text:
    ROBERT H. FENN, Plaintiff, v. PHILIP H. CURTIS and others, Defendants.

      Fraudulent representations — liability of one falsely representing himself to he an officer of a corporation when no corporation in fact exists.

    After the defendants and others had held a preliminary meeting with a view to forming a manufacturing coporation for the purpose of making and selling artificial stone, but before any articles of association had been prepared and filed as required by law, three of them issued circulars, signed by them as president, vice-president and secretary, respectively, stating that the Rochester Frear Stone Company had been organized for the aforesaid purposes with the necessary capital, and that they had been chosen to the offices above named. After the issue of these circulars the plaintiff purchased from the defendant McConnell certificates, purporting on their face to he shares of the capital stock of “ The Rochester Freár Stone Company,” believing that they represented shares of the stock of the said company, and that the same was duly organized under the laws of this State.
    In an action by the plaintiff to recover damages for the fraudulent statement of the defendants, whereby he was induced to purchase the pretended certificates of stock:

      Held, that the acts of the defendants in assuming to he and to act as the officers of a duly incorporated company, and in issuing certificates of the capital stock thereof, contributed largely to enable McConnell to sell the pretended certificates to the plaintiff, and rendered them liable to him for the damages thereby sustained, irrespective of any intent on their part to defraud him in particular.
    That it was not necessary to show that the defendants were interested in the sale of the stock by McConnell, or that they were in collusion with him.
    That the allegation contained in the complaint that the representation was made to the plaintiff was proved by the fact that it was contained in the circular, signed by the defendants and generally distributed, as well as by the statements contained in the certificates of stock issued by the so-called company, with the knowledge and consent of the defendants.
    MotioN for a new trial on exceptions ordered to be beard in tlie first instance at the General Term, after a verdict directed in favor of the plaintiff.
    The complaint alleged that the defendants, for the purpose of cheating and defrauding the plaintiff, represented that they were officers of a company known as the Rochester Frear Stone Company ; that said company had been duly organized and incorporated, and that the capital stock subscribed was $200,000; that there was no such company; that the representations were false, and were made with intent to deceive plaintiff and to induce him to purchase shares of stock, and that the shares of stock were spurious and worthless; that the plaintiff did purchase of the defendant McConnell sixty shares of the said company’s stock, and paid therefor in all $2,100, in three purchases, and did so relying upon the representations made by the defendants, and that plaintiff sustained damage in the sum of $2,100 and interest, from the date of the respective purchases, for which judgment was asked.
    The certificates of stock were in the following form :
    “Capital, $200,000. m»'}

      “ Organized u/nder the Laws of the State of Nemo Yorlt. The Rochester Fream Stone Company No. 15. Ten Shares.

      “ This is to certify that Robert H. Fenn is entitled to ten shares of one hundred dollars each in the capital stock of the Rochester Frear Stone Company. Transferable personally, or by attorney, on the books of said company, accompanied bv the surrender of this certificate.

      “ Rochester, N. Y., August 9, 1871
    “P. H. CURTIS, See. and Treas.

    “ O. H. Mason, President.”

      “ For value received, I hereby assign and transfer unto shares of stock of this company, and authorize and request the same to be transferred on the books thereof.”
    A circular was also issued by the defendants, which states among other things as follows, viz:
    “ Office of the Rociiestee Feeae StoNE Go., 1
    “ No. 58 Buffalo St., Powebs’ BuildiNGS, V “ Woexs cob. West ave. AND CaNAl st., Roohestee, N. Y. )
    “ This company is organized under the laws of the State of New York, for the purpose of manufacturing and soiling artificial stone, under the patents granted by the United States, February 4, 1868, to George A. Frear, of Chicago. * * *
    “ The officers of the company will take pleasure in exhibiting, at their office, specimens of the Frear stone as well as photographs of buildings constructed of the stone, which have been erected in Chicago, Toledo, Buffalo, New Orleans, etc., during the last three years, together with the certificate of architects and capitalists in those cities.
    “C. H. MASON, President,

    “EDGAR HOLMES, Vice-Predé,

    “P. H. CURTIS, See. and Treas?

    Evidence was given tending to show that about, or prior to the month of April, 1871, the defendants and others had purchased a certain patent right of a process of making an article of merchandise known as an artificial stone called Frear stone, and proposed to organize a company to manufacture the article for building purposes ; that the parties had a meeting at the house of Arestarchus Champion, at which time officers were elected, a certificate drawn and signed by all, except Mr. Champion who was soon after taken sick, and the certificate remained in that condition until it was (after Champion’s death) filed in the Monroe county clerk’s office, and also in the proper office in Albany.
    In February, 1873, a new certificate was drawn, signed and duly filed. The company recognized the stock certificates as valid which were issued prior to such filing in February, .1873.

      J. S. Gcurlock, for the defendants.
    In order to maintain an action for deceit by means of false representations, it is always necessary to aver and prove an intent to deceive, and whenever a party actually believes what he asserts to be true, he is not liable, although it turns out that what he affirmed was false in fact. (Weed v. Case, 55 Barb., 534, 547; Wakemcun v. Daley, 51 N. Y., 27; Dennett v. Judson, 21 id., is criticised and questioned; Chester v. Comstock, 40 id., 575, 576, note; Marsh v. Father, 40 id., 562; Nelson v. Dulvng, 46 Iiow., 355.) These defendants, Curtis, Mason and Holmes, did not sell any stock or shares to plaintiff; the proper officers, Mason, president, and Curtis, secretary, simply at request of McConnell, signed a certificate or script, which was merely evidence given to Fonn of his existing right in their company’s property. (Burr v. Wileoao, 22 N. Y., 551; Kelsey v. Northern L. O. Co., 45 id., 505.) The plaintiff should not be allowed to rescind live years after he bought his stock, and when he did not offer to do- so until more than five years after he discovered that no such company was organized. (Taylor v. Fleet, 4 Barb., 95 ; Emmet v. Heed, 8 N. Y., 312; Wan Kleechv. Be Boy, 37 Barb., 544; Ketletas v. Fleet, 7 Johns., 324; Bronson v. Winan, 10 Barb., 406; S. C., 8 N. Y.. 182; Cobh v. Hatfield, 46 id., 533; Bidsley v. Ferguson, 49 id., 623; Hunt v. Singer, 1 Daly, 209.)

      H. H Woodward, for the plaintiff.
    The false representations of the incorporation of the company moved the plaintiff to make the purchases of stock, and without them he would not have purchased it. And it was not necessary to show that the defendants wore benefited by them, or in collusion with the party so benefited. (Hubban'd v. Briggs, 31 N. Y., 518; Craig v. Ward, 36 Barb., 378; Bennett v. Judson, 7 E. P. Smith, 238; Cross v. Saokett, 6 Abb. Pr., 247; 2 Bosw., 617; 16 How. Pr., 62; Mead v. Mali, 15 id:, 347; Herod v. Bodma/n, 16 Ind., 241.)
   Talcott, P. J.:

This is an action against the defendants for defrauding the plaintiff, by inducing him to purchase certain pretended certificates of stock in a certain pretended company known as ‘ ‘ The Rochester Frear Stone Company,” which the defendants as officers of the said pretended company, represented was duly organized and incorporated under the laws of the State of New York; whereas there was in fact no such corporation, and the pretended shares of stock in said corporation had no existence in fact, and the certificates thereof were spurious and worthless.

The trial was had at the Monroe Circuit and at the close thereof the trial judge directed a verdict for the plaintiff for the amount which he had paid for the said certificates to one of the defendants, McConnell (who did not answer in the case), with interest from the time of payment, and ordered the exceptions to be heard at the General Term in the first instance.

It was shown that there was no such incorporation at the time when the plaintiff was induced to and did purchase the certificates of shares. The evidence showed that the defendants and others had had a preliminary meeting with a view to forming an incorporation under the manufacturing laws, but that accidently or otherwise, no certificate such as is required by the law which authorizes the formation of corporations for manufacturing purposes was at that time signed, acknowledged or filed; nevertheless the parties assumed to be a company and elected officers and opened an office and issued circulars advertising their business.

The circulars issued were signed by the defendant Mason as president, Holmes as vice-president, and Curtis as secretary of the said company. The circular stated that the company was “ organized under the laws of the State of New York for the purpose of manufacturing and selling artificial stone under the patents granted by the United States, February 4, 1868, to George A. Frear. of Chicago.” The circular also stated that a company was organized at Rochester with the necessary capital to manufacture the Frear stone at that place, and that the defendants (with the exception of McConnell) were chosen to the offices named as the officers thereof, and set forth numerous facts calculated to show that the said Rochester Frear Stone Company ” was likely to be engaged in a thriving and prosperous business.

The circular, so far as appears, was without date, but was shown to have been issued and generally distributed before the time when the plaintiff purchased from McConnell the pretended shares in question. The certificates of stock which were issued and purcliased by the plaintiff, on their face purported that the company was organized under the laws of the State of New York, and purported to be certificates of shares of the capital stock of an incorporated company. The defendants moved for a nonsuit on the ground that the plaintiff had not made out any cause of action against the defendants who had answered, and also at a subsequent stage of the case asked leave to submit to the jury the question of “ fraud and of the intent of the parties,” by which we understand that the defendants claimed that they had no intention of defrauding the plaintiff, or any other person, by the pretense that there was an existing corporation known as the Rochester Frear Stone Company,” or that they were officers in such corporation, and that they desired to have that question submitted to the jury.

The court denied the motion for a nonsuit, and refused to submit the question as to the intent to defraud, to the jury. The court ho] ding, as appears from its intimations in the case, that the assumption by the defendants to be incorporated under the name of the “Rochester Frear Stone Company,” and to issue certificates of stock in such a corporation, when, in fact, there was no such corporation, was in and of itself a fraud, which made them liable to such persons as should thereby be induced to purchase the fictitious stock, irrespective of any intent to defraud the plaintiff in the case.

We think the views of the trial judge as to the liability of the defendants were correct, and their liability was irrespective of any fraudulent intent to injure the plawMff in particular.

Assuming to be and to act as the officers of a duly incorporated company, and issuing certificates of capital stock of the pretended corporation, they being aware of the fact that the corporation had no legal existence, most certainly contributed in a large degree to enable McConnell to accomplish the fraud in selling shares of the pretended stock to the plaintiff, who testified in effect, that at the time of the purchase of the stock he believed that the Rochester Frear Stone Company was duly organized under the laws of the State, and would not have purchased the stock unless he had so believed. (See Cross v. Sackett, 6 Abb. Pr., 247; S. C., 2 Bosw., 617, and 16 How. Pr., 62; Mead v, Mali, 15 How. Pr., 347; Addison on Torts, 1009, 1010, 1011; Scott v. Dixon, 29 L. J. [Ex.], 62; Bedford v. Bagshaw, id., 64, note; Warner v. Daniels, 1 W. & M., note 90.)

The statute authorizing the formation of manufacturing corporations, contains certain provisions in reference to the actual payment of the capital represented by the shares of stock, and other provisions upon which the purchaser of stock in such a corporation has a right to rely, as tending to the security of his investment.

It was not necessary to show that the defendants were interested in the sale of the stock by McConnell or that they were in collusion with him. (Hubbard v. Briggs, 31 N. Y., 518.) The allegation that the representation was made to tha plaintiff was proved by the fact that it was contained in the circular signed by the defendants and generally distributed, as well as by the statement contained in the certificates of stock issued by the so-called company, with the knowledge and assent of the defendant*.

The trial judge stated to the counsel at the close of the case that he would allow the counsel to go to the jury upon any question of fact which was disputed, but the counsel for the defendants did not in any way avail themselves of the invitation. Under it they might have had submitted to the jury, if they conceived that the evidence left any serious doubt on the subject, the question whether the language used by the defendants in their circular and certificates of stock imported a representation that the “ Rochester Frear Stone Company ” was a duly incorporated company, arid whether the language used by them in their circulars and in their certificates of stock was designed or calculated to induce purchasers to believe that such was the fact. Or, they might have had submitted to the jury the question, upon which there appeared to be some conflict of evidence, whether the plaintiff recognized “ The Rochester Frear Stone Company,” which was subsequently incorporated, as in effect the same company in which he had pirrchased the stock, by attending and taking part in its meetings,'etc.

The numerous exceptions taken in the course of the trial, to which our attention has been called, are answered by the views we have hereinbefore expressed as to the general merits of the case, or are so unimportant that substantial justice does not require that a new trial should be granted by reason thereof.

We therefore order that a new trial be denied and that judgment be entered for the plaintiff on the verdict.

Hakdin, J., concurred; Rumsey, J., not sitting.

Ordered accordingly.


source: Caselaw Access Project

author: Talcott, P. J.:

license: Public Domain

text:
    JEROME BABCOCK, Respondent, v. DIADAMA CLARK, Appellant.

      County judge — may grant an order to show cause why am injunction should not issue in am action in the Supreme Court.

    In an action, brought in the Supreme Court to restrain the foreclosure by advertisement of a mortgage, a county judge may grant an order requiring the defendant to show cause before him why a temporary injunction should not be granted, and restrain him in the meantime from selling the premises at the time specified in the advertisement.
    Appeal from an injunction order granted herein by the special county judge of Chautauqua county.

      Oook de Lockwood, for the appellant.

      Hazletme <& Lewis, for the respondent.
   Talcott, P. J.:

The question arises upon an order of the special county judge of Chautauqua county, granting an injunction restraining the proceedings of the defendant to foreclose, by advertisement, a mortgage on a parcel of land in the town of Busti.

The complaint, stripped of its unnecessary verbiage, is founded upon the allegation that the plaintiff, who is the owner of the fee of the premises, and obligated to pay the mortgage, entered into an agreement with the defendant whereby, in consideration of the payment of certain interest on the mortgage, anticipated and paid, before it was due, the defendant agreed to extend the time for the payment of the balance till a time subsequent to commencement of the foreclosure proceedings.

The payment of the interest before it was to become due by the conditions of the mortgage, formed a good consideration for the agreement on the part of the defendant, to extend the time for the payment of the balance.

The appellant objects to the practice in this, that the special county judge granted an order upon the defendant to show cause why an injunction order should not be granted; in the meantime restraining the sale of the mortgaged premises at the time specified in the advertisement, upon the ground that the hearing of the motion for the injunction, after the return of the order to show cause, was the hearing of a contested motion in a case pending in the Supreme Court, which the special county judge has no power to do.

Section 606 of the Code of Civil Procedure, provides that an injunction order may be granted by any county judge. Section 609 provides that the order may be granted upon or without notice, in the discretion of the court or judge. The order to show cause was equivalent to a notice of the application for an injunction order. See, also, sections 2il and 627 of the Code of Civil Procedure.

"We are unable to see why the special county judge had not the power to grant the injunction order, or why his proceedings were in any respect irregular.

The order appealed from is affirmed, with ton dollars costs and disbursements.

Hardin and Rumsey, JJ., concurred.

Ordered accordingly.


text:
    ALVAH KELLOGG, Appellant, v. JOHN S. CLARK and FRANK LANKTON, as Administrators, etc., of HENRY BILLS, Deceased, Respondents.

      Reference of a disputed claim against am, estate— a/ppeal from a judgment entered upon the repo^'t of a referee therein — Statute of frcmds — when an oml agreement is void, as not to he performed within one year.

    A party who appears and unsuccessfully opposes a motion for the confirmation of the report of a referee, appointed in pursuance of the statute to pass upon a claim against the estate of a deceased person, may appeal from the judgment entered thereon without first moving at a Special Term for a new trial upon a case and exceptions.
    October 17, 1874, the plaintifE agreed to sell to one Westcott certain lands for the sum of $764, to be paid in annual installments of fifty dollars each, with interest on all sums remaining unpaid. In November, 1874, Westcott, in pursuance of an agreement made with one Bills, assigned the said contract to him, and executed and delivered to him a bond and mortgage for $900 upon certain other real estate then conveyed by Bills to Westcott. Bills verbally agreed to pay to the plaintiff the amounts to fall due upon his contract with Westcott, and thereafter entered into possession of the land contracted to be sold by the plaintiff and made two payments to him.
    In this action, brought against the administrators of Bills to enforce his agreement to pay the amounts to become due under this contract, held, that as most of the payments fell due more than one year after the time when Bills assumed the payment thereof, his agreement was void under the statute of frauds, as being an oral agreement not to be performed within one year.
    . Appeal from a judgment in favor of the defendants, entered upon an order confirming the report of a referee appointed to pass upon a disputed claim against the estate of the defendants’ intestate.

      A. B. Mel/oille, for the appellant.

      G. A. Moon, for tire respondents.
   Talcott, P. J.:

This case comes before .the court on an appeal from a judgment entered on the confirmed report of a referee, appointed with the approval of the surrogate of Herkimer county, under the statute authorizing administrators to refer claims, the justice of which they dispute.

It appears that after the report of the referee had been filed, a motion was made on due notice, by the attorney for the defendants for judgment in pursuance thereof, which was opposed by the attorney for the plaintiff, and was granted on the 9th day of December, 1879, after hearing the counsel on both sides.

The objection is made, in behalf of the respondent, that an appeal to the General Term does not lie in this case, the plaintiff not having made a motion to set aside the report of the referee, and for a new trial at the Special Term on a case containing exceptions.

The plaintiff, it appears, had omitted to file exceptions to the report of the referee before the order confirming such report v?as granted, but, on the 4th day of March, 1880, the plaintiff, on motion, obtained leave to file such exceptions, which was done on the 9th day of March, 1880, after the judgment had been entered.

The propriety of this order may have been questionable, yet as there is no appeal from the order, and as the court had the power to make it, it must stand as the law of the case. But, as the questions which arise in the case are presumed to have been fully considered by the Special Term on the motion for confirmation and for judgment, it would seem to be a useless ceremony to move another Special Term to set aside the order of confirmation and for a new trial, for the purpose of reviewing the decision of the Special Term by which the order had been made.

In the case of Smith v. Velie (60 N. Y., 106), it did not appear that the appellant had opposed the motion for confirmation. It was there held that in such cases, in order to preserve the right of review upon appeal from the judgment entered on the report of the referee, the party aggrieved must move upon a case or otherwise, to set aside the report or for a new trial, or must ajypacvr and oppose its confirmation and take the proper exceptions. That was done in the present case.

In Frane v. Van Tine et al. (16 Hun, 528), it appeared that the attorney for the defendant appeared on the motion for confirmation and for judgment, and consented that the same be granted, and for that reason the appeal was dismissed. A judgment consented to in open court was hold to be equivalent to a judgment by default, and, therefore, not appealable. (Innes v. Purcell, 58 N. Y., 388; sec, also, Flake v. Van Wagenen, 54 id., 25, and Coe v. Coe, 14 Abb. Pr., 86.) We are therefore of the opinion that the plaintiff had the right to appeal to the General Term from the judgment in this case, entered upon the order of the court confirming the report of the referee.

As to the merits of the case thus presented, it appears that the defendants are sued as the administrators of Henry Bills, deceased, against whose estate a claim was made by the plaintiff for $189.96, being for an amount which fell due in 1877 and 1878, upon a certain contract made between the plaintiff and one Edward Westcott, for the sale by Kellogg to Westcott of a certain parcel of land in the .village of Grant, county of Herkimer, which contract bore date on the 17th day of October in the year 1874. The whole sum to be paid by Westcott, as the purchase-money, was $764, which Westcott agreed to pay as follows: Fifty dollars and interest on the whole amount within one year from the date of the contract, and fifty dollars with the interest on the whole amount on the seventeenth day of October in each year thereafter until the whole amount of principal and interest should be fully paid. Westcott and Henry Bills, the intestate, entered into a parol agreement in November, 1874, whereby said Bills agreed to sell and convey to said Westcott, certain real estate situate in the village of Graves-ville, in Herkimer county, and Westcott agreed, in consideration of such conveyance to assign to Bills his interest in the said Kellogg contract, and further, to pay Bills the sum of $900 for the property in the village of Grant, to be secured by the bond of Westcott with his mortgage on the property in Grant village; and Bills verbally agreed that he would pay to Kellogg, the plaintiff, the amount which Westcott had in and by said contract agreed to pay Kellogg, in and by the said contract between Kellogg and Westcott as the same should become due.

In pursuance of such agreement, Bills conveyed to Westcott the real estate in Gravesville, referred to, and Westcott made his bond and mortgage to Bills, conditioned for the payment to Bills of the said sum of $900, in installments of fifty dollars per year, with interest on the whole sum until the same should be fully paid; and, at the same time, Westcott made to Bills a written assignment, under seal, of all his right, title and interest in the said contract, between Westcott and Kellogg, but Bills did not agree to pay anj money on the said contract, between Westcott and the plaintiff, except by the said oral agreement.

Bills entered upon and took possession of the property in Grant, and Westcott entered upon and took possession of that in Graves-ville. Westcott made two payments on the $900 bond and mortgage, amounting to $113, and Bills made two payments on the contract, between the plaintiff and Westcott, amounting to $193.46, and made no other payments. Bills foreclosed the mortgage given to him by Westcott on the Gravesville property, and the same was sold for $500.

The referee, after finding the facts, found, as conclusions of law, that the said oral agreement made by Bills, the intestate, with Westcott, to pay to the plaintiff the money which, by the said contract, Westcott was bound to pay the plaintiff, was within the statute of frauds, being a contract which, by its terms, was not to be performed within one year from the time of making the same, and was therefore void; and that Kellogg, the plaintiff, was not entitled to recover anything on account of the claims by him alleged. In this conclusion, we think the referee was correct. The installments, to pay which it is claimed that Bills assumed, mostly fell due, according to the terms of the contract between the plaintiff and Westcott, long after the expiration of a year from the time when Bills assumed the payment thereof.

An oral agreement to pay money, after the lapse of a year, for land to be presently conveyed, is within the statute. (Marcy v. Marcy, 9 Allen, 8; 7 Wait’s Actions and Defenses, 43; Broadwell v. Getman, 2 Denio, 87.) An agreement to pay on a day hence, a year after the time of making the agreement, is within the statute, for a tender before the day would not be good. (Lower v. Winters, 7 Cow., 263; Moore v. Fox, 10 Johns., 244.)

Part performance within the year will not take the case out of the statute. (Broadwell v. Getman, 2 Denio, 87.) Where it was held that though one of the parties is to perfoim everything on his part within the year, the contract is void as to the other, who was not to perform within the year. (See Lockwood v. Barnes, 3 Hill, 128; and Durand v. Curtis, 57 N. Y., 7.) Conceding that tlie plaintiff would bave bad a personal claim against Hills if tbe latter bad assumed tbe payment of tbe installments to grow due on tbe contract with Westcott by some valid agreement, be is not entitled to make sueb claims under tlie circumstances of this case, because tbe agreement of Bills to assume those payments was void, and if Westcott would be entitled to any relief as against Bills, or bis executors, it would not be upon tlie invalid contract.

Tbe judgment should be affirmed with costs to tbe respondents.

Smith and Hardin, JJ., concurred.

Ordered accordingly.


author: Smith, J.:

text:
    WILLIAM BROADHEAD, Plaintiff, v. THE LYCOMING FIRE INSURANCE COMPANY OF MUNCY, PENN., Defendant.

      Mr6 insurance company — when it is estopped by the knowledge of its agent from avoiding a policy for a breach of its conditions — such knowledge need not be acquired at the time of his issuing the policy.

    In tliis action, brought by the plaintiff upon a policy of insurance against lire issued by the defendant, the latter set up as a defense a broach of a condition, avoiding it in case the interest of the insured was not truly stated and described in the policy. Upon the trial it appeared that the policy in question was issued to the plaintiff by the general agent of the company in renewal and continuance of one previously issued by the defendant and which had been assigned to the plaintiff, and that at the time of such assignment the said general agent, with full knowledge and information of the plaintiff’s title to and interest in the property, had by an indorsement upon the policy made the loss payable to the plaintiff as his interest might appear. At the expiration of the first policy, the agent having called on the plaintiff and been informed that he wished it to be continued, issued the one in suit, which was not examined by the plaintiff when delivered to him.

      Held, that the knowledge of the agent, acquired while acting for the company in reference to the insurance of the same property, was the knowledge of the company.
    That the fact that such knowledge was acquired by the agent prior to the time when he issued the policy in question was immaterial,

      That the company was estopped from insisting- upon, the breach of the said condition as a defense to the action.
    MotioN by tbe defendant for a new trial on exceptions taken at tlie Chautauqua Circuit, and ordered to be heard at the General Term in the first instance.

      G. B. Loclmood, for the plaintiff.

      W. F. Gogswell, for the defendant.
   Smith, J.:

This action is upon a policy of insurance against loss or damage by fire, issued by the defendant to the plaintiff on property described in the policy as the “ factory building in the village of Jamestown, occupied as a planing-mill and for general manufacturing business, the machinery, etc., therein, and his stock of lumber therein.” The amount insured was $333 on the building, the like sum on the machinery, and $168 on the lumber. The lumber was described as the plaintiff’s, but the building and machinery were not described as the property of any person. The defense was predicated upon certain provisions of the policy which declared the policy void in case the interest of the assured in the property, as owner or otherwise, was not truly stated in the policy; and also in case such interest, if any, other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, was not so represented to the company, and so expressed in the written part of the policy. The date of the policy was 2d January, 1875. It appeared at the trial that on 5th September, 1874, one Morse, who hold land contracts for the premises on which the building was situated, assigned the contracts to the plaintiff and executed to him a chattel mortgage upon the machinery as security for certain liabilities which the plaintiff had assumed as surety for Morse. On 9th December, 1874, Morse executed to the plaintiff a general assignment of all' his property, real and personal, for the benefit of his creditors. The plaintiff had not foreclosed the mortgage, and in the inventory filed in connection with the assignment, all the mortgaged property was included, except the lumber. But a small part of the purchase-money had been paid upon the land contracts, and no deed bad been given. Tbe plaintiff took possession of tbe assigned property under tbe general assignment, and beld it down to tbe time of tbe fire. He owned tbe lumber absolutely, and be bad paid several thousand dollars on bis liabilities for Morse. It also appeared that Smitli & Cady were tbe agents of tbe defendant at Jamestown, and that on 20th January, 1874, as such agents, they issued a policy upon tbe same property to Wood & Morse for one year. In September, 1874, when tbe land contracts were assigned to tbe plaintiff, that policy was transferred to him, and by an indorsement made thereon two days thereafter by tbe agents, Smith & Cady, tbe loss was made payable to tbe plaintiff as bis interest might appear. At tbe expiration of that policy, tbe policy in suit was issued, Smith, tbe agent having previously called on tbe plaintiff and inquired whether be wished the policy continued, and having been told that be did. Tbe policy was not examined by tbe plaintiff when it was delivered to him. By tbe terms of tbe first policy, when issued, tbe loss was made payable to one Allen as bis interest might appeal’. Tbe policy was intended to secure Allen for certain liabilities as surety for Wood, or his firm. Those liabilities were afterwards assumed by tbe plaintiff and Allen was released. Wood, tbe partner of Morse,’ testified that at or before tbe time when tbe first policy was issued, and after be bad applied to Smith, tbe agent, for insurance, be told Smith that tbe contracts for tbe land on which tbe building stood bad been assigned to Allen to secure him for indorsing, and that Allen wanted tbe insurance for bis benefit as further security. Morse testified that after be made the transfer to tbe plaintiff, in September, 1874, bo told Smith that be bad transferred bis interest in tbe shop and real estate, and assigned bis contracts to tbe plaintiff, and wished to have tbe policies transferred to him as bis interest might appear, and be thought be so told him at the time when tbe transfer was made, but be was not positive as to tbe time. Tbe defendant gave testimony controverting that above stated. It appears to have been conceded that tbe plaintiff was entitled to recover, for tbe value of tbe lumber, $168.

Tbe court charged tbe jury, in substance, that if tbe defendant’s agent knew, at tbe time when tbe policy in question was issued, that tbe title which Morse, tbe plaintiff’s assignor, bad to tbe land on which tbe building stood was only by virtue of tbe contracts, the verdict should be increased by the sum of $333 and interest. He also charged that if the agent knew at such time that Morse had executed to the plaintiff a general assignment for the benefit of creditors, the verdict should be still further increased by the sum of $209.48 and interest. The defendant’s counsel excepted to each of those instructions, and requested the court to charge that knowledge of the agent of the company, which was not acquired in connection with the application for the policy in suit, was not knowledge that affected the liability of the defendant. He also asked the court to charge that any notice of the condition of the title to the property given by Wood to defendant’s agent, or any knowledge derived from him in relation thereto, at the time referred to by Wood, was not such information or knowledge as would affect the policy in suit, or preclude the defendant from raising the defense of a breach of the condition as to the title expressed in the policy. Each request was denied, and the defendant’s counsel excepted to each refusal.

The exceptions above stated present the principal question in the case. It is not claimed on the part of the plaintiff that any information as to the nature of the plaintiff’s interest was communicated to the agent at the time when the policy in suit was applied for or issued, and the question is, whether the force of the conditions in the policy, invoked by the defendant, is avoided by the information on that subject previously communicated to such agent on occasions when he was engaged in the business of his principal, that business being the issuing and transferring of the first policy, the risks created by which was continued without interruption by the policy in suit.

In Van Schoick v. Niagara Fire Insurance Co. (68 N. Y., 434), cited by defendant’s counsel, information as to the title to the property had been communicated to the agent before he issued the policy in suit, and, at the time of issuing the policy, the agent having such information, and with a view to the insurance in question, asked if there was any change in the property, and was told that there was not. “So that” (said Folghee J., in his opinion, which was that of the court) “ at the time of the issuing of this policy Lewis (the agent) was informed of the fact that this building was within the scope of this condition.” The report of the case does not show whether the agent originally acquired the information while acting for his principal. The case, therefore, is not exactly in point.

When the present ease was before us on a former appeal (14 Hun, 452), evidence offered by the plaintiff to establish knowledge in the agent of the condition of the* title and the rights of the plaintiff therein at the time when 'the policy was issued had been excluded, and on that ground a new trial was granted. Whether the appeal papers showed the precise nature of the evidence excluded I am not able to say, but the case was thought to be within the doctrine of Van Schoick v. The Niagara Ins. Co., and was decided upon its authority; and, consequently, like that case, is not in point upon the present question.

If at the time the agent issued the policy in suit he knew the nature of the plaintiff’s interest in the property, it would seem to be immaterial whether such knowledge was acquired by him at that time or at some previous time when he was acting as the agent of the defendant. It is the duty of an agent to communicate information thus acquired by him to his principal, and the presumption is that he has done so, and, therefore, his knowledge thus acquired is regarded in law as the knowledge of his principal. But information which comes to him when he is not engaged in the business of his principal does not affect the latter, for the reason that the agent is under no obligation to communicate it.

In some of the cases the rule is said to be that the principal is deemed to have notice of whatever is communicated to his agent while acting as such in the tra/nsaction to which the communication relates. (Bank of the United States v. Davis, 2 Hill, 451; Dillon v. Anderson, 43 N. Y., 231, 238.) Even if the rule is limited to communications relating to the transaction in hand at the time when they are made, the present case is within the rule, as the communications made to the agent had direct reference to the insurance applied for by Morse & Wood. Moreover, the policy issued to the plaintiff simply continued the insurance effected by the previous policy which had been transferred to the plaintiff with the defendant’s knowledge and consent. It was, in effect, a renewal of the policy already held by the plaintiff, and in the course of the issuing and transferring of which the agent acquired his information. We think the rulings of the judge at the Circuit were correct.

■ The motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.

Talcott, P. J.., and Habdin, J., concurred.

So ordered.


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    ASA B. WARD and SOLOMON MAKEPEACE, Administrators, etc., of LODEMA WARD, Deceased, Appellants, v. ELNATHAN PLATO and ESTHER W. PLATO, Respondents, Impleaded, etc.

      Evidence — admissibility of the testimony of a party as to personal ti'amsaetions with a deceased person — Code of Civil Procedure, § 829 — trial by jury —when the plaintiff is not entitled to it, in equity cases.

    Under section 829 of tile Code of Civil Procedure a party cannot he examined as a witness in his own behalf against the administrator of a deceased person, as to any personal transaction or communication had by him with the deceased, unless the administrator has been examined in his own behalf concerning the same transaction or communication. '
    In an action, brought by the administrator of a deceased person to recover articles of personal property alleged to form part of his estate, where equitable relief by way of an injunction and the appointment of a receiver is demanded, the plaintiff has no right to a trial by jury, unless the'defendant consent thereto, unless issues be framed and settled'in accordance with the usual practice in equity cases. '
    Appeal from a judgment in favor of tbe defendants entered on a verdict rendered at the Jefferson Circuit, and from an order denying a motion for a new trial made on the minutes of the justice before whom the action was tried.

      Wayland F. Ford, for the appellants.
    The general words at the end of section 829 of the Code of Civil Procedure, qualify not only the clause immediately preceding, separated by a comma, but the next preceding clause also separated by a comma. (Lambert v. The People, 76 N. Y., 227; Ooxson v. Poland, 2 Daly, 66; Pothier on Obligations, part 1, chap. 1, § 102; Brownmg v. Wright, 2 Bosanquet & Puller, 12 ; Petit v. Geesler, 58 H. Pr., 195.)

      Anson PLa/rder, for the respondents.
   Smith, J.:

Tbe complaint alleged that tbe plaintiffs were duly appointed by tlie surrogate of Jefferson county administrators of tbe personal estate of Lodema Ward, late of Plessis, in said county, deceased, intestate, and that, as such, they were entitled to tbe possession of all her personal property, among which was a promissory note for $500 made bj tbe defendant Benson; a promissory note for about $400 made by tbe defendants Benson and Plato; a gold watch and chain of tbe value of forty-five dollars, and three gold rings of tbe value of three dollars. Tbe complaint also alleged that during her last sickness the deceased was non compos mentds, and had not capacity to dispose of her property; that the defendant Esther W. Plato, the wife of Elnathan, acted as her nurse during her last sickness, and that she and her husband in some way obtained possession of said notes, watch, chain and rings, and refused to deliver them to the plaintiffs on demand after their appointment. The complaint also alleged that the defendants Plato are insolvent; that the defendants threaten that the notes will be so disposed of that the plaintiffs will never get possession of them; that the defendant Benson, who is alone responsible, threatens to pay the note given by him, individually, to whomsoever may have possession of it; and that there is danger that the property so in the possession of the defendants-Plato will be removed beyond the jurisdiction of the court, or lost or destroyed. The relief demanded is that the plaintiffs recover of the defendants Plato the possession of said property, including the notes, and that said defendants be required to surrender the possession of the same; that a receiver be appointed pmclente lite; that the defendant Elnathan Plato be restrained from selling, etc., any of said property, and from collecting or receiving pay on either of said notes; that the defendant Benson be restrained from paying said notes to any one, and that a temporary injunction issue. The answer alleged that the deceased did not die intestate, but left a will, and it set up a gift, causa mortis, of the $500 note to the defendant Elnathan Plato, for the use of her nephew, James hi. Hart, an infant, then living with Plato; of the other note to Plato, as his, and of the watch, chain and rings to Mrs. Plato.

At the trial, the parties having agreed not to give any evidence as to the mental condition of tbe deceased, the court ruled that the case was triable by a jury. No question arises upon this appeal as to the correctness of that ruling, the defendants alone having excepted to it.

Each of the administrators was called by the plaintiffs as a witness. Makepeace testified to a demand made of Mrs. Plato for the property, and Wai’d testified that he saw the watch and chain in the possession of the deceased shortly before her death.

After the plaintiffs rested, the defendants called Elnathan Plato as a witness, and asked him whether he had a conversation with the deceased in November or October (she having died in November). The plaintiffs objected to the witness testifying to any personal transaction between himself and .the deceased, under section 829 of the Code. The court overruled the objection and the plaintiffs excepted. The witness then gave testimony tending to show a gift to him by the deceased of the two notes referred to, a few days before her death. The defendants then called the defendant Esther W. Plato, as a witness, and asked her to state the transaction between herself and the deceased respecting the watch. The like objection taken by the plaintiffs was overruled and the plaintiffs excepted. The witness then gave evidence tending io show that the watch was given and delivered to her by the deceased. At a subsequent stage of the trial the defendants’ counsel offered and consented that the testimony of Plato should stand in the case only as evidence in favor of his codefendant, Mrs. Plato, and that the evidence of Mrs. Plato should stand only as evidence in favor of her husband. The appeal book states that the plaintiff’s counsel declined to accept the proposition, and the court made no ruling and gave no intimation upon the subject.

It is now contended on the part of the respondents, and we understand it to have been held at the trial, that the administrator Ward, having testified on the part of the plaintiffs to a personal transaction with the deceased, to wit, to having seen the watch and chain in her possession shortly before her death, the defendants were made competent thereby to testify to any personal transaction between them and the deceased. Section 829 provides that “a party * * * shall not be examined as a witness in his own behalf or interest * * * against the * * * administrator * * * of a deceased person, * * * concerning a personal transaction or communication between tbe witness and tbe deceased person; * * * except where tbe * * * administrator * * * is examined in bis own bebalf, or tbe testimony of the * * * deceased person is given in evidence, concerning tbe same transaction or communication.” Tbe ruling at tbe Circuit is sought to be sustained upon tbe idea that the words “ concerning tbe same transaction,” etc., at the end of tbe section, relate only to tbe next preceding clause beginning with tbe word “ or.” ¥e are not prepared to assent to that construction. We think the words in question refer as well to tbe first branch of tbe clause commencing with tbe word “ except,” and that so far as this case is concerned, tbe clause should be read, “except where tbe * * * administrator * * * is examined in bis own bebalf * * * concerning tbe same transaction.” In our opinion the learned judge erred in overruling tbe objection.

As there must be a new trial, it is due to the parties to say that, in our judgment, so long as tbe plaintiffs demand equitable relief by way of an injunction and the appointment of a receiver, they have no right to a trial by jury, against the objection of tbe defendants, unless issues shall be ordered and framed according to tbe usual practice in equity cases.

Tbe judgment should be reversed and new trial granted, costs to abide event.

Talcott, P. J., and Hakdin, J., concurred.

So ordered.


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    THE STATE BANK OF SYRACUSE, Respondent, v. ANDREW GILL and ADELAIDE C. GILL, Appellants.

      Affidcmt of m&rits — when it is defective.

    An affidavit of merits in wiiicii the defendant states that “he has a good and valid defense to the whole of the plaintiff’s claim as set forth in said complaint upon the merits thereof,” is defective and insufficient; it should state that the defendant “ has a good and substantial defense on the merits in this cause.”
    An affidavit is also defective which fails to state that the counsel, whose advice is sworn to, is the counsel of the defendant in the action in which the affidavit is made.
    Appeal from an order of the Herkimer Special Term, denying a motion to change the place of trial.
    The defendant, Andrew Gill, stated in his affidavit, among other things, “ that he has fully and fairly stated the case herein, and all the facts and circumstances relating thereto, to his counsel, Robert Sewell, Esq., who resides at No. 68 West Forty-fifth street, in the city of New York, and has disclosed all the facts which he expects to prove by each of the witnesses hereinafter named, and that he and the defendant, Adelaide C. Gill, and each of them, have a good and valid defense to the whole of the plaintiff’s claim as set forth in said complaint upon the merits thereof, as he and she are advised by their said counsel, and as he and she each of them verily believes.”
    An affidavit was also made by Robert Sewell, Esq., to the effect “ that he is an attorney and counselor at law; that he resides at 68 West Forty-fifth street, in the city of New York, and that the defendant, Adelaide C. Gill, has fully stated to this deponent all the facts respecting this case, and her defense therein; that he has been retained by her as her counsel, and that he lias advised her upon the statement of facts aforesaid, and upon his own knowledge of the case, that she has a valid defense upon the merits to the whole of plaintiff’s claims herein as he verily believes.”

      Robert Sewell, for the appellants.

      G. Doheny, for the respondent.
   Smith, J.:

There is no sufficient affidavit of merits in this case. The affidavit of the defendant, Andrew W. Gill, alleges that each of the defendants bas a good and valid defense to tbe whole of the plaintiff’s claimjas set forth in said complaint upon the merits thereof,” etc. The affidavit made by Mr. Sewell, purporting to be in behalf of the defendant, Mrs. Gill, she being absent from the State, alleges that she has a “ valid defense upon the merits to the whole of plaintiff’s claim herein,” etc. Neither of these is a compliance with what the rule and practice require, to wit: that the defendants have “ a good and substantial defense on the merits in this cause,” etc (See form of affidavit of merits in note to Brittan v. Peabody, 4 Hill, 66.) In Meech v. Calkins (4 Hill, 534), which was an action of debt on bond, an affidavit that the defendant has “ a good and substantial defense to the bond,” etc., was held defective in not stating a defense on the merits. In Durant v. Cook (1 How. Pr., 45) the affidavit stated that the defendants have a good and substantial defense upon the merits in the above entitled cause to the promissory note on which the action is brought,” etc. Held, bad. So in Howe v. Hasbrouck (1 How. Pr., 67), the averment being that the defendant has “ a good, valid and sufficient defense upon the merits in the above entitled cause to the plaintiff ’’s declaration filed in this suit,” etc. Also in Mason v. Moore (2 How. Pr., 70), where the affidavit stated that the defendants have a good and substantial defense upon the merits to the plaintiff’s demand on the promissory note on which this action is brought,” etc. Pule 24 applies only to the case of an affidavit made to obtain an order extending a defendant’s time to answer or demur; and the last clause of section 980 of the Code of Civil Procedure, makes a verified answer equivalent to an affidavit only for the purpose of preventing an inquest. Each of the affidavits in this case is also defective in not stating that the counsel, whose advice is sworn to, is the counsel of the defendant in this action. The affidavit made in behalf of Mrs. Gill is further defective in the several particulars specified by the plaintiff’s counsel in subdivisions (c), (d) and (f) of his third point, which need not be referred to more particularly.

The order is affirmed with costs.

Talcott, P. J., and HaediN, J., concurred.

Order denying motion to change place of trial affirmed, with ten dollars costs and disbursements.


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    ADOLPH G. MARSHUETZ and LEONARD W. MACK, Appellants, v. CORNELIUS McGREEVY, Respondent.

      Executory contract of sale — right of the vendee to set up a breach of wa/rranty without returning the goods.

    Where upon an executory contract for the sale of a cask of gin, the vendor represents it to be of good quality and to be worth more than the price paid for it, and at the same time exhibits a sample of gin which is of a good quality, the vendee is entitled to a reasonable time to examine the gin after its arrival, and may, if it proves to be inferior to the sample and of poor quality, set up the damages arising from the breach of warranty as a defense to an action brought to recover its price, although he has not returned or offered to return the gin, but has retained and used the same.
    Appeal from a judgment of the Steuben County Court, entered upon the report of a referee in an action brought into that court by appeal from a justice’s judgment.

      C. E. Bea/rd and De Menille Page, for the appellants.
    This was an executory contract, and all the defects being visible and capable of discovery by ordinary observation, the defendant was bound to return, or offer to return, the gin. (Gaylord Mfg. Go. v. Allen, S3 N. Y., 515 ; Brown v. Burham, 4 Hun, 227; Peed v. Pcmdall, 29 N. Y., 358; Push v. Eokler, 41 id., 491.)

      Holliday & Bingham, for the respondent.
    The purchaser was entitled to receive and make use of the property, and can only be made liable in an action upon contract and compelled to pay the actual value and not the contract-price, if the article or property does not agree with the sample and warranty. (Voorhies v. Ea/id, 2 Hill, 288 ; Muller v. Eno, 14 N. Y., 597; Best v. Eckle, 41 id., 488; Foote v. Bentley, 44 id., 166; Story on Sales, § 421; Thornton v. Wyrmi, 13 Wheat., 183 ; Day v. Pool, 52 N. Y., 416.) The vendee having retained the goods, or gin, had the right in this action to recoup his damages against the purchase-price, as the right of action for a breach survives the receipt and use of the goods. (Waring v. Mason, 18 Wend., 425; Bwrne v. Dodd, 5 N. Y., 95; Peed v. Pcmdall, 29 id., 358; Foote v. Bentley, 44 id., 166; Muller v. .Eno, 13 id., 597; Bermet v. Cook, 45 id., 265 ; Day v. Pool, 52 id., 416.)
   Smith, J.:

This action was brought to recover the balance of the purchase-price of a cask of gin sold and delivered by the plaintiffs to the defendant. The plaintiffs were wholesale liquor dealers in the city of New York. The referee found that in June, 1876, the plaintiffs, by their traveling agent, Coshland, agreed to sell to the defendant a cask of Tom ” gin, containing about twenty gallons, at the price of two dollars per gallon, to be forwarded by the plaintiffs to the defendant at TIornellsville, out of their wholesale stock in New York, at a credit of sixty days from the date of the bill. He also found that Coshland represented the gin to be of good quality, and that it gave general satisfaction and was worth more than two dollars a gallon, and that at the same time he exhibited to the defendant a sample of gin which was of good quality and a good article of Tom ” gin. The cask of gin containing twenty-two and a half gallons, with the bill, was sent by the plaintiffs and received by the defendant soon after the twentieth of June. The cask was not opened or the gin examined by the defendant until the twenty-sixth of September, when he examined the gin and found it of poor quality and unfit for use in his business. It was not of the same kind or quality as the samples exhibited to the defendant at the time of the sale. The defects were discoverable by tasting and smelling the gin. On fourth of October the defendant sent to the plaintiffs a draft of thirty dollars to apply on the gin, and at the same time informed them by letter that the gin did not come up to the standard and that he would settle with them for the balance. The defendant paid nothing more. He did not offer to return the gin, and he disposed of the same. The referee found that the sum of seventeen dollars and fifty cents of the purchase-price was unpaid, and that the gin was not worth more than one dollar per gallon, and he held that the defendant is entitled to judgment for costs.

The appellants contend that as the sale was executory and the defects complained of were capable of discovery by ordinary observation, the defendant’s claim for damages did not survive his acceptance and use of the gin. Ve do not concur in that view of the case. The sale was with warranty as to the quality, and as the liquor could not be examined while it was inclosed in the cask in which it was shipped, the vendee had the right to rely upon the warranty, and be was not required to open tbe cask and test its contents at tbe time of delivery. It is not found that bis delay in opening tbe cask and examining tbe liquor was unreasonable. "When be did examine the gin and found that it was defective, he was not bound to return or offer to return it, and his remedy upon the warranty was not lost by his retaining the gin and using it. (Day v. Pool, 52 N. Y., 416.) Upon this principle the case was disposed of by the referee.

A single question of evidence is presented. The defendant was examined as a witness in his own behalf, and he was permitted to testify against the objection and exception on tbe part of tbe plaintiffs, that after the trial before the justice, Coshland, the plaintiffs agent said to him that he thought the gin was bad. The testimony was inadmissible, there being no evidence that Coshland at that time was acting for his principals. But there is other evidence in the ease of the bad quality of the gin, so ample and conclusive as to show very clearly that the error above pointed out did not affect the result. It should, therefore, be disregarded. '

The judgment should be affirmed.

Talcott, P. J., and IIakdiN, J., concurred.

Judgment affirmed.


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    THE STATE BANK OF SYRACUSE, RESPONDENT, v. ANDREW W. GILL and ADELAIDE C. GILL, Appellants.

      Beceimr — when the plaintiff 7ia,$ such am, interest in the property as to authorize the appointing of one— Code of Oivil Procedure, § 713.
    Where ail action is brought by a judgment creditor to reach certain shares of mining stock, claimed to belong to the judgment debtor, but which are at the time of the commencement of the action standing on the company books in the name of his wife, the creditor has such “ an apparent right to or interest in ” the stock, as to entitle him to apply, under section 713 of the Code of Civil Procedure, for the appointment of a receiver thereof, when there is reasonable ground to apprehend that before the suit can be determined the stock will be removed beyond the jurisdiction of the court, or lost in some adverse turn of the defendant’s affairs.

      The fact that a receiver of the judgment debtor’s property has already been appointed in proceedings supplementary to execution, does not bar sucb an application, nor does it make it necessary that the same receiver should be appointed in granting it.
    Appeal from an order made at Special Term, granting a motion for the appointment of a, receiver.
    The action was brought by the plaintiff, who had recovered a judgment against the defendant Andrew Gill, and had an execution issued thereon returned unsatisfied, to reach certain shares of stock alleged to belong to the j'udgment debtor, but which then stood in the name of his wife upon the books of the company.

      Robert Sewell, for the appellants.

      G. Doheny, for the respondent.
   Smith, J.:

A careful examination of the appeal papers has convinced me that the question whether the shares of stock of the Amie Mining Company, in controversy in this suit, are the property of the defendant Andrew W. Gill, or whether, as claimed by the appellants, th'ey belong to his wife, can only be satisfactorily determined by a trial of the action. In that view of the case, the plaintiff, who is a j'udgment creditor of Gill, the husband, and who seeks by this action to reach the said stock and apply it to the satisfaction of his judgment, must be held to have an apparent right to or interest in the stock, within the meaning of section 713 of the Code of Civil Procedure. The stock is in the possession of the defendants, and the moving papers show that there is reasonable ground to apprehend that before the suit can be determined the stock will be removed beyond the jurisdiction of the court, or lost in some adverse turn of the defendants’'affairs. We think the Special Term rightly held that the case is a proper one for the appointment of a receiver.

The fact that a receiver of the property of the defendant Andrew W. Gill, has been .appointed in certain supplementary proceedings, is not a bar to this application, nor does it make it necessary that the same receiver be appointed here. Section 2466 of the Code applies only to supplementary proceedings, and not to actions brought by judgment creditors. The question whether the same or a different receiver should be appointed here was within the discretion of the Special Term.

Order of Special Term affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order appointing receiver affirmed, with ten dollars costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. PATRICK CROWLEY, Plaintiff in Error.

      Criminal law — disturbance of religious meetings — when the offense is indictable at common lam — 1 i?. 8., 674, § 64.
    The plaintiff in error was tried upon an indictment charging that on the 1st day of June, 1879, at the town of Manlius, in the county of Onondaga and the State of New York, he, in the Church of the Immaculate Conception, during the celebration of divine service, “ unlawfully, unjustly and irreverently did disturb and hinder one James O’Reilly, then and there being the minister and pastor officiating in the said church, and then and there being in the discharge of his sacred functions and in the performance of divine service.”

      Held, that the offense charged therein was indictable at common law, and that the provisions of the Revised Statutes (1 R. S., 674, § 64) prohibiting the disturbance of religious meetings were not inconsistent with nor did they take away the common-law remedy by indictment.
    Writ of error to the Court of Sessions of Onondaga county, to review a conviction of the plaintiff in error for disturbing a religious meeting.

      W. P. Goodelle, for the plaintiff in error.

      W. G. Huger, for the defendants in error.
   Smith, J.:

The indictment contained two counts. The first count charged that at the town of Manlius, in said county, on Sunday, the first day of June, 1879, the plaintiff in error, in the “ Church of the Immaculate Conception,” there situate, during the celebration of divine service, “ unlawfully, unjustly and irreverently did disturb and hinder one James O’Reilly, then and there being the minister and pastor officiating in the said church, and then and there being in the discharge of his sacred functions, and in the performance of divine service,” etc. The second count was sought to be framed under the provisions of the Revised Statutes, designed to prohibit the disturbance of religious meetings. (1 R. S., 674, § 64.) But as that count is not recited in the judgment it may be laid out of view. The prisoner at first pleaded not guilty to the indictment, but after-wards withdrew his plea and demurred, and the demurrer having been overruled, he was sentenced to be imprisoned in Onondaga County Penitentiary, at hard labor, for the term of three months, and to pay a fine of fifty dollars and to stand convicted until the fine is paid.

The principal question argued before ns is whether the offense charged in the first count is indictable at common law. • The citations made by the counsel for the defendants in error seem to show that it is. In England the disturbance of religious meetings has long been considered a common-law offense. The offense consisted not only in disturbing the congregation, but also in disturbing the minister or curate. Chitty, in his Criminal Law (vol. 2, p. 21), following a precedent in Tremaine’s Pleas of the Crown, gives a form charging that a certain person “ with force and arms, unlawfully, unjustly and irreverently, did disturb and hinder one E. E., clerk, then being curate of the parish church aforesaid, and in the execution of his office, etc., in contempt of the laws of the realm, to the evil example of others,” etc. That form was followed and sustained at an early day in this State, in the case of People v. Degey (2 Wheeler’s Cr. Cas., 135), the indictment in that case charging that Degey, “during the celebration of divine service, unlawfully, unjustly and irreverently did disturb and hinder one Jonathan Vanvelser, then being the minister officiating in said church, and then being in the discharge,” etc. The form has received the sanction of Wharton in his work on Precedents (form No. 863), and is adopted in Bishop’s Criminal Procedure (Vol. 2, § 242).

In the case of the United States v. Brooks (4 Cranch C. C., 427), Grange, Oh. J., said: “An indictment at common law in England, .will lie for ‘unjustly and irreverently disturbing and hindering the curate of a parish in the exercise of his office and the reading of divine service.’ That, it is true, was for the disturbance of divine service as established by law; but in this country there is no established church, all being equally protected by law, and each sect having as perfect a right to be free from disturbance in the public worship of God,, according to their own forms, as the established church in England has by the common law.”

Our statute, already referred to, does not take away the remedy by indictment existing at common law. It is not inconsistent with the common-law remedy, and is cumulative merely. (Behan v. The People, 17 N. Y., 516; Candee v. Hayward, 37 id., 653; People v. N. Y. C. and H. R. R. R. Co., 74 id., 302.)

The demurrer was properly overruled. The conviction should be affirmed and the proceedings remitted to the Court of Sessions of Onondaga county, without prejudice to the right of the prisoner to move that court to open the judgment and grant him leave to withdraw his demurrer and plead to the indictment.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


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    CLAYTON L. HILL, as Administrator, etc., Appellant, v. JEROME HOTCHKIN, Respondent, Impleaded with J. DWIGHT ALVORD.

      Evidence — when a defendant who has made no defense cannot testify for a co-defendant, as to personal transactions with a deceased person— Gode of Oivil Procedv/re, §§ 828, 829.
    Upon tlie trial of an action brought by the administrator of a deceased payee of a promissory note against the makers thereof, one of whom claimed to be liable as a surety only and the other of whom interposed no defense, the latter was allowed, against the plaintiff’s objection and exception, to testify in behalf of his co-defendant as to personal transactions and communications had by the witness with the deceased.

      Held, that the testimony was inadmissible under sections 828 and 829 of the Code of Civil Procedure.

      Appeal from a judgment of the Onondaga County Court in favor of the defendant Hotchldn, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Oott & JEvarts, for the appellant.

      D. Pratt, for the respondent.
   Smith, J.:

This action was brought upon a promissory note made by the defendant for $600, payable to the order of Lewis O. Hill. The defendant Hotchldn was a surety for his co-defendant, though not signing as such. The defenses interposed were a general denial, usury and a material alteration of the note, the last of which is the only one litigated. The action was commenced in the name of Hill, the payee, and he having died the action was revived and continued in the name of his administrator, the present plaintiff. After answer the defendant Alvord withdrew his defense, and thereafter was called as a witness by the defendant Hotchldn, and testified to personal transactions had between himself and the payee of the note, regarding ■ said note, under appellant’s objection and exception. The plaintiff was nonsuited on the ground that a material alteration was shown in the place of payment from “ The Onondaga County Savings Bank ” to the dwelling-house of L. O. Hill.”

It was ruled by the court below, and is now insisted upon by the respondent’s counsel, that the defendant Alvord having withdrawn his defense, was a competent witness for his co-defendant to prove personal transactions and communications between himself and the original plaintiff Hill, since deceased, respecting the note, under sections 828 and 829 of the Code of Civil Procedure.

Section 828 provides that a person shall not be excluded or ■excused from being a witness by reason of his interest or his being a party, except as otherwise specially provided in the title of which that section is a part. The only other provision in the same title affecting the present question is in section 829, and it is to the effect that a party or a person interested in the event shall not be examined, “in his own behalf or interest,” against the administrator, etc., of a deceased person, concerning a personal transaction or communication between the witness and the deceased.

The case of Church v. Howard, decided by the Court of Appeals in January, 1880, and as yet not reported, seems to be an authority against the respondent. A copy of the opinion of Miller, J., in which all the members of the court, except Folger, J., who was absent, are reported to have concurred, is annexed to the points of appellant’s counsel herein, and so far as we can ascertain from the opinion and the report of the case below (17 Hun, 5), that case and this are substantially alike in their facts bearing upon the cpiestion under consideration. That was an action on a promissory note brought by the administrator of the deceased payee against the two makers, one of whom was the surety of the other. The principal debtor, Fargo, offered no defense at the trial, and he was called as a witness for the surety and permitted to testify to personal transactions between himself and the deceased respecting the note. The Supreme Court, in the third department, held that as he was not called or examined as a ivitness in his own behalf or interest, he was a competent witness as to such transactions. The Court of Appeals reversed this, holding that he was interested in the event, and, therefore, incompetent to testify, the argument being that he was interested in avoiding a judgment against his surety, which would entitle such surety to prosecute and obtain a judgment against him which he might be compelled to pay. The decision, and the reason assigned for it, seem to cover the case at bar, and although there were other grounds for the judgment, the case is nevertheless an authority upon the point in question.

Were we at liberty to treat the question as an open one, we would incline to the opinion that the real inquiry was not whether the witness was interested in the event, but whether his testimony was offered or could be used in his own interest or behalf, and that even if the question whether he was interested was material, he, having withdrawn his defense, and the plaintiff being entitled thereby to a judgment against him for the amount of the debt and the costs of the action up to the time of such withdrawal, was no longer interested in the event, inasmuch as the surety could only look to him for indemnity to that amount,/and not for the costs of his defense thereafter persisted in without the assent of his principal. (Short v. Kalloway, 11 Ad. & El., 23; Holmes v. Weed, 24 Barb., 546; Allis v. Stafford, 14 Hun, 418.) But we cannot distinguish the present ease from Church v. Howa/rd, and it is our duty to follow that case so long as it has the sanction of the Court of Appeals.

The motion for a new trial on the minutes was improperly made, no verdict having been rendered. (Code of Civil Procedure, § 999.)

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

Talcott, P. J., and Hardin, J., Concurred.

So ordered.


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    HENRY STICKLE, Respondent, v. THOMAS REED, as Sheriff of Cayuga County, Appellant.
    Sheriff— right of, to receive a prisoner after a volunia/ry escape from a constable.

    One Anderson having been arrested by a constable by virtue of an execution against his person, issued upon a judgment recovered by the plaintiff, was allowed by the constable to go at large upon his promise to appear the next morning and give bail. On the next day the constable not finding Anderson left the execution at the sheriff’s office, where it was received by a deputy who found Anderson and told him that he had the execution and had come after him, whereupon Anderson voluntarily went with him to the jail and there gave bail for the limits. Anderson having afterwards gone beyond the jail limits this action was brought against the sheriff for an escape.

      Held, that although after the voluntary escape suffered by the constable the sheriff had no right forcibly to take and detain Anderson under the execution, yet that upon his voluntarily surrendering himself to the deputy the sheriff had the right to receive him and was liable for his subsequent escape.
    Appeal from a judgment in favor of the plaintiff, entered upon a decision of a justice of this court upon a trial at the Cayuga Circuit without a jury.

      J. T. Pingree, for the appellant.
    The escape of Andrews in the first instance was a voluntary escape. (Lockwood v. Merceream,
      6 Abb. Pr., 206; Crocker on Sheriffs, § 5YY; Olmsted v. Raymond, 6 Johns. E.., 62; Wheeler v. Rail/y, 13 id., 366 ; Palmer v. Hatch, 9 id., 329.) It being a voluntary escape, Andrews could not be legally retaken or detained by the constable, unless the plaintiff in the execution had taken out new process. (Lansing v. Fleet, 2 Johns. Cases, 3; Thompson v. Lockwood, 15 Johns E., 256; Clark v. Cleveland, 6 Hill, 344; Littlefield v. Brown, 1 "Wend., 398.) If the constable could retake or detain Andrews, the sheriff of Cayuga county could not. (2 E. S. [Edm. ed.], 266, § 131; id., 281, § 213.) The sheriff should have the right to show that Andrews was illegally detained by him, and when shown, it should be a defense to him, upon the principle that having no right to detain the prisoner, the plaintiff has lost nothing by the escape. (Cgnant v. Chapman, 2 Queen’s Bench Epts., Ill, cited in Carpenter v. Willett, 18 How. Pr., 408 ; Ray v. Hogéboom, 11 Johns. B., 432; Littlefield v. Brown, 1 Wend., 398; Thompson v. Lockwood, 15 Johns. B., 256.)

      A. W. SJmrtleff, for the respondent.
   Smith, J.:

This is an action for an escape. Stickle, the plaintiff, recovered a judgment in Justices’ Court in the county of Cayuga, against one Andrews for falsely and fraudulently obtaining money, and a body execution was issued thereon in the usual form to one Bude, a constable, who arrested Andrews at Weedsport and took him to Auburn. While in Auburn, the constable, instead of taking Andrews to the jail, as the execution commanded, took him, at his request, to the office of one McLaughlin, where he left him, upon his promise that he would appear the next morning and give bail. The constable on his return not finding Andrews, went to the office of the sheriff, the defendant herein, and there left the execution. It was received by a deputy sheriff, who the next morning met Andrews and told him that he had the execution and that he had come after him, and thereupon Andrews, without any force being used upon him, went with the deputy to the sheriff’s office and there gave bail for the limits. He afterwards went beyond the jail liberties, and thereupon this action was commenced. The trial judge held the defendant liable and ordered judgment against him for the amount of the justice’s judgment with interest.

The ground taken by the defendant at the tidal and on this appeal is, that Andrews was not in the lawful custody of the- sheriff and the latter had no right to detain him, and consequently that there was no escape from his custody and the action cannot be maintained. The constable, in permitting Andrews to go on condition that he would appear the next morning and give bail, suffered a voluntary escape. The escape being voluntary, the constable could not afterwards retake or detain the prisoner without a new authority from the plaintiff in the execution, nor would the voluntary return or assent of the prisoner prevent the liability of the constable for the escape. (Lansing v. Fleet, 2 Johns. Cas., 3; Thompson v. Lockwood, 15 Johns. R., 256.) It follows that if the plaintiff had sued the constable for the escape, it would have been no defense to the latter to show that after the escape he had rearrested the prisoner and delivered him to the custody of the sheriff under the execution. But if the prisoner had been so rearrested and delivered to the sheriff, and the sheriff had received him in custody, and had subsequently permitted him to escape, would the previous escape suffered by the constable have been available to the sheriff as a defense? We think not. It is well settled that if a new sheriff regularly receives a prisoner from his predecessor, he is bound to detain him and is answerable for his escape, although a voluntary escape may have existed in the time of his predecessor: (Rawson v. Turner, 4 Johns. R., 469, and cases there cited by Van Ness, J., p. 413.) In the case before us the execution on which Andrews was arrested commanded not only the constable to arrest him, but also the keeper of the jail to receive and safely keep him until discharged according to law. The execution was delivered by the constable to the sheriff. Andrews, the morning after the constable let him go, went to the sheriff’s office and gave bail. Whether he did so voluntarily and in pursuance of his promise, or whether he was rearrested by the deputy and forced to go, was a question of fact upon which the witnesses differed somewhat, and which, we are to assume, was decided in favor of the plaintiff. It cannot be claimed that the deputy had any right to arrest Andrews. But if, as the testimony of the deputy warranted the court in finding, Andrews voluntarily went with. Mm to the slierifE’s office on being informed that he bad tbe execution, and there gave bail, we are of tbe opinion that tbe sheriff bad tbe right to receive bim under tbe execution, and that it was Ms duty to thereafter keep bim in custody. Tbe rule invoked by tbe sheriff is designed for tbe protection of tbe plaintiff in tbe execution, by making bis positive assent requisite to constitute a waiver which shall release tbe liability of tbe officer resulting from a voluntary escape permitted by bim. In this case tbe plaintiff, by bringing suit against tbe sheriff, elected to treat tbe prisoner as having been lawfully in tbe sheriff’s custody, and doubtless a satisfaction of tbe judgment be has recovered here would bar an action on bis part against tbe constable for tbe escape permitted by bim.

Tbe judgment should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed.


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    AUGUSTA W. BATES, Plaintiff, v. THE FIRST NATIONAL BANK OF BROCKPORT, Defendant.

      Evidence — oral agreement made by one when depositing money to the credit of a/nother — when evidence of it is inadmissible.

    The plaintiff having received from the administrator of her father’s estate two checks for $500 each, payable to her order,-delivered the same, indorsed in blank, to her husband with directions to deposit the same to her credit with the defendant, The First National Bank of Brockport.
    The husband deposited the checks in the bank to the plaintiff’s credit and received a pass-book from the defendant, in which the amounts were credited to her. In an action by the plaintiff to recover the amounts so deposited, the defendant offered to prove that at the time the deposits were made it was orally agreed between the husband and the teller of the bank that they should be credited to the plaintiff upon the condition that the same should be withdrawn upon checks made by the plaintiff, or by the husband in her name, and that the amounts so deposited had been subsequently withdrawn by checks made by the husband in the name of the wife.

      Eeld, that in the absence of evidence tending- to show an authority in the husband to act as the agent of his wife, or any ratification by her of his acts, the evidence was inadmissible and was properly excluded.

      Motion for a new trial on exceptions ordered to be heard in the first instance at General Term, after a verdict in favor of the plaintiff directed by the court..

      J. D. Decker, for the plaintiff.

      W. F. Gogswell, for the defendant.
   Talcott, P. J.:

This is a motion for a new trial on exceptions taken at the Monroe Circuit, and reserved to be heard at the General Term in the first instance.

The plaintiff received from the administrator of her father’s estate by checks signed by him as administrator, on the 2d of May, 1874, and on the fourteenth of the same month, two separate sums of $500 each. The administrator’s checks being payable to the order of the plaintiff, she indorsed them in blank and delivered them to her husband, Gustavus Bates, with whom she was then living in marital relations. The said $1,000 belonged wholly to the plaintiff, and was her separate estate. She indorsed and delivered the respective checks to her husband, with directions to take the checks to the defendant’s bank and deposit the amount in her name, and bring her back a pass-book.

On the occasion of the first deposit he took the original administrator’s check to the banking office of the defendant, which made out a pass-book of the defendant, indorsed on the outside with the words: First National Bank of Brockport, N. T., in account with A. W. Bates,” and with the following entry therein:

First National Bank ok Brockport,

In accownt with Augusta W. Bates, Or.

Dr.

May 2d, 1874 ........................................ $500

There was no other writing or printing in the pass-book. This book was brought back from the bank to Mrs. Bates, and delivered to her by her husband. At the time when she deliyered the second check to her husband she also indorsed it in blank and gave it to her husband with her bank-book, and with directions to deposit it in her name and for her. Her husband took the pass-book and brought it back to her on the same day, the bank having entered therein another credit to her like the first, as follows: “ May 14th, 500.” The husband delivered the pass-book to the plaintiff, since which time down to the time of the trial on which it was produced in evidence, no other writing or memorandum appearing therein, except the entries aforesaid with the two credits of $500 each to the plaintiff.

On the trial the defendant sought to prove by its teller that on the 2d of May, 1874, Gustavus .Bates, the husband, came to the banking office of the defendant, and with the first of the above-mentioned administrator’s checks and deposited the same with the oral agreement made between the husband and the teller, acting for the bank, that the money specified in the check should be deposited to the -credit of the plaintiff, with the condition that the same should be withdrawn upon checks made by the plaintiff, or upon checks made by the said Gustavus Bates, in her name, and that the same was subsequently withdrawn by a check made by the said Gustavus in the name of the plaintiff.

Upon the objection of the plaintiff’s counsel, the court ruled that the evidence was competent and material, provided the counsel for the defendant expected to follow it with any evidence of the agency of Mr. Bates to sign checks in the name of his wife, or of the wife’s permission to the husband to withdraw the money in his own name or in her name; or if the counsel for the defendant expected to follow it with any evidence of ratification by the plaintiff of the act of withdrawal of the moneys.

The defendant’s counsel thereupon stated that he offered the evidence irrespective of the fact of such agency, or any subsequent ratification, and upon the sole ground of the husband’s contract with the teller, made at the time and constituting a part of the contract. And thereupon the court sustained the objection to the testimony, to which the defendant’s counsel excepted.

The defendant then offered to prove that at the time of the second deposit, on the fourteenth of May, Gustavus Bates came to the bank with $500 in currency, which was deposited with the like oral agreement, and that the same was withdrawn by Gustavus Bates upon a check made by him in the name of the plaintiff, and Upon the same statement made by the counsel as to the agency and ratification. The evidence was, upon the objection of the plaintiff’s counsel, rejected.

The defendant, offering no further evidence, the jury under the direction of the court rendered a verdict for the amount of the two deposits with interest from the time of the demand, and ordered the exceptions to be heard at the General Term in the first instance. We think the rejection of the evidence offered was entirely correct, and the exception to its rejection, under the limitations specified.by the court, was not well taken. The pass-book was evidence that the money had been deposited by or on account of the plaintiff, and the delivery thereof to the agent of the plaintiff for the purpose of making the deposit, to be delivered to her without any intimation that the money was to be drawn in any other than the usual manner, to wit, upon the check of the party to whose credit the deposit was made, operated as an estoppel upon the bank against setting up any unusual conditions, not made known to the party to whose credit the money purported to have been deposited by an entry in the pass-book or otherwise.

When a person deposits money to the credit of another, prima facie he is acting for the benefit of the person to whose credit the money is deposited and as his agent, and for a bank to claim that there was an agreement, secret so far as the person to whose credit the money was deposited is concerned, whereby it could be withdrawn in some unusual manner, not communicated or known to the creditor, would open the door to much fraud and deception.

The plaintiff seeing the money credited by the bank to herself individually, and without any intimation that it could be withdrawn otherwise than by her personal check or consent, could rightfully rely on the engagement of the bank, represented by the pass-book as unconditional. If Mrs. Bates had in any manner been notified that her agent to make the deposit had bargained for a right to draw out her money without her knowledge or consent, she could have prevented it by a notice to.the bank or otherwise; but having no intimation to that effect, she was lulled into security by the entries in. the pass-book and prevented from taking any measures to counteract any attempt on the part of her husband to make a fraudulent or unjustifiable use of her money in which he had no right or interest.

A new trial is denied and judgment ordered for tbe plaintiff on the verdict.

Hardin, J., concurred; Rumsey, J., dissented.

Ordered accordingly.