitable jurisdiction. A subject-matter is presented within its adjudged and defined boundaries. A multiplicity of actions at law involving conflicting claims to the same property which a court of law could not solve without working injustice, founded upon one continuous and fraudulent scheme, inflicting a similar injury upon all and different only in detail and degree, and where the legal remedy of fifty defenses to fifty replevin suits is shown to be destructive to the lien and right of the plaintiff, presents a state of facts which fully justifies the interference of equity.

But in behalf of some of the defendants it is insisted that there are specific circumstances lying at the foundation of a few of the replevin suits which take those cases out of the doctrine asserted, and that as to the plaintiffs therein made defendants in the equity suit there is no equitable cause of action. One or more of the defendants intimate in their affidavits that the property replevied by them was delivered to Levy Brothers & Go. to be sold on commission, and never passed into their ownership at all; and one or more of the defendants assert that there is no dispute as to the identity of the manufactured goods which they claim, and no conflicting title thereto alleged by any one except the plaintiff in the attachment These facts, if satisfactorily established, may possibly prove to be a defense to the action as against such defendants. But these facts are new matter, alleged outside of the complaint, as to which the plaintiff will have a right to be heard. They amount to a denial in some degree of the plaintiff’s general allegations, and may establish a defense without overturning or dislodging the jurisdiction. It often happens that jurisdiction over the subject-matter is followed by a refusal of the equitable remedy to spme or all of the plaintiffs, or by a judgment dismissing the complaint as to some or more of the defendants. The plaintiff may come into court with an equitable cause of action plainly within the jurisdiction, and yet so fail on his facts or be confuted by the defense as to lose all right to equitable relief. But that result in general must await the developments of the trial. It is rare that the court is justified in turning the plaintiff out of court on a preliminary motion founded upon affidavits.

The present complaint shows that the firm of Levy Brothers & Co. was composed of. three persons; that one of them has absconded and cannot be found ; that another is sick and has lost his mind ; and that the third came into the firm after almost all of ■the fraudulent purchases were, made; and that the plaintiff is necessarily ignorant of the character and circumstances of the purchases made by the firm. It is quite apparent that no one will defend the replevin suits unless it be. the sheriff acting in behalf of the plaintiff, and it may. very well be that the latter, while now unable to contradict the affidavits, may come to the trial prepared to do so. The complaint also alleges that the seizure by the coroner was far in excess of the value of the property claimed in the replevin suits.

So far as any of the defendants put themselves outside of the general scheme of fraud, and claim that there was no sale to the Levys at all, their affidavits are quite unsatisfactory. Mr, Gruber represents twelve firms and one individual and says that some of them, without naming which, “ will contend ” that the goods were simply consigned. Mr. Ewing deposes that his goods were delivered “ upon memorandum only,” but does not disclose the memorandum. He adds- that they were “ for inspection ” and had not been accepted.” Possibly if we had the facts instead of the affiant’s conclusions we might think there had been an acceptance. All the other cases stand upon the general fraud authorizing a rescission, and while.it may be that some of the defendants will be able to show that they claim nothing but unmanufactured goods, perfectly identified and as to which there are no conflicting claims, yet the fact will not affect the general jurisdiction acquired, but may influence the judgment in the end to be rendered. Something of that kind appears to have happened in Ostrander v. Weber, 114 N. Y., 96; 22 St. Rep., 979, where the course of the trial evolved a purely legal right of one of the parties to a few distinct articles of the property, and the court ordered it to be sold separately. No harm can come to the defendants who shall show themselves to have a pure, legal right which the equities in the complaint do not touch. If there proves to be no conflict over the goods remaining unmanufactured and no equitable cause of action as to them, the court may dismiss the complaint to that extent and allow the replevin actions to proceed. Any injury from delay will be likely to enter into damages for the detention. Or, .•as in the case cited, the court may order a separate sale of identified parcels.

But it is further suggested that neither the sheriff nor coroner are made parties. They may be brought into the litigation, and should be so brought in as parties both in order that they may be bound by the judgment and be protected by it

A further objection is made that the attaching creditor has no right •or title in or to the property attached and so has no standing in a -court of equity to raise any question; and we are referred to the language of the late chief judge in Scott v. Morgan, 94 N. Y., 508, which described the position of the plaintiff in an execution. As ' :.a statement of the legal right of the execution creditor no fault is "to be found with it. The special property in the goods levied upon is in the officer, who holds a legal title for the protection of his levy, hut he holds it for the benefit of the levying and attaching -creditor, who thereby obtains an interest in and a lien upon the property. He is the real person interested and equity, which never suffers itself to be misled by a name or baffled by a definition, but deals with the substance and truth of things, can have no difficulty in recognizing the existing interest and lien of the ■creditor because it is worked out and made effectual through a legal title in the officer.

Our conclusion, therefore, is that there was jurisdiction to make -the order and it should be affirmed, with costs.

All concur.


text:
    Thomas Rogers, Resp’t, v. Alonzo T. Decker, App’lt.

      (Court of Appeals,

      Filed March 22, 1892.)

    ■Clubs—Trustees—Liability of—Verification of answer.
    The liability of the trustees of a club organized under chapter 368, Laws 1866, for its debts is original and concurrent with that of the corporation and not of a penal nature, and an answer to an action to enforce such liability must be verified. ■
    Appeal from judgment of the supreme court, general term, fiirst department, reversing order of special term compelling plaintiff to accept an unverified answer.

      Ihll, Chandler & Seymour, for app’lf; James C. Murray, for xesp’t

         Affirming 41 St. Rep., 673.

   Finch, J.

This action was brought to enforce the liability of the defendant as trustee of a club incorporated under the law of 1865 (chap. 368). Section 7 of that act provides that such trustees shall be liable “ for all debts due from said company or corporation contracted while they are trustees, provided said debts •are payable within one year from the time they shall have been ■contracted, and provided a suit for the collection of the same .shall be brought within one year after the debt shall become due and payable.” The complaint contained appropriate allegations to establish the defendant’s liability under that statute, and was duly verified. The defendant served an unverified answer which his adversary refused to accept. The defendant thereupon moved.' for an order requiring the plaintiff to accept the answer and the-special term granted the motion upon the ground that the action, was penal in its character, and upon the authority of Hall v. Siegel, 7 Lans., 206, affirmed in. this court without an opinion. 53 N. Y., 607.

If that is the true' nature of the action the unverified answer-was sufficient and should have been accepted. Code of Civ. Bro., §§ 523, 837. On appeal to the general term the order was. reversed, that court holding that the action was not penal in. its nature, and refusing to follow in that respect the case cited.

The opinion of the general term shows very clearly the analogy between such a canse of action as was here pleaded and that, arising under the usual corporate acts which' make the stockholders liable for debts of the -company until the capital has been fully paid in. It shows that in such case the liability is not so» much created by the statute as retained and preserved under the corporate form; that but for the latter the stockholders would have been liable as partners, and the statute continued that, primary and original liability until the requisites of a corporate-exemption were fully supplied. Corning v. McCullough, 1 N. Y., 47.

The opinion further distinguishes, as was done in Wiles v. Suydam, 64 N. Y., 173, between such a cause of action and one founded upon a statutory provision which "makes officers liable for failure to file a report, or for its falsity, in which case we have held that the liability is a penalty imposed by the statute for disobedience to its' commands. Gadsden v. Woodward, 103 N. Y., 244; 3 St. Rep., 102. In one case the original and primary liability of the members of the association, which would have existed but for the incorporation, is; as to some of them, retained and perpetuated notwithstanding the incorporation ; in the other that, primary liability has been lost and destroyed by force of the completed incorporation, but is created anew by the statute in the form of a penalty for specific acts of disobedience. Under the-statute of 1865 no new liability is created; a primary and original obligation is continued and retained. Nothing is required or forbidden to be done as the basis of a penalty for disobedience,, but the corporate form is not permitted to destroy the associate, liability.

We have given attention to the argument made in answer to-the conclusion of the general term. One test which the appellant proposes is the inquiry whether the liability incurred is in the nature of that of a surety, and requires that the creditor shall first exhaust his remedy against the corporate assets. He argues that, if the liability is. on contract it always has that character, and depends upon that condition which exists even when not in terms-imposed by the statute, while, if the liability is in tort it is primary, and may exist without such condition. But the condition may be attached by the legislature as well to the penal liability as to that arising on contract, and I am not prepared to admit, that the courts may attach it when the legislature does not- Manufacturing Co. v. Bradley, 105 U. S., 175. I am unable to see that it has any necessary relation to the one form of liability more than the other, and so it can hardly serve as a suitable test. There is reason for the omission of any such preliminary condition in the act of 1865. The corporation to be formed has no capital stock, and may not have much of any property. The remedy against it would be very doubtful and precarious, and so of little .utility to creditors. Their safety could only be secured by limiting the scope of the corporate character conferred so as to leave to some extent the normal associate liability undisturbed. The act does that in respect to such stockholders as become trustees, and leaves them under the specified conditions unprotected by the ■corporate character.

Our affirmance of Hall v. Siegel, supra, without an opinion made us responsible only for the point decided, and did not make us guarantors of all the reasons given or opinions expressed. It •was not essential to the decision that the question whether the action was or was not for a penalty should be determined, and our affirmance did not require an approval of the opinion expressed •upon that subject. The sole question involved was the construction of the statute upon the point whether the condition imposed upon the creditor of bringing an action upon his- demand within ■one year meant an action against the corporation or one against the trustee sought to be made liable. The court held the latter •and we affirmed the decision. It stood upon the language and purpose of the act, and we are still able to approve it, although -at the end of many good reasons an incorrect one was needlessly added.

We think, therefore, that the order of the general term was xight and should be affirmed, with costs.

All concur.


author: Haight, J.

text:
    Frank Johnson, Resp’t, v. The Netherlands American Steam Nav. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    Master and servant—Negligence—Co-servant.
    Plaintiff was a gangwayman in the émploy of L., a stevedore, who was engaged in unloading a vessel for defendant for a stipulated price per ton, defendant to furnish the steam power and a man to run the winch. The hoisting rope having fouled plaintiff was clearing it, and gave direction to the winchman to “ come back,” but instead he went ahead winding the rope up and crushing plaintiff’s fingers. Reid, that the winchman was not a servant of L., and so a fellow servant with plaintiff, and that defendant was liable for the injury.
    (Follett, Ch. J., Parker and Landon, JJ., dissent.)
    Appeal from a j udgment of the general term, second department, affirming the judgment entered on a verdict.

      Joseph Á. Shoudy, for app’lt; Charles J. Patterson, for resp’t

       Affirming 33 St. Rep., 916.

   Haight, J.

This action was brought to recover damages for a personal injury. Upon the trial there was some conflict in the testimony, but as settled by the verdict the facts are as follows r The plaintiff was a gangwayman in the employ of one Lithman,. a stevedore, engaged in unloading the defendant’s steamship, P„ Calland. Under the agreement the stevedore was to be paid a-, stipulated price per ton for unloading the vessel, thé defendant to-furnish the steam power and a man to fun the winch.' The winch-man furnished by" the defendant was a sailor. The plaintiff, as. gangwayman, gave the signal to the winchman to go ahead or-back up as the persons engaged in unloading the vessel might require. The men in the hold of the vessel had loaded nine bags-of coffee, and the plaintiff had given the signal to the winchmarb to go ahead. This was accomplished by‘the rope winding around, the drum of the winch. The hoist had proceeded until the cargo-had nearly reached the combing of the vessel, when the rope ran off from the drum of the winch onto the axle. The winchman then, stopped and called the attention of the plaintiff to the fact that, the rope was foul upon the axle "of the winch. The plaintiff then supported the hoist by means of a burton hook, after which betook hold of the rope to lift it from the axle onto the drum, but. in order to do this had to have the winch turned back so as to loosen the rope. He, therefore, gave direction to the witichmani to.“come back,” but instead of turning back the winchman went, ahead, drawing the hand of the plaintiff against the" drum cutting-off some of his fingers. .

It is claimed that Lithman was an independent contractor having charge of all the men engaged in unloading the vessel, and! that the defendant is not liable for the negligent act of servants-working under his direction. The question is as to whether thewinchman was the servant of Lithman, and consequently the co-servant of the plaintiff. Lithman testified that he was paid by the ton; that the vessel furnished the steam power and a winch driver. This is the evidence as to the contract with the defendant. It does not appear that he had the power to order, direct,, discharge or control the winch driver farther than to signal to him by way of the gangwayman when to hoist or lower, go ahead oreóme back. It consequently does not appear to us that the winch-man could be regarded as the servant of Lithman.

It is quite apparent that - it was the intention of the defendant", to retain charge of the steam power and winch and operate it, through its own servants and employees. And the fact that thewinchman received orders from the plaintiff when to hoist and whem to lower under the circumstances of this case does not operate to-change his relations to the defendant as its servant. Sullivan v. Tioga Railroad Company, 112 N. Y., 643, 647; 21 St. Rep., 827; Sanford v. Standard Oil Co., 118 N. Y., 571; 29 St. Rep., 855 Kilroy v. D. & H. C. Co., 121 N. Y., 22; 30 St. Rep., 724; Butler v. Townsend, 126 N. Y., 105; 36 St. Rep., 508.

The judgment should be affirmed, with costs.

All concur, except Follett, Oh. J., Parker and Land on, JJ.^ dissenting.


text:
    Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.

      (Court of Appeals, Second Division,

      Filed March, 22, 1892.)

    Leíase—Surrender—Leasing to another person.
    Id an action for rent of premises after defendant had abandoned them: * the evidence as to whether there was a surrender and acceptance was conflicting. The plaintiff, landlord, had refused to accept the surrender of' the premises from the defendant and told him he should hold him for the-rent; and that if he left them he should rent them for his account. Subsequently defendant left the keys on plaintiff’s desk. Held, that under the facts there was an implied authority to relet the premises by the landlord as the agent of his tenant, and a right to recover the balance off" rent.
    (Follett, Ch. J., dissents.)
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a verdict.

      P. Q. Eckerson, for app’lt; Charles M. Demand, for resp’t.

       Affirming 33 St. Rep., 961.

   Haight, J.

This action was brought to recover rent.

On September 30, 1886, the plaintiff leased to the defendant a: room in the building known as Ho. 50 Broad street in the city of Hew York for the term of three years and seven months. The* defendant entered into possession of the premises under the lease- and occupied them until the latter part of May, 1888, at which time he vacated them and went away. After leaving the premises, he sent the keys by another person to the plaintiff. The keys were tendered to the plaintiff but he refused to receive them, and. they were left upon his desk.

The plaintiff testified to a conversation with the defendant, which occurred before he left the premises, in which the defendant asked him to take the premises off from his hands; that the-plaintiff refused to do so and told him that he should hold him. for the rent, but would lease the premises for his benefit.

After the defendant left the premises the plaintiff went and examined the same and found the doors unlocked. He then returned to his office, took the keys from the desk, locked up the-premises and subsequently rented them to another person. The-defendant had paid the rent up to June 1, and this action was-brought for that which subsequently accrued. The recovery was for the rent accrued less the amount received from the new* tenant.

The defendant claimed that there was a room in the building in which gambling was carried on and that in consequence there was a breach of the covenant of quiet enjoyment on the part of the plaintiff. But upon this issue the evidence was not sufficient, to establish such breach, and the trial court so instructed the jury and no exception was taken thereto.

Upon the trial and after the plaintiff had rested, the defendant moved to dismiss the complaint on the ground that the plaintiff; had accepted a surrender of the premises by leasing them to another party. This motion was denied and an exception taken.

The acceptance by the landlord of the surrender of leased premises would prevent the recovery of rent not already due, land if the landlord takes possession of such premises so surrendered .and relets them, to other parties he will be deemed to have accepted a surrender unless there are facts rebutting this inference.

We must therefore refer to the evidence for the purpose of determining whether the plaintiff intended to accept a surrender. As we have seen, he refused to accept a surrender of the premises at the interview he had with the defendant. He then told him that he should hold him for the rent; that if he left the premises he would rent them for and on his account. It was under these circumstances that the defendant left the premises and sent the keys by another person to the plaintiff. The plaintiff in reletting the premises did only that which he had promised and had the' right to do. He could have left the premises vacant during the unexpired term of the lease and required the tenant to pay the rent as it matured. The reletting of the premises for the benefit of the rtenant relieves him in part of the burthen that he otherwise would have had to bear. He is therefore a gainer rather than a loser by reason of such reletting. It may be true that such reletting would -operate as an acceptance of a surrender of the premises unless there is an agreement, express or implied, that such reletting may .be made. But under the facts disclosed in the testimony to which we have referred, such agreement or authority is implied. McAdam on Landlord and Tenant, §§ 205-210; Morgan v. Smith, 70 N. Y., 537-546; Bloomer v. Merrill, 1 Daly, 487; McKensie v. Farrell, 4 Bosw., 192.

It is claimed that the action should have been for damages and mot for rent accrued. But the relation of landlord and tenant had mot ceased to exist. The reletting, as the plaintiff claims, was .for the defendant and on his account The plaintiff but served the defendant as his agent in the transaction.

In the case of Hall v. Gould, 13 N. Y., 127, the landlord had retaken possession of the premises in consequence of a breach of the lease by the tenant, who had covenanted not to use the premisses for any disreputable business. In that case the re-entry of the landlord was held to terminate the lease, and that rent as such ■could therefore no longer accrue to the lessor, but he had his right of action for damages for the breach of the covenant That ■case has no application to the question under consideration.

The judgment should be affirmed, with costs.

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


author: Landon, J.

text:
    John I. D. Bristol, App’lt, v. The Equitable Life Assurance Society of the United States, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    ■Contbagt—Implied—Communication of new system of soliciting Insurance.
    Plaintiff communicated a system of soliciting life insurance to defendant in confidence to induce it to employ him, which it declined to do, bufe acted on the suggestion of plaintiff and adopted his system, which was not copyrighted. Held, that this did not give plaintiff a cause of action against. defendant.
    Appeal, from judgment of the supreme court, general term, first department, affirming judgment sustaining demurrer to complaint and dismissing such complaint.

      B. J. Moses, Jr., for app’lt; Charles B. Alexander, for resp’t.

       Affirming 22 St. Rep., 515.

   Landon, J.

Assuming, without deciding, that if the defendant has wrongfully appropriated or converted to its own use the plaintiff’s property or infringed upon his property rights or privileges and has without right made use of them, it ought to respond to the plaintiff for such use and should render an account to him respecting the same, the question arises upon this complaint whether the subject of the appropriation and use constituted property or property rights of the plaintiff.

The plaintiff does not allege that he was the exclusive possessor of the system. His letter to the defendant instances several companies which have used it to advantage, and states that “ underlying the whole system is a common sense plan of advertising.”

Its use seems to be its disclosure. He does not complain of the use that the defendant has made of it, but seeks to recover for it as if defendant had used his property. His case is unlike-those in which the injunctive process of the court is sought to restrain the disclosure of a secret or the publication of a letter which may prove injurious to business or character.

Nor is his case like that of one who writes a tale or treatise, or play, or composes a piece of music, or paints a picture, or makes-an invention; in such cases there, is a production which can by multiplying copies be put to marketable use and its exclusive-ownership be easily preserved and protected. Whoever infringes takes benefits or profits which otherwise would naturally come-to the producer. Here the defendant has taken from the plaintiff no profits nor diverted them from him.

Without denying that there may be property in an idea, or trade secret or system, it is obvious that its originator or proprietor must himself protect it from escape or disclosure. If it cannot be sold or negotiated or used without a disclosure, it would seem proper that some contract should guard or regulate the disclosure; otherwise it must follow the law of ideas and become the acquisition of whoever receives it. Peabody v. Norfolk, 98 Mass., 452.

The allegation of the complaint that the defendant disclosed the system in confidence to the defendant is vague. It does not necessarily mean that the defendant agreed not to use it; it may mean something else. Defendant is at liberty to conduct its business in its own way; it obtained a valuable hint from the plaintiff and assumed no legal obligation to pay the plaintiff if it should, conclude to act upon it.

Plaintiff communicated his system without marketing it. Tfe was valuable to the defendant, But what has plaintiff lost thereby ? He .alleges nothing more than the loss of the sale to a •single party who refused to buy. The system we may assume was valuable to those who had insurance to sell. Plaintiff does not allege that he had any to sell. He does not allege that his •system was marketable or might have been made so but for the use made of it by defendant.

A. wishes to sell his house and lot B. tells him in confidence that C. desires to buy it, and B. solicits employment to negotiate the sale. A. declines, but acting upon B’s communication meets

0. and himself negotiates and closes the contract of sale. B. •has no cause of action against A. He had information which he hoped to market, but he parted with it without finding any market.

The plaintiff himself communicated his system to the defendant to induce it to employ him, and thus used it as an attractive •adjunct to his own self-commendation or in corroboration of it. He could not induce the 'defendant to “ adopt this system and the writer with it.” Yet as the defendant acted upon the hint the plaintiff gave to it, and found it profitable to do so, the plaintiff .asks the defendant to pay him a percentage of its profits.

We do not think the complaint states a cause of action.

Judgment should be affirmed.

All concur, except Yanjst, J., not sitting.