author: Daly. J.

text:
    The People, Pl’ff, v. James Kelly et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Recognizance—Vacation.
    Where the original papers, on motion to vacate forfeited recognizance, were mislaid, general term may direct proof of the facts to he taken before the court at special term and presented to the next general term.
    Motion to vacate judgment entered on a forfeited recognizance. J. R. Fellows, for pl’ff; A. J. Hochstadter, for def’ts.
   Daly. J.

The communication from the Society for the Prevention of Cruelty to Children shows that there is some inaccuracy in the statement as to the. prosecution of James Kelly and the alleged withdrawal of the charge by the society. As the original papers are said to be mislaid, proofs of the facts alleged may be ■ taken before the court at special term and presented to the next general term. The certificates of the court of sessions must be produced.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Peter Herder, App’lt, v. Theophilus J. Bloomer et al., Resp’ts.

      (New York Common Pleas, General Term,,

      Filed April 2, 1894.)

    Negligence—Breach oe contract.
    Under agreement to exercise due care in securing door of plaintiff’s loft, when making use of same for purposes of ingress and egress to his part of premises, defendant is liable for theft of plaintiff’s goods which resulted from his negligence in this respect.
    Appeal by the plaintiff from a judgment of dismissal rendered by the justice of the district court in the city of Hew York for the second judicial district.
    Action for damages to personal property by reason of negligence.

      S. S. Bennett, for app’lt.
   Bischoff, J.

The basis of the plaintiff’s cause of action is the negligence of the defendant in the performance of .a duty assumed by the latter under an agreement between the parties. This agreement, as alleged, was that the defendant should exercise due care in securing the door of the plaintiff’s loft, when making use of the same for the purposes of ingress and egress from a certain part of the premises reserved to the uses of such defendant. Apparently the agreement in question formed part of the mutual agreements between the parties in their relation rnspectively of tenant and landlord, and it would seem, also, that an injury to the plaintiff by the theft of his goods was a contingency naturally within the contemplation of the parties when making the agreement, therefore the defendant may be answerable in damages for this result of his negligence, when established. See Addison on Torts, Ch. 1, § 1, The justice, in holding that the plaintiff must prove collusion between the defendant and the thief, and in rejecting the offer of proof of the defendant’s negligence, obviously misconceived the nature of the action, and the resulting dismissal of the complaint was error which requires a reversal of the judgment. Judgment reversed and a new trial ordered with costs to appellant to abide the event. All concur.


text:
    Lewis A. Olsen, Resp’t, v. Andrew J. Ensign, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894 )
    1. Witness—Credibility.
    The uncontradicted testimony of a party, in his own behalf, is not conclusive.

      S. Note—Consideration—Burden.
    The presumption of law is that a promissory note is given for a valid legal consideration, and the burden of attacking it must be sustained by the maker.
    Appeal from a judgment of the district court in the city of New York' for the third judicial district, rendered by the justice, without a jury, in favor of the plaintiff. Action upon a promissory note.

      Andrew J. Ensign, app’lt in person; Ellison Crawford, for resp’t.
   Bischoff, J.

To action upon a promissory note brought by a transferee after maturity, the defense is that no consideration was given for the promise. That the plaintiff, being the assignee of an over due debt, holds the same, subject to all the equities existing between the orignal parties is the settled law, Littlefield v. Albany County Bank, 97 N. Y. 581, and the defense in question might well prevail if properly established. Plaintiff proved the due assignment of the note; without contradiction, and, in the absence of affirmative proof to the contrary, it is presumed that such assignment rests upon sufficient consideration. Donnelly v. Deering, 24 Weekly Dig. 18; Belden v. Meeker, 47 N. Y. 307. The evidence in support of the defense consists of the testimony of the defendant alone and is to the effect that the note in suit was sent to the payee, one Dr. Wedekind, for discount merely, and that nothing was received by the defendant in the way of consideration. The plaintiff’s evidence consists of certain letters written by the defendant to Dr. Wedekind and also the latter’s testimony taken by commission in the state of California, which testimony is of little or no value as affirmative proof upon this issue being in a great measure a denial of recollection as to the precise points sough to be elicited by the interrogatories. From a judgment in the plaintiff’s favor the defendant appeals upon the ground that the decision of the justice is against the weight of the evidence. No exceptions for the appellant appears upon the record and therefore this ground alone requires attention. It is true that the decision as rendered involves a disregard of the defendant’s testimony, but the testimony of a party in his own behalf is not conclusive and the court is not bound, as matter of law, to regard it although it be uncontradicted. Kearney v. Mayor, 92 N. Y. 617; Dean v. Van Nostran, 23 Week. Dig. 97 ; Wolf v. Farley, 40 St. Rep. 808 ; Wilson v.Wyandance Springs Improvement Co., 4 Mis . R. 605 ; 54 St. Rep. 242. While it is not the province of the appellate court to review the finding of the court below as to the credibility of a witness, Quincey v. Young, 5 Daly, 335, we find certain statements in the defendant’s testimony which would justify in themselves the finding here made. The witness’ denial of the existence of any indebtedness to Wedekind, at the date when one of the letters in evidence was written to the latter by such witness promising to pay a certain debt for which he there confessedly assumed responsibility, most seriously affects his credibility, O'Brien v. McManus, 13 Daly, 37, and the value of his testimony is not enhanced by the following extract from his cross-examination. Counsel for plaintiff in questioning defendant as to the cross-interrogatories prepared by him, for the examination of the witness Wedekind by commission, asked as below: “Q. You asked, ‘Do you remember having a conversation with said Ensign at your study in the church on Christopher street,, and that you then said to Ensign that you hadn’t the money to discount any note for him, and that you were sorry you "could not let him have $200'?’ A. Yes, sir. Q. What did he say in reply?' A. ‘I don’t remember any such conversation.’ Q. You did have a conversation with him in the study ? A. I don’t know that I did; I can ask any questions I am a mind to.” As to the plaintiff’s evidence, in the form of the testimony of Dr. Wedekind, it cannot be said to establish affirmatively the existence of a consideration for the note in suit but no inherent contradictions therein appear and it may well be read as showing that the deponent had not sufficient recollection as to the exact circumstances of the transaction to enable him to give direct answer consistently with truth. The judgment, however, does not, of necessity, rest upon this testimony alone. That a promissory note is given for a valid,, legal consideration is the presumption of law in this state and the-burden of attacking it must be sustained by the defendant. Bottom v. Scott, 11 St. Rep. 514; Anthony v. Harrison, 14 Hun, 215; affirmed, 74 N. Y. 613; 1 Parsons on Bill & Notes, Ch. 6, § 1.. That this burden has not been succesfully sustained the justice below has determined, and that this determination was authorized has been shown above. Judgment affirmed with costs. All concur.


author: Pryor, J.

text:
    John Claflin et al., App’lts, v. The New York Standard Watch Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Appeal—Evidence.
    After affirmance of an order denying a new trial by the general term of the city court, this court cannot reverse,the judgment because the verdict is against the weight of evidence.
    2. Same—Motion to dismiss.
    On appeal from the city court, this court cannot reverse the judgment on the ground that the verdict was without evidence to support it, in the absence of a request by the appellant for a dismissal or direction in his favor, and an exception to a denial of the motion.
    8. Bills and Notes—Burden.
    In an action on a promissory note, an answer of payment is an afirma- - tive defense ; and the burden of proving it is on the defendant.
    4. Appeal—Objection.
    A general objection that evidence is immaterial and irrelevant, is insufficient to present the point that the fact proposed to be proved is not within the issues.
    Appeal from judgment of general term of the city court affirming judgment for defendant or verdict, and order denying new trial. Action on promissory note ; answer, payment and counterclaim. The opening was awarded to the defendant. The litigation involved only the counterclaim.

      Charles 17. Gould, (John L. Wilkie, and Lloyd M'K. Gowan, of ■counsel), for app’lt; John W. Weed, for resp’t.
   Pryor, J.

The bulk of appellant’s very voluminous brief, is addressed to the point that the verdict is without proof to sustain it, or at all events, is against the weight of evidence. But, since at no stage of the trial was a motion made by the plaintiffs for a direction in their favor, we are precluded from consideration of the question whether the verdict be unsupported by evidence, Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544; and by affirmance of the judgment and the order denying a new trial by the general term of the court below, we are equally powerless to reverse on the ground that the verdict is against the weight of ■evidence. Arnstein v. Haulenbeck, 16 Daly, 382; 34 St. Rep. 297; Stark v. Grant, 16 N. Y. Supp. 526 ; 42 St. Rep. 36. Our function, therefore, is confined to a review of errors in law duly presented by exceptions to the rulings of the court. The exception taken to the allowance of the opening to the defendant, is untenable. A plea of payment is new matter; and the burden of proving it is upon the defendant. McKyring v. Bull, 16 N. Y. 297, and cases collected in note, 69 Am. Dec. 705. The chief allegation of error by the appellants, proceeds upon the .assumption of an account stated between the parties. But, whether the account had been stated, was, on the evidence, a question of fact; was submitted to the jury in an unexceptionable charge; and, with us, the verdict is conclusive of the issue. The recall of the witness after the close of the cross-examination, and his testimony to matter not strictly in rebuttal, were allowable in the discretion of the court, and, hence, are not the subject of exception. Marshall v. Davies, 78 N. Y. 414. A refusal to strike out evidence, admitted without proper objection, is not error of law, Holmes v. Moffat, 120 N. Y. 159; 30 St. Rep. 779; and an objection to evidence as irrelevant and immaterial is not equivalent to a claim that it is not within the pleadings; for, evidence may bear upon the issue, and yet so remotely and insignificantly, as to be immaterial and irrelevant; The multitude of other exceptions in the record have been examined, and the result is a clear conviction that they are invalid. The explore them them in detail ■and elaborately demonstrate the futility of each, would involve a labor as tedious as unprofitable. Upon a review of the entire record we are satisfied that, in the trial of the cause, no error was committed to the prejudice of plaintiffs, and that the judgment is in accordance with the justice of the case. Judgment affirmed, with costs.

All concur.


author: Daly, C. J.

text:
    Cochran Cotton Seed Oil Company, Resp’t, v. Phoenix Insurance Company of Brooklyn, App’lt.

      (New York Common Pleas, Gentral Term,

      Filed April 2, 1894.)

      1. Reformation—Contract.
    Where, in renewing an insurance policy, both parties were mistaken in supposing that the new policy contained the terms of the old policy, it should he reformed.

      2. Same—Waiver. - .
    The company does not waive the right to reform by submitting the facta to the adjuster after the fire.
    3. Same—Knowledge of agent.
    The knowledge of the company’s clerk, who drew the policy, as to its contents, is not imputable to the company.
    Appeal by defendant from a judgment entered upon a verdict of a jury at a trial term of this court. The action was to recover upon a policy of fire insurance upon property of the Cochran Cotton Seed Oil Company’s works at Rock Hill, South Carolina.

      Lyon & Smith (Edward P. Lyon, of counsel), for app’lt; Robert B. lioneyman, for resp’t
   Daly, C. J.

The plaintiff obtained a verdict for $3,000, the full amount of its policy of fire insurance, issued by defendant, upon “ all kinds of fixed and movable machinery, shafting, belting, and piping ” in its brick building and extension in Rock Hill, South Carolina. The defendant claimed the policy to be void because plaintiff had procured other insurance, not within the permission in the policy for “ additional concurrent insurance.’’ It was claimed that the other insurance was not concurrent because the policies therefor (which embraced other property), did not specify the amount of risk upon the particular property described in the policy in suit, but insured a gross amount upon that and other property.

Whether such insurance was “ concurrent ” was left by the trial court to the jury to determine; but there can be no question upon this point, because such insurance was expressly recognized and provided for under the subsequent clause of the policy, which provided for pro rata contribution by other insurers, and declared that “ Any blanket or general policy, or policies, attaching in whole, or in part, to the property specified in this policy, shall, as between the assured and this company, be considered as contributing insurance'for the full amount of such policy or policies, and liable, as such to pay pro rata any loss, total or partial, on the property herein specified.” This provision clearly intends that such policies were not deemed non-concurrent.

But the principal issue in the case arose upon the claim of defendant that the policy in suit, as issued, did not express the intention of the parties, to it, owing to a mistake in its terms, and that it should be reformed. The alleged mistake was the omission of certain provisions contained in a previous policy issued by defendant to plaintiff. When this previous policy was about to expire plaintiff’s agent Mr. Zimmele, brought it to defendant’s agent with a request for renewal. It contained several successive endorsements as to the property insured and the amount of risk on different items. The first endorsement was made September 11, 1891, and is as follows: “This policy is made to cover from this date as follows: Three thousand dollars on all kinds of fixed and moveable machinery, shafting, belting and piping." This endorsement was inserted in the renewal policy, the other and subsequent . endorsements being omitted by the clerk or draftsman in the office of defendant’s agents. His instructions were to make out a renewal of the original policy and his omission is not to be accounted for except as the result of inadvertence. The subsequent endorsements on the original policy were made respectively October 8th, 1891, and October 18th, 1891. The former divided the $3,000 of insurance pro rata among several items aggregating $14,315. The final endorsements divided the $3,000 pro rata among the same and additional items aggregating in valuation $21,490.50. The defendants contend that by a renewal of the policy the plaintiff intended its renewal as it was last endorsed, and as it existed therefore, when the renewal was asked for. This contention appears to be not only reasonable but upon the evidence unquestionable. Defendant's witnesses testify that Hr. Zimmele simply ordered the old policy to be renewed, and he does not deny it; not being able to recollect what he said at the time. There is not the least evidence that an application was made for a different policy at that time, nor for any alteration of the ferrns of the old one. When the new policy was made out it was seen by Mr. Zimmele, but he did not examine it closely ; neither did the agents, in whose safe it remained with other policies until the fire. It is clear from the facts that Mr. Zimmele had no other policies in mind than that which existed when he ordered its renewals ; nor had the agents ; and that the minds of the parties agreed upon the terms of a policy such as then existed; and that both were mistaken in supposing that the new policy contained those terms. The difference between the two policies caused by the mistake was very material. The policy intended to be renewed, as it existed at th.e time of renewal, provided as follows:

$3,000.00 pro rata on each item and amt. not exceeding in all $3,000.

$15.000.00 on fixed and movable machinery of every description, shafting, belting, piping, heating and lighting apparatus, pulleys, hangers, tools, furnitures and fixtures, apparatus and implements used in their business.

$3,500.00 on their engine and connections in engine house, wheel, shafting, belting in engine room.

$2,400.00 on boiler and connections in boiler house, and boiler house.

$65.00 on tank in rear of main building.

$375.50 on their seed annex.

All contained in the brick metal roof building and its frame metal roof extension of the Rock Hill Cotton Seed Oil & Fertilizers Co., situated on the west side of the C. C. & A. Railroad, Rock Hill, S. 0.

$150.00 on furniture and office situated on the west side of the C. C. & A. Railroad, Rock Hill, S. C.

Total $21,490.60.

Under such policy, in case of a total loss upon the item of machinery, the assured could recover only the proportion of the $3,000 insurance which the value of such machinerv $15,000, bore to the aggregate valuation, (21,490.50; that is to say, he would be entitled to a little over seventy per cent, of the $3,000. Under the policy unreformed he would be entitled to the whole $3,000 in case of such total loss. The jury gave a verdict for that amount, refusing to find that the policy should be reformed. • The defendant claims that the recovery should be reduced to $2,424.05 with interest upon the ground that the right to reformation was established. Plaintiff urges that defendant waived the right to reformation by submitting the facts to the adjuster after the fire, who subsequently adjusted the loss at $3,000. It is difficult to understand how defendant waived its right by submitting the facts in support of its condition to the person whose decision was appealed to. On the contrary, the facts show that the right now set up was claimed from the beginning, i. e. from the time of the fire when the mistake was discovered. It is also urged that defendant must be deemed to have issued the policy with knowledge of its contents because the knowledge of the clerk who drew it is imputable to his employers, defendant’s agents. If this were so it would exclude a principal from all relief in case of mutual mistake in the term of an agreement drafted by his agent, who had inadvertently omitted a material clause. Upon the issue presented the jury should have found for the, reformation of the policy and the plaintiff ought to have made out a case upon the corrected agreement. As no recovery under it, beyond the amount for which defendant now offers to accept the modification referred to could be had, the judgment will be reduced accordingly if plaintiff agree thereto, otherwise a new trial should be •ordered. The judgment is modified by reducing the verdict to $2,424.05, with interest, and costs and as so modified is affirmed if plaintiff consent without costs of this appeal to either party; otherwise, judgment reversed and a new trial ordered, with costs to appellant to abide the event. All concur.


text:
    Zachariah O. Nelson et al., Resp’ts, v. The Easton and Amboy Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Appeal—Vebdict.
    When, and upon what principles, the general term, may set aside a verdict as against the weight of evidence.
    Appeal from judgment on verdict and from order denying new trial. The facts sufficiently appear in the opinion.

      Goodrich, Beady & Goodrich (W. W. Goodrich, of counsel), for app’lt; Stewart Maclclin (Anson B. Stewart, of counsel), for xesp’ts.
   Pryor, J.

The main contention of the appellant is, that the verdict was against the weight of evidence. Of the power and the duty of this court, in a proper case, to set aside a verdict because against the weight of evidence, no question can be made and no doubt entertained. Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25, 27 ; Kummer v. Christopher & T. St. R. R. Co., 21 N. Y. Supp. 941; 50 St. Rep. 332. In what case the power exists and the duty is incumbent, the court of appeals defines with precision and authority : “ The general term has the power, and it is its duty, to examine and determine whether the verdict was against the weight of evidence and the justice of the case; and if of opinion that it was, to set aside and order a new trial.” Hamilton v. Third Ave. R. R. Co., supra. But, “in reviewing the determination of a trial court on questions of fact, when the evidence is conflicting, an appellate court in not warranted in reversing, upon the sole ground that, in its opinion, the trial court should have reached a different conclusion; to justify a reversal it must appear that the proofs so clearly preponderated in favor of a contrary conclusion that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion.” Baird v. The Mayor, 96 N. Y. 567. And this upon the fundamental principle of our jurisprudence that, ad quaestionem facti respondent juratores. u It is of the greatest consequence to the law of England and to the subject, that these powers of the judge and the jury be distinct, that the judge determine the law and the jury the fact; and if ever they come to be confounded, it will prove the confusion and destruction of the law of England.” Lord Hardwicke in Rex v. Poole, Cas; tem. Hardw. 28. “ Whether there is any evidence is a question for the judge; whether the evidence is sufficient is a question for the jury.” Brooms' Maxims 108. Wherefore, should the judge arbitrarily, or upon his own mere estimate of the probative force of the evidence, nullify a verdict, he would painly usurp upon the province of the jury.

With these principles for guidance, we are to determine whether the verdict before us should stand.

The action is for the value of a canal boat and cargo, lost at sea while in tow of the defendant’s tugs. The responsibility of the defendant is not as common carrier; but it is bound only to ordinary care and skill and is liable only for the correlative degree of negligence. Caton v. Rumney, 13 Wend., 387; Alexander v. Greene, 3 Hill, 9; Wells v. Steam Nav. Co., 2 N. Y. 204. The concession is, that the defendant’s tugs were in all respects sufficient, and the tow properly made up ; and as the cpmpetency of the men in control of the fleet was not impeached by evidence, that too, must be accepted as a fact in the case. The charge in the complaint is, that plaintiff’s loss was the effect of negligent navigation. Effort was made on the trial to show that the wreck of the boat was due to want of skill or of care in putting back from the fury of the storm; but this, as appeared by unchallenged proof, was the proper thing to do and was done in the proper manner. The only fault imputed to the defendant, upon the evidence and recognized by the court, was that it ventured out with its tow in the face of a peril which no prudent seaman would have encountered. The critical point was as to the menace of danger at the moment when the masters declined a refuge in the Kills and resolved to proceed across the bay. A witness testified that “ it it a when to the mouth of the Kills.” Another, “ the wind, as the tow went out of the Kills, was blowing hard.” Another, “it commenced to snow and blow pretty hard ; the wind was northwest; a perfect winter wind came; from that, the wind increased in velocity. It was a holy terror you might say ; the worst I have been in for forty years.” Another, an expert, that “the weather was not fit to take any boat out; there is no captain wo,u!d do it; I wouldn’t go in the boat if he would.” Still another, also an expert, “ it was blowing a gale, hard, and snowing; it was not prudent to take'the tow out of the Kills into the open bay.” Evidence was given of a custom of tows going out of the Kills, if the wind was blowing hard, to stop at Port Johnson, and the fact was conceded, that after the tow got into the open water, a storm overtook it, in the fury of which the plaintiffs’ boat was sunk. "Undoubtedly evidence to the contrary of this testimony was adduced by the defendant, which, if believed, would authorize the inference of due care in venturing out of the Kills. But, upon the conflict between the witness, it was for the jury to determine their credibility and to ascertain the real fact. The issue was presented to them in a charge singularly clear and comprehensive, and so favorable to the appellant that no exception was taken to any of its propositions. The jury were instructed that the defendant was liable only on the ground of negligence, that an error of judgment on the part of the master was not even presumptive evidence of negligence ; that where the circumstances are evenly balanced, which indicated a choice of action in time of danger, the master’s decision in the matter of navigating the'vessel is conclusive; that in considering the action of the master, the question was not whether his order was the best in the light of subsequent events, but whether, under the circumstances in which he was placed, it was that of a prudent and skilful commander; that if the person in charge of the navigation of the tow used reasonable judgment, the verdict must be for the' defendant. What more could the appellant have asked? How was it possible for the jury to err adversely to appellant in the application of the law to the evidence ? The inevitable inference from the charge is, that the jury found upon the issue in conformity with the testimony of the plaintiff’s witnesses; and it is not for us to substitute our opinion for the judgment of the tribunal constituted by law to try the facts. Even if the witnesses for the defendant be greater in number, it matters not; witnesses are weighed, not counted; and the testimony of the discredited many is overborne by the testimony of the credible few. The opportunity of observing the demeanor of the competing witnesses is of inestimable value in testing the truth of their testimony ; and, destitute of so decisive a criterion, we are not at liberty to challenge the determination of the jury; unless, indeed, it involve a conclusion that shocks the judgment, or betrays misapprehension, or imports the bias of some sinister interest or disturbing passion. We are clear in the conviction that to set aside this verdict would be an encroachment on the constitutional functions of the jury. The seaworthiness of the plaintiff’s boat was also an issue on conflicting evidence, which the verdict of the jury conclusively settles. It remains to examine appellant’s exceptions to the admission of evidence. We are of opinion that the witness, Nelson, knew enough of the boat to testify of its condition ; the value of the evidence being for the jury. Assuming, but not deciding, that the bill of lading was not competent evidence of the quantity of coal aboard, there is no available error in its admission, because the ground of objection stated was, “that the action is for damages to the boat, and he cannot join with that an action for the coal of which he was simply bailee.” Had the specific objection been that the paper was not competent evidence of the quantity of coal, the offer might have been waived and other proper proof produced. The avowed ground of objection was clearly untenable; a bailee for hire has a right of action for injury to property in his possession and may recover the entire damage. 4 Lawson’s Rights & Remedies, § 173.3 ; Bliss v. Schaub, 48 Barb., 339. Especially has a common carrier the right, since he is answerable to the shipper for any loss not the effect of vis major. Other exceptions are so obviously invalid as to dispense with special criticism.

Judgment and order affirmed, with costs.

All concur.


text:
    Sophie Mayer, App’lt, v. Judson Kilpatrick et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Principal and Agent—Payment oe latter’s debt.
    A party who, with knowledge of the rights of the principal, has received payment of a demand against the agent out of funds belonging to the former, is liable in an action of conversion.

      2. Same—Agent.
    He cannot escape liability on the ground that, in the conversion, he is acting for another person.
    3. Bills and- Notes—Title.
    After the utterance of a check, the title and right of possession pass to the payee, but, upon its rescission and agreement to cancel and return, they revert to the maker.
    Appeal from a judgment for defendants dismissing the complaint. Action for damages for the alleged conversion of a cheque.

      Alex. Thain, (George William Hart, of counsel), for app’lt; Hawldns & Delajield, (Eugene D. Hawkins, of counsel), for resp'ts.
   Bischoff, J.

Plaintiff by Adolph Mayer, her husband and agent, conducted a tailoring business in premises of which the husband was the lessee in person and respecting which defendants were the agents of the lessor. In connection with and for the purpose of her business plaintiff kept a deposit account with the Riverside Bank against which her husband was authorized to draw as the exigencies of the business required. On July 11th, 1891, the husband paid defendants one month’s rent by a cheque to this order and signed by him “Adolph H. Mayer, Attorney.” Several days later defendants represented that the cheque had been mislaid or lost, and upon their promise to cancel and return it when found the husband was induced to and did issue another. The substituted cheque was paid by the bank and thereafter defendants also presented and received payment of the first. The proceeds of the cheque agreed to be cancelled and returned were applied by defendants in payment of a further month’s rent which they claimed to be due the lessor and is in arrear, but the justice of which claim the husband disputed. This action was brought to recover damages for the conversion of the cheque last mentioned. The foregoing facts appeared in evidence unchallenged when plaintiff closed the introduction of direct evidence and upon motion of defendants’ counsel the court dismissed the complaint. We are of the opinion that this was error for which the judgment should be reversed. The specific grounds of the motion for nonsuit were that plaintiff had no beneficial interest in the cheque alleged to have been converted or its proceeds, and that the cheque was given by the husband to pay his personal debt; also, that defendants were not liable because they received the cheque as agents for the lessor,. In view of the facts that the cheque alleged to have been converted was rescinded and agreed to be cancelled and returned by defendants after another had been given them in its place, and that it does not appear that the husband consented to its application to the payment of his alleged disputed debt, it is too plain to require argument that defendants cannot avail themselves of the protection which the law affords one, who in good faith, and in ignorance of the rights of a subsequently ascertained principal, has received payment of a demand against the agent out of funds belonging to the former. Story on Agency, § 444. Neither can the principal authorize, or be deemed to have authorized, the commission of an unlawful act by his agent, Brown v. Howard, 14 Johns., 119, and defendants will not be permitted therefore to escape liability because in the conversion of the cheque they pretended to act for another, the lessor. It remains to consider only whether plaintiff had such an interest in the cheque, or its proceeds, as enabled her to maintain this action. In conversion it must appear that the plaintiff had the legal title to, or a general or special property in, or a right to the possession of the chattel or chose in action which is alleged to have been converted. Cooley on Torts, 2d ed. p. 517; Am. & Eng. Ency. of Law, vol. 4, p. 117; Bush v. Lyon, 9 Cow., 52; Dillenbeck v. Jerome, 7 Cow., 294; Hall v. Daggett, 6 Cow., 653. The .burden in this respect was conclusively sustained by the plaintiff since for the purpose of a nonsuit the truth of every fact of which there is any evidence must be assumed. She authorized the making and utterance of the cheque ; her husband in these-matters acted as her agent. In legal intendment therefore the cheque was her’s, not that of her agent. Before utterance of the1 cheque the legal title thereto was in her; it was her property; she was entitled to its possession. After it was uttered the title, property, right of possession, passed to the payees, - but upon its recission, and the agreement for its cancellation and return, these reverted to her.

The judgment should be reversed, and anew trial granted, with costs to appellant to abide the event.

All concur.


author: Per Curiam.

text:
    William Risk, Resp’t, v. Richard Uffelman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Appeal—Leave to go to court oe appeals.
    Where the judgment is mainly predicated of a conflict of evidence, and the questions of law involved are not of a novel or intricate character, leave to go the court of appeals will be denied.
    Appellant’s motion for leave to appeal to the court of appeals.

      Jas. R. Angel, for resp’fc; U. TV" Tompkins, for app’lts.
   Per Curiam.

The very exhaustive opinion delivered upon the affirmance of the judgment appealed from leaves no room for doubting its measure of exact justice. Risk v. Uffelman, 27 N. Y. Supp. 392 ; 57 St. Rep. 102. The flagrant, almost criminal, abuse of judicial process, upon which the judgment is founded, does not commend the appellants to favorable consideration in so far as their present motion is addressed to the discretion of the court. But the judgment is mainly predicated of a conflict of evidence and the questions of law involved are not of so novel or intricate a character that we feel justified in remitting them to the attention of the court of appeals, and for those reasons we deny the motion. Motion denied with $10 costs.


text:
    Thomas Nolan, Resp’t, v. John P. Lewis, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Appeal -Evidence.
    The general term of common pleas will have nothing to do with an appeal from a judgment of the district court, where the record discloses a conflict of evidence and presents no questions of law.
    Appeal from a judgment of the district court in the city of New York for the fourth judicial district rendered by the justice, without a jury, in favor of the plaintiff. Action for services.

      John Habenfeld, for app’lt; Thomas Nolan, for resp’fc.
   Per Curiam.

Theplaintiff sued for the value of services rendered by him to the defendant in the capacity of attorney and counsellor. As to the fact of plaintiff’s employment by defendant, the record discloses a conflict of evidence with which we have nothing to do. That the services in question were performed is not disputed and we find no reason for holding that the sum of $100, as found by the justice to be the reasonable value therefor, is excessive. No questions of law are presented by the record.

Judgment affirmed, with costs.


text:
    Louise Carlson, App’lt, v. Maria L. Winterson, Resp't.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Appeal—Restitution.
    The granting of a motion for restitution, upon reversal of a judgment for plaintiff is discretionary.
    2. Same—Action.
    The defendant has his remedy by action.
    Motion for restitution upon reversal of a judgment for plaintiff. See 3 Mise. R. pp. 63, 639; 51 St. Rep. 775; 52 id. 938.

      H. M. Hitchings, for app’lt; K F. Bulland, for resp’t.
   Per Curiam.

The granting of this motion is discretionary, and the provisions of the Code of Civil Procedure respecting restitution on the reversal or vacation of a judgment or order not exclusive. The party has his remedy by action. Haebler et al. v. Myers, 132 N. Y. 363; 44 St. Rep. 403 ; Baylies on New Trials and Appeals, 191. Since the submission of this motion it appears that the action has been retried in the court below and that the trial has again resulted in a verdict and judgment for plaintiff. We deem it therefore a proper exercise of our discretion to deny restitution upon summary application therefor. No costs of this motion.


text:
    The People, Pl’ff, v. George Lucas et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    Recognizance—Vacation.
    Where, on motion to vacate judgment entered on forfeited recognizance, the certificate of the district attorney evidently refers to a different case, the application will be denied with leave to renew upon proper proofs.
    Motion to vacate judgment entered on a forfeited recognizance.

      J. B. Fellows, for pl’ffi; F. P. Traulman, for deft.
   Daly, C. J.

The certificate of the district attorney evidently refers to a different case from that described in the certificate of the special sessions where the prisoner was sentenced to imprisonment and not to pay a fine. Application denied with leave to renew upon proper proofs.

All concur.


text:
    Grace D. Ives, Resp’t, v. Peter Quinn, App’lt. Same, Resp’t, v. William R. Converse, App’lt. Same, Resp’t, v. William F. Bartley, App’lt. Same, Resp’t, v. James S. Nathans, App’lt.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

      1. Removal—Adjournment.
    An action is not removable into this court from a district court, after adjournment at the instance of the party removing, and before an order ■ for the removal is granted.

      3. Same.
    A motion by the party desiring the removal, which necessitates an adjournment, is equivalent to an application for an adjournment.
    Appeal from judgments of the district court for the first judicial district. Actions for trespass to real property.

      Jonathan C. Boss, for app’lt; WaJceman é Campbell, for resp’t.
   Pryor, J.

In Ives v. Quinn objection is made to the jurisdiction of the court below, upon two grounds; First, that the amount of the claim was in excess of two hundred and fifty dollars; and, secondly, that the action was removed into ths court. Neither ground is tenable. As to the first; the action was for damages for trespass to real property, and the answer a general denial. The original demand was for one hundred dollars; by amendment it was increased to two hundred and forty dollars; and the judgment rendered was within this figure. True, the Bill of Particulars showed a claim for two hundred and forty dollars and treble damages; but that was ineffectual to authorize a recovery beyond the amount “stated in the complaint.” and it is this sum that limits the jurisdiction of the Justice. Code, § 3216. The second objection to jurisdiction is equally unfounded. It is too late to remove a cause into this court, after application for an adjournment by the defendant. Code, § 3216. The endorsement of the justice on the undertaking, certifies that he rejected it and refused the removal, because the undertaking was offered after adjournment and the opening of the plaintiff. The summons was returnable July 10, when the plaintiff appeared and put in an oral complaint; the defendant then interposed a general denial, and then demanded a Bill of Particulars. The Bill of Particulars is dated July 12, the trial proceeded on July 17, and the undertaking to remove was executed the same day. Defendant disputes that he asked an adjournment; but the inference is obvious that his demand for a Bill of Particulars caused the adjournment. As the demand necessitated an adjournment, it was in plain reason, equivalent to an application for adjournment. It is not apparent that the defendant objected to the adjournment. Again, no order was granted removing the cause into this court; but it is only from the time of granting such ordei; that this court has cognizance of the action. Code, § 3216. Upon the merits, we are well content to affirm the judgments on the very satisfactory opinion of the learned justice. Indeed, the defendants are fortunate to escape with so light a penalty for such lawless and oppressive conduct. The justice of the cases being manifestly with the plaintiff, we should not reverse them for technical error in rulings on evidence. Judgments affirmed, with costs. All concur.


text:
    John Robertson, as Administrator, etc., App’lt, v. The Mayor etc., of the City of New York, et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 2, 1894.)

    1. Trial—Dismissal or complaint.
    Upon a motion to dismiss the complaint on the opening, the plaintiff is entitled to the benefit not only of all allegations in the pleading and opening, but of all his offers of proof.
    2. Negligence—Municipal corporation.
    To one upon its premises by invitation, a municipal corporation owes the duty of care to keep him reasonably-free from danger ; and is liable for an injury of which a neglect of the duty is the proximate cause.
    3. Same.
    The maxim, injure non remota causa, sed próxima, spectatur, expounded and applied.
    4. Same—Railroads—Fences.
    No duty, either by statute or at common law, is incumbent on a railroad company to fence its tracks for the security of persons on them without invitation, express or implied.
    5. Same—Contributory.
    The contributory negligence effectual to defeat an action for negligent injury.
    6. Trial—Dismissal op complaint.
    A complaint for negligent injury will be dismissed on the opening' where upon such opening contributory negligence appears by necessary inference.
    Appeal from judgment on order dismissing complaint upon the opening and from order denying motion for new trial.
    Action by administrator for the death of his intestate from the negligence of defendants. The facts sufficiently appear in the opinion.

      Lamb, Osborn & Petty (Gilbert D. Lamb, of counsel), for app’It William H. Clark (Theodore Connoly and Terence Farley, of counsel), for Mayor, etc., resp’t; Frank Loomis (D. W. Tears, of counsel), for N. Y. G. & H. R. R. R. Go., resp’t.
   Pryor, J.

The action proceeds upon the hypothesis that the death of the intestate was the effect of the concurrent negligence of the defendants,—of the defendant municipality in that it invited the intestate upon premises which it wrongfully kept in an unsafe condition, and of the defendant company in that it omitted to maintain a fence to prevent access to its track.

Thedailure to guard the approach to its track, being the only negligence imputed to the defendant company, the question is: Was the company, on the facts of the case, under a legal duty to the intestate to protect her from falling from embankment upon its track ?

In reviewing the decision of the trial court dismissing the-complaint on the ground that no cause of action was apparent, we are to consider as well offers of proof as facts stated in the pleading and the opening. Clews v. N. Y. Nat. Banking Association, 105 N. Y. 398, 404; 7 St. Rep. 368; Kley v. Healy, 127 N. Y. 555, 559 ; 40 St. Rep. 215.

That the statute, chapter 282, Laws of 1854, imposed no duty on the company to fence its track for the security of the intestate, is settled by unimpeachable authority. Ditchett v. Spuyten D. & P. M. R. R. Co., 67 N. Y. 425. Donnegan v. Erhardt, cited contra, decides only that a railroad company may be under obligation to its servants and passengers to protect them against injuries occurring from the intrusion of animals on its track.

Nor, independently of the statute, was any duty incumbent on defendant company to protect the intestate from falling on its track. The case is not of a peril created in such close proximity to a highway as to endanger a passer by in the exercise of ordinary care ; Beck v. Carter, 68 N. Y. 283 ; nor yet of an injury to an invitee from a snare on the premises. Hooper v. Johnstown, etc., R. R. Co., 59 Hun, 121; 35 St. Rep. 503. The intestate was a trespasser, or at best a mere licensee ; and as such she could require of defendant company no affirmative act of safeguard and security. Cusick v. Adams, 115 N. Y. 55; 23 St. Rep. 548 ; Hooper v. Johnstown, etc., R. R. Co., supra; Splittorf v. State, 108 N. Y. 206; 13 St Rep. 472; Sutton v. N. Y C. & H. R. R. R. Co., 66 N. Y. 243; Victory v. Baker, 67 N. Y. 366, 370; Nicholson v. Erie R. R. Co., 41 N. Y. 525. The defendant company maintained nothing upon its premises of a nature to attract children, within the principle adverted to by us in Schmidt v. Cook 53 St. Rep. 85. We are of the opinion that the death of the intestate was due to no actionable negligence on the part of defendant company, and that, consequently, as to it the complaint was properly dismissed. The defendant municipality objects that the plaintiff cannot maintain the action against it, because of a failure to show notice upon the counsel to the corporation, pursuant to chapter 576r Laws 1886. But, offer of the proof was made ; and without objection that the fact was not alleged in the complaint. This was enough. Kley v. Healy, 127 N. Y. 555 ; 40 St. Rep. 215. It follows, therefore, that the case against the defendant municipality, is to be considered on the merits. The- liability of defendant, the municipality of New York, is compounded of matter of fact and matter of law—the matter of fact being, as stated in the complaint and in the opening, that the defendant invited and enticed the intestate upon its premises, and that those premises were in a condition of imminent danger to persons frequenting them; —the matter of law, that it was the duty of defendant to keep the premises in a condition of safety for persons lawfully resorting to them. If the facts be as recited, and so we are bound to accept them, we see no escape from the conclusion that the defendant is chargeable with negligence. For the principle is elementary, that “ the owner of land owes to all persons rightfully upon it the duty to keep it in a condition reasonably safe to them.” Bishop on Non-Contract Law, §848; Cooley on Torts, 304; Beck v. Carter, 68 N. Y. 283. But, conceding the defendant’s negligence, it is still a question whether that negligence was the cause of the intestate’s death. Between the boundary of defendant’s premises and the railroad track, an embankment intervened, and from this embankment the intestate fell upon the track, where she was killed by the cars of the company. Whether the slip, which was the cause of her fall, occurred on the slope of defendant’s premises or on the company’s embankment, is not known. All the plaintiff’s counsel could say was, that “ it was between the place where these children were sitting"—the top of the hill—“ and the edge of the bluff ”—twelve feet away from defendant’s premises. Thus, it is not known that the intestate sustained her injury on defendant’s ground nor from any cause there in operation. It is argued, however, that supposing she slipped and fell on the com-' pany’s embankment, still she could not have reached the place where she suffered, had the defendant intercepted her egress from its grounds by .a barrier. But the defendant’s obligation was only to save her from injury on its own premises, and it was under no duty to protect her against injury on another’s property and from another’s act. Assume, however, a breach of duty by the defendant upon its premises, and that afterwards the intestate fell from the embankment to the railroad track, and yet the defendant’s liability is not apparent. The injury suffered by the intestate was not by any act of the defendant, but of the railroad company. Nor was the catastrophe the natural or probable effect of defendant’s primary negligence, the proposition that because of the unguarded declivity the intestate might run down the lrill; and so running might slip and fall: and so. falling might be precipitated over and across the embankment, twelve feet in width, upon the railroad track below; and so lying on the track might be crushed by a train of cars casually passing at the particular moment; involves a concatenation of contingencies altogether beyond probable occurrence or reasonable apprehension. The negligence of the defendant, if any there be, was not the proximate or efficient cause of the injury. “If; after the cause in question has been in operation, some independent force come in and produces an injury not its natural or probable effect, the author of the cause is not responsible.” Bishop on Non-Contract Law, §§42, 43. “A finding that negligence is the proximate cause of an injury is not warranted, unless it appear that the injury was the natural and probable consequence of the negligence, and that it ought to have been foreseen in the light of surrounding circumstances. We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. Milwaukee etc., R. R. Co. v. Kellogg, 94 U. S. 470, 475. “ In order to make a defendant liable, his negligence must be the causa causans and not merely a causa sine cua non." H. Kelly C. B. in Lord Bailiff's v. Trinity House, 39 L. J. Exch., 163." A proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.” Shear. & Red. on Neg., § 26; Ehrgott v. Mayor, 96 N. Y. 264, 281. “Where an injury to one is caused by and is the natural and probable result of the wrongful act or the omission of an another, such other is liable therefor, although other causes, put in motion by the act or omission, and which in the absence thereof, would not have produced the result, contribute to the injury.” Lowery v. Manhattan R. R. Co., 99 N. Y. 158, 166. That the “other cause” be “put in motion ” by the defendant’s act or omission, is the essential element in the definition of liability. Here the cause of the intestate’s death, the act of the railroad company, was not “ put in motion ” by the defendant’s wrong or omission, but was an unconnected and independent agency. Hor was the act of the defendant concurrent with the act of the railroad company in causing the death of the the intestate. “ When two distinct causes are operating at the same time to produce a given result which might be produced by either, they are concurrent causes; but if two distinct causes are successive and unrelated in their operation, they cannot be concurrent. One of them must be the proximate and the other the remote cause, and the law will regard the proximate as the efficient, and responsible cause, disregarding the remote cause.” Herr v. City, 34 Am. St. Rep. 603. Here the fall of the intestate on defendant’s premises, and her injury by the railroad company on its track, were obviously successive and unrelated events. It is apparent upon the record, that the wrongful act or omission of the municipality-defendant, was not, in the legal sense, the proximate cause of the intestate’s death; and the question, therefore, was for adjudication by the court, not for determination by the jury. Scheffer v. R. R. Co., 105 U. S. 249; Kley v. Healy, 127 N Y. 555, 562; 40 St. Rep. 215.

Waiving everything hitherto urged for the respondents, and assuming actionable negligence on their part, still the complaint was rightly dismissed, for insufficient proof of the absence of contributory negligence on the part of the intestate. The intestate was a bright, intelligent girl, between nine and ten years of age, and so was sui juris ; Kubler v. The Mayor, 39 St. Rep. 520; she saw the cars coming ; the peril of a fall in running down the hill or upon the embankment was perfectly obvious to her; vet of her own volition she abandoned her secure position and challenged the danger, by which she incurred her death. Indisputably the cause of her injury was her own negligence. • A case far less clear would suffice for a dismissal of the complaint. The burden being upon the plaintiff to disprove contributory negligence, if the evidence pointed equally to the negligence and the non-negligence of the intestate, or pointed to neither, the plaintiff’s defeat was inevitable. Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330; Wiwirowski v. L. S. & M. S. R. R. Co., 124 N. Y. 420; 36 St. Rep. 405; Bond v. Smith, 113 N. Y. 378; 22 St. Rep. 666 ; Hooper v. Johnstown, etc., R. R. Co., 59 Hun, 121, 126; 35 St. Rep. 503; Kubler v. Mayor, 39 St. Rep. 520. Judgment affirmed, with costs. All concur.


text:
    Mattie L. Wood, Plaintiff, v. Raphael Wood, Defendant.

      (New York Common Pleas, Special Term,

      Filed April, 1894.)

    Divorce—Foreign judgment—Action on.
    In an action on a_ foreign judgment of divorce, awarding alimony t© plaintiff, no other relief can he had than a recovery for past due alimony. In such action equity has no jurisdiction to sequestrate defendant’s property or compel him to give security for future alimony.

      Demurrer to complaint. Action to enforce payment and security for alimony decreed to plaintiff in a judgment of divorce by a. French court. The opinion more fully states the case.

      Black & King, for pl’ff; Couderi Brothers, for def’t.
   Pryor, J.

In an action for divorce from the bonds of matrimony, with jurisdiction of the subject-matter and the parties, the-civil tribunal of the first instance of the department of the Seine, in the city of Paris, in the republic of France,- gave judgment in favor of the plaintiff, with an allowance of 800 francs a month alimony for the support of herself and children. Reciting this judgment and the further facts ; that specific installments of alimony are due and unpaid ; that the defendant has departed from Franc® and is now a resident of the State of Hew York; that he left no-property in France by which the judgment for alimony might be-satisfied; that he is the owner of property in this state to the-amount of $100,000; that he threatens and intends to dispose of this, property in fraud of the plaintiff’s rights, and to escape from the-jurisdiction of the courts of the state ; and that the plaintiff will be remediless without the relief prayed for, the complaint demands judgment : First, that the decree of the French court be made'the decree of this court with the same force , effect and validity, and be enforced against the defendant by this court in the same manner as if said decree were the final judgment of this court; secondly, that the defendant be adjudged to pay plaintiff the alimony in arrear and future alimony in the sum of $154.60 a month ; thirdly, that defendant be required to give security for said future alimony ; fourthly, for sequestration of defendant’s property in this state; fifthly for an injunction against the disposition of defendant’s said property ; and sixthly, for other and further relief. To the complaint a demurrer is interposed on the grounds that the court has no j urisdiction of the subject of the action; that two causes of action are improperly united; and that the complaint does not state facts sufficient to constitute a cause of action. Argument is unnecessary to show the first two positions are untenable. Obviously but one cause of action is exhibited, and of that the court has unquestionable jurisdiction. Roblin v. Long, 60 How. 200. Indeed, the single objection to the complaint urged in the brief of defendant’s counsel, is that it is insufficient in substance. But, if the facts stated show a right to any relief, whether legal or equitable, the complaint is invulnerable on demurrer. Johnson v. Girwood, G. T. of C. C. P. March, 1894, and- citations. And, for the unpaid instalments of alimony awarded to her by judgment in personam, of the foreign court, the plaintiff exhibits a clear and incontestable cause of action. Barber v. Barber, 21 How. U S. 582 ; Dunstan v. Higgins, 138 N. Y. 70; 51 St. Rep. 710. The objection that a judgment for money only would be more favorable to plaintiff than a judgment for money and sequestration, is palpably inadmissible. The real question in controversy between the parties is, whether the plaintiff be entitled to the specific relief prayed, namely, security and sequestration. As, in any event, the demurrer must be overruled, the point need not be considered; but, under the circumstances, counsel have a right to the opinion of the ■court upon it. The relief sought is the relief provided in § 1772 of the Code in an action for divorce ; but here is not an action of divorce ; nor a demand for a judgment of divorce. The claim is upon a foreign judgment of divorce, to enforce payment of the alimony therein decreed. Beyond doubt the Code is entitled to the remedy of the forum ; and if she were suing for divorce, the remedy she solicits might be accorded to her. But, she is not suing for divorce, and the inquiry is, what remedy is available to her by the law of New York. ? Aside from the statute, the plaintiff insists that, on principles of equity jurisprudence, she may have the relief. But what principle ? Equity has no power to decree alimony. 3 Pom. on Equ. Juris., § 1120. In this state jurisdiction to award alimony is the creature of statute; and an incident of a matrimonial suit. Burtis v. Burtis, Hopk. 557; Davis v. Davis, 75 N. Y. 221; Ramsden v. Ramsden, 91 N. Y. 281. It is answered that the action is to enforce the payment of alimony due under a judgment of divorce; but whence does equity acquire jurisdiction of the relief ? An action at law to recover instalments of alimony as they accrue, is the plain, appropriate and adequate redress. It is said the defendant may depart or make away with his property; but ■against that contingency the ancillary processes of arrest, attachment and injunction afford a sufficient safeguard. It is said again, that still the plaintiff has no security for future alimony. But the French decree does not sequestrate the defendant’s property ; and, in the absence of any lien or other specific claim on such property, he has a right to dispose of it, and plaintiff’s reliance is on his personal credit. Adler v. Fenton, 24 How. U. S. 407. In Bullock v. Bullock, 27 Atl. Rep. 435, a decree of divorce in New York, to secure alimony directed a mortgage on land in New Jersey ; and yet the vice-chancellor in New Jersey sustained a demurrer to a bill for enforcement of the New York judgment, on the ground that the remedy for the plaintiff’s wrong was only such as was provided by the law of the forum. Barber v. Barber, 21 How. U. S. 582, is cited contra ; but the decision,is by a divided court,—Taney, C. J., Daniel and Campbell, JJ., dissenting. I am clear that the weight of ability and of argument is with the minority of the court, and that the principles of the prevailing opinion are without support in the jurisprudence of New York. By the comity of nations this court will give effect to rights acquired under a foreign law ; but such effect is only that which its own soverign prescribes,—the lex fori. Gutta Percha Co. v. Mayor, 108 N. Y. 276 ; 13 St. Rep. 607 ; Rice v. Harbeson, 63 N, Y. 493, 502. The lex fori—the law of this state—gives effect to a right of alimony acquired abroad, -only by an action for its recovery. 108 N. Y. 276, 279 ; 13 St. Rep. 607. If the right were qualified by any element of chancery j urisdiction, equity might aid its enforcement by its peculiar pro■cedure; but such is not the case. The French judgment of divorce is not and cannot be made, a New York judgment of ■divorce; but only to execute its own judgment of divorce does the state provide for sequestration and security. Code, § 1772. The French judgment is no more enforceable here by this process, than any foreign judgment is enforceable by our domestic writ of execution. My conclusion is, that the plaintiff is entitled to no-other relief than the recovery of past alimony ; but, as her right to that is incontestable on the pleadings, the demurrer must be overruled. Demurrer overruled, with leave to answer on payment of costs.


author: McCabthy, J.

text:
    George H. Meyers et al., App’lts, v. Lena Stix et al., Impl’d, etc., Resp’ts.

      (New York City Court, General Term,

      Filed March 31, 1894.)
    1. Appeal—Objection.
    Where a question is submitted without objection, and the jury has found against plaintiff, that question is settled and disposed of, so far as the general term is concerned, unless the verdict is against evidence or weight of evidence.
    2. Same—Verdict.
    Though the evidence is conflicting but is sufficient to sustain the finding,, it will not be disturbed.

      Charles Meyers, for appl’ts; Samuel W. Weiss for resp’ts.
   McCabthy, J.

The statement of facts as presented by respondent in his brief is a fair , full and concise one. It is as follows : “ This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes. The action is brought to recover for goods sold and delivered by the plaintiffs to defendants. The answer admits, by non-denial, the allegation of the complaint and sets up a release and extinguishment of the demand. The defendants composed the firm of Meyers, Stix & Go., the defendant Elias Meyer being the brother of plaintiffs and of plaintiff’s attorney, the defendant Lena. Stix being the sister of Joseph F. Cullman and Jacob F. Cullman, and the defendant Jacob W. Mayer being the foster brother of said Cullman. ,In the latter part of Í886 defendant’s firm was insolvent. Besides being indebted to the plaintiffs on the demand in suit, they were indebted on two notes respectively for $5,000 and $2,500 made by one Lippman to their order, endorsed by them and held by the Seventh National Bank, on a similar note for $4,000 dollars held by the Mechanics & Traders Bank, and were-further indebted to merchandise creditors. Said Cullman discovered the insolvency of defendants’ firm and intervened to prevent a failure in the family. They caused defendants to return merchandise to such creditors as would accept thereof and to pay balances to such creditors in cash,and this method of liquidation went on until January 22, 1887, when no other creditors would accept merchandise and defendants’ firm had scarcely any assets remaining. On January 22, 1887, the above mentioned indebtedness to plaintiffs and to the banks still existed while the merchandise indebtedness was reduced to about $3,133 making a total of indebtedness of about $15,000. Their assets were then nominally about $6,000. The Cull mans had no pecuniary interest in defendants’ firm, and neither they nor their firm of Cullman & Eosenboom were creditors. They had introduced Meyers, Stix & Co. to the Seventh National Bank, and, on the strengtli of their recommendation, had a credit established for them and felt morally bound to protect the two notes above mentioned, held by that bank. They had not guaranteed these notes. Their relation to these note was duly explained to the attorney for plaintiffs who drew the bill of sale below mentioned. On January 22 or 23, 1887, at the place of business of defendants’ firm, Joseph Cullman met a representative of plaintiff’s who gave the information that plaintiffs were creditors. This representative was offered merchandise in settlement of their claim but insisted on getting the merchandise on a basis of twenty per cent, below cost, and this was refused. Pursuant to an arrangement made with this representative a meeting was held at defendants’ place of business on January 24,1887. There were present at this meeting, the two Cullmans, Abe Meyers (said representative), Geo. H. Meyers, one of the plaintiffs, Charles Meyers, the brother and attorney of plaintiffs, Robert Stix, the husband and representative of the defendant Lena Stix, Jacob W. Mayer, one of the defendants, Elias Meyers, the remaining member of the firm of Meyers, Stix & Co, and Jacob 'Lippman, the bookkeeper of such firm. What occurred at this meeting, is testified to by Joseph F. Cullman, as follows : 111 was asked by Mr. Abe Meyers, ‘ Have you thought of the matter; how can we arrange this.thing; how can they be pulled through? ’ I said, 1 Yes.’ 1 Well,’ says he, 1 How can it be done ? ’ Mr. Abe Myers said that in the presence of George Meyers, Charles Meyers and all the members of the firm; he said ‘ How can it be done?’ I conferred with my brother and turned around to them, all of them, and said, 1 See here, your assets show about $6,000, nominally, we, as you know, are morally responsible for the notes that have been discounted at the Seventh National Bank, if you will transfer to us your assets, we will lift these notes, and release you from all responsibility thereon.’ And then I turned to Meyers brothers and said, ‘ Further than that, if you will relinquish your claim, which is a mere bagatelle, just a trifle, we will pay the balance of their merchandise indebtedness, as it becomes due, and the note of the Mechanics & Traders’ Bank or the accounts, indebtedness, as they will appear on the books.’ Mr. Meyers said, 1 Will you do that ?’ I said, ‘ We will. He said, ‘ If you will do that, we (Meyers Brothers) waive our claim against Meyers, Stix & Co.” This evidence was corroborated by Jacob Cullman, by Robert Stix and by Jacob Lippman. In making this arrangement Abe Meyers acted as spokesman for plaintiffs, and when in consideration of Cullman’s paying the balance of the merchandise indebtedness, he agreed to the release of the plaintiffs’ demand in suit, the plaintiff, George Meyers was present and did not dissent from the arrangement but assented thereto. Abe Meyers reprimanded the members of the firm of Meyers, Stix & Co. for having returned so much merchandise and for having nearly no merchandise indebtedness, and so great an indebtedness to the banks. The drawing of the bill of sale, to effectuate the transfer of assets to the Cullmans, was left to plaintiffs’ attorney. He prepared Exhibit A. It was executed and delivered by defendants on January 25, 1887. Under it, the Gul-Imans took possession of the assets of Meyers, Stix Co, under agreement reached on January 24. The Cullmans paid the two notes held by the Seventh National Bank, the note held by the Mechanics & Traders’ Bank and paid every dollar of merchandise indebtedness (except the plaintiffs’) of Meyers, Stix & Co., as they respectively matured. The Cullmans received from the assets •transferred to them $8,346.64. The branch of the arrangements to take up the notes ($7,500) held by the Seventh National Bank costs them about $4,150. The other branch of the arrangement, for which plaintiffs gave up their claim of about $300, cost them $4,500 for the note held by the Mechanics & Traders’ Bank and $3,133.06 paid merchandise creditors or a total of about $7,600. The total expense they were put to in carrying out the' arrangement was nearly $12,000. They have not had any part of this returned. The plaintiff denied the making of any such agreement and claimed that the defendants were indebted to them. But the learned chief justice submitted the questions of fact to the jury and they rendered a verdict in favor of defendants. The trial justice, having submitted the question of the agreement in his charge without objection, and, again, on request of plaintiffs’ counsel, and the jury having found against the plaintiff, that question is ■settled and disposed of, so far as we are concerned, unless the verdict was against the evidence or weight of evidence. It is clear, from an examination of this appeal, that, although the evidence was conflicting, yet there was sufficient to sustain such finding by the jury. This also applies to the question of performance. As to the questions of law, which means the effect and result of this agreement, we can do no better than to reassert and reaffirm the law as laid down in the able opinion of Bischoff, J., in Meyers v. Stix, 13 N. Y. Supp. 301; 36 St. Rep. 848, which clearly and unmistakably covers this case in every particular. This case needs no better support.

Judgment is, therefore, affirmed, with costs.

YanWyck and Newburger, JJ., concur.


author: Gray, J.

text:
    The China Mutual Insurance Company et al., Resp’ts, v. William M. Force et al., App’lts.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Judgment—In rem—Effect of.
    The judgment of a court, acting in rem, extinguishes the title of the owner, is conclusive upon the title, transfer and disposition of the property itself, discharges all liens and transfers them to the proceeds.
    3. Same—Surplus money.
    But the effect of such judgment is not so extended as to permit a disposition of the surplus money, upon a mere petition of a claimant without notice of any description.
    .8. Charter Party—Payment of Freight.
    Unless the contract of the parties provides for the payment of freight pro rala, itineris, it is not earned hy a performance of the voyage and delivery of the cargo at the place of destination.

      4. Same—Obligation of Shippers.
    The obligation of the shipper of the cargo is to be determined by the law of the place, where the contract of affreightment was made.
    Appeal from the judgment of the general term of the supreme court in the first judicial department, entered upon an order made November 28, 1892, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.
    This action was brought by plaintiffs, insurers of the cargo of the bark Guiseppe Anna, to recover of defendants a portion of the proceeds of the sale of said cargo, which had been collected by their agent and paid to them.
    The Italian bark “Guiseppe Anna” was chartered at the city of New York, in April 1889, through a charter party made between Daniel Bacon, a freight broker of that city, and John C. Seagor, agent of the bark, of the same place, to carry a quantity of cases of oil from New York to Rangoon, Burmah, and. a bill of lading was issued therefore. The plaintiffs insured the cargo. The defendants advanced moneys to the master for necessary disbursements about the vessel; who gave to them his draft for the amount advanced, and, for its payment, pledged the vessel and freight. This draft was forwarded to the Chartered Bank of India, Australia and China for collection and, by that bank, was sent to its agent at Rangoon.' The vessel was wrecked in October, while upon its voyage, by perils of the sea, on the coast of Burmah, near Bassein. There was an abandonment and a payment, as for a total loss, and the plaintiffs, as insurers, succeeded to all the rights of the insured in respect of the cargo and its proceeds. One Anthony Murphy, the master of a steam vessel, had proceeded to the scene of the wreck and had been engaged for several weeks in salvage operations; but had succeeded in only saving a part of the cargo and some of the ship’s stores and furniture. On December 16, 1889 he filed a petition for salvage in the Recorder’s Court of Rangoon; of vice admirality jurisdiction. On November 80th, 1889, the Chartered Bank of India etc. had filed its petition in the same court, alleging that it held the draft for the advances to the master and setting forth the wrecking of the vessel, the salvage effected by Murphy and the possession of the receiver of wrecks for the district and praying for an order of arrest and of sale of the ship, cargo etc., and the condemnation of the ship in the amount due the petitioner, subject to the claims of the salvor. Upon that petition the recorder immediately ordered the arrest of the vessel, cargo, furniture, etc. On December 10th, 1889, he ordered a sale at public auction of the property salved and that the proceeds be brought into court; “ reserving all questions as to the rights of the government to be paid salvage and of the rights of the parties to the suit.” On December 18th, 1889, the recorder ordered the vessel. to be sold by the court’s bailiff in January, and the sale to be advertised in certain papers. The advertisement is not shown in the record. Sale was made and the proceeds deposited as a common fund, in the registry of court. On April 29th, 1889, the recorder made two orders or decrees; one in the proceedings instituted by the salvor, Murphy, against the vessel, by which he decreed him- to be entitled to a certain sum by way of salvage; the other in the proceeding of the Chartered Bank of India etc. against the vessel, by which he decreed the payment upon the plaintiffs’ claim of the surplus proceeds in the registry of the court, after satisfying the claim of the salvor. This action was brought by the insurers of the cargo to recover of the defendants the portion of the proceeds of the sale of the cargo, etc., which had been collected by their agent and paid to them. The theory of the action is that, as no freight had been earned, no lien attached in favor of the defendants through the master’s draft, which was enforcible against the proceeds of the admiralty sale, and, hence, they were not entitled to retain the moneys paid to their collecting agent, under the decree of the recorder of Eangoon. The defendants defended the action, upon the ground that the decree of the recorder is conclusive -and could not be reviewed here; and they also say that the vessel sailed under the flag of Italy and was owned by a subject of the Italian government, and that, therefore, questions relating to reciprocal rights of vessels and cargo, in the absence of some express agreement otherwise, were governed by Italian law; which allows of a lien upon cargo pro rata iiineris. The evidence upon the trial was wholly documentary; introducing the record of the proceedings had in the Becorder’s court of Eangoon.
    The plaintiffs had judgment below in the trial court, which was affirmed by the general term, and the defendants now appeal to this court.

      Harrington Putnam, for app’lts; William W McFarlandr for resp’ts.

       Affirming 49 St. Rep. 730.

   Gray, J.

The principal question, which is presented for our consideration, relates to the effect which should be allowed to the decrees of the Yice Admiralty Court in Eangoon. Mo question is made about its-exercise of jurisdiction in seizing and ordering the sale of the vessel, cargo, etc.; neither is any question made as to the rights of the salvor to receive salvage moneys out of the fund in the registry of the court. The question is whether, after seizure and sale of the property and the award of salvage moneys, the admiralty court could summarily proceed upon the application of the Chartered Bank of India etc., as it did, with respect to the surplus moneys in its registry. Was its decree as to that matter conclusive upon these plaintiffs and are they debarred from setting up that, however conclusive may have been its decree with respect to the sale of the property, or the award of salvage moneys, they are not concluded from inquiring into the sufficiency of "the proceedings to divest them of their proprietary interest in the remainder of the proceeds. After the best consideration I have been able to give to the subject, I think these questions are to be answered in the negative. I am not aware that any rule of the Admiralty Law requires us to answer them otherwise, and although the proceedings was in rem, nevertheless, the court was bound to proceed, in the determination of rights to the proceeds, by proper judicial proceedings; without which its decree could not, and ought not to be conclusive. Mr. Justice Story observed in Bradstreet v. Neptune Ins. Co., 3 Sumn. 600, with respect to an essential element for the conclusiveness of a foreign judgment: That element is that there have been proper judicial proceedings upon which to found the decreeand he proceeds to describe them, mentioning the necessity of personal or public notice of the proceedings so that the parties in interest may have an opportunity to be heard. Other than what the seizure of the vessel, cargo, etc. is deemed to import to the world, there was no notice of any kind to the owner of either and if any publication was made in the whole proceeding, it was under an order directing the bailiff to advertise his sale in certain newspapers. Beyond the petition of the Chartered Bank for the condemnation of the vessel and the order for the payment' of the petitioner from the proceeds, subject to the salvor’s claim, the foreign record does not disclose any process or proceeding for the determination of the question of its right. Was this record sufficient to show that the court completely exercised its jurisdictional powers, so as to bind parties with adverse interests by its decree ? I think not. The proceeding before the admiralty court was against the vessel, cargo, etc., and jurisdiction was acquired by their seizure; which is supposed to constitute due notice to all parties interested and to empower the court to order the disposition of the property seized. It proceeded to order a sale of the vessel, cargo, etc., to protect all interests therein, and the effect of the sale was to discharge all liens and to transfer them to the proceeds. The sale passed the title to the property sold as to all the world; although the owners did not appear, and were not heard. The judgment of the court acting in rem, by general maritime law, extinguished the title of the owner and is conclusive upon the title, transfer and disposition of the property itself, in whatever place it may be found, and by whomsoever it may be questioned. These principles of admiralty law have been long settled and are too familiar to need the citation of authorities.

There is no dispute here about the competency of the court in Rangoon to act upon the property and to sell it; nor, when the proceeds came into its registry, to direct the payment thereout of the salvor’s a claim. The difficulty is to see upon what legal principle the court could dispose of the surplus proceeds remaining in the registry, without adjudging as to the title to them, in some manner which would exhibit an observance of essential legal processes. I think that the power of the court to act competently in a summary manner, as against adverse parties without notice, was limited to the seizure and sale of the property and the award of salvage moneys to the salvors. Thereafter, the court, though in possession of and with jurisdiction over the fund, was. bound to proceed in some regular way and upon some notice, in order to determine the relative claims of owners and claimants. I am quite unable to see how the mere order to pay the claim out of the surplus moneys is equivalent to an adjudication, which we must regard as conclusive in its nature. After ordering the sale of the property and adjudging upon the salvor’s claim, the question of the right of the Chartered Bank to be paid from a fund, which belonging to others, was one inter alios and in justice and in reason, as it seems to me, those other parties should have had their day in court. Subject to the claim for salvage, the proceeds of the sale of the condemned property belonged to' the owners of the vessel and cargo; whatever the liens against them. The principle of a jurisdiction in a court of admiralty power to act summarily and conclusively, without actual notice to parties interested in the property, would seem to have been sufficiently satisfied in the proceedings in question, without extending it so as to permit a disposition of these surplus moneys, upon the mere petition of a claimant and without notice of any description. The 43d rule, of the admiralty rules adopted by the United States supreme court in 1844, reads that “any person having an interest in any proceeds in the registry of the court shall have a right by petition, or otherwise, to intervepe pro interesse suo for a delivery thereof to him; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon and to decree therein according to law and justice.” These rules represent the general course of admiralty practice, as it came to us from the civil law courts, as modified in English courts, and were intended to be in general harmony with the practice in the maritime courts of other nations. See Benedict’s Adm. §§ 11, 356; Henrv’s Adm. Pr. §H4.

The spirit of the rule referred to makes notice necessary to a valid decree, disposing of proceeds remaining in the registry of the court, and the appropriateness of its application is not affected by the fact that the claimnant here was already in court by its proceeding against the vessel. This surplus of proceeds, in the registry of the court, belonged, in legal contemplation, to the original owners of the vessel and cargo, and were there for distribution only. It was the duty of the court to preserve them for all who had claims on them ; and if it allowed claims to be paid, before the legal right of a claimant was established by due process of law, “it would be nothing else than allowing a man’s property to be taken from him without his consent and without judgment of law.” The Phebe, 1 Ware’s Rep. 360, 365. It was remarked in Harper v. The New Brig, Gilpin’s Rep. at p. 546, that “the power of a court or admiralty over these remnants, or surpluses, is not an arbitrary power, but is governed by principles, which the court is bound to observe before it acts, whether there be or be not a party in court, having an interest or disposition to obtain a proper distribution of them." So far as this foreign record shows, the decree was ex parte, upon the petitioner’s statement, and seems as little entitled to be regarded as conclusive, as the sentence, commented upon by Mr. Justice Story, in Bradstreet v. Neptune Ins. Co., supra Upon authority, as well as upon principle, I think, while the admiralty court retains jurisdiction over the disposition of the proceeds remaining in its registry, after satisfying the purpose for which its jurisdiction was originally called into exercise, which was, I consider, here the sale of the vessel and the property saved and payment of the salvers, that jurisdiction is competently exercised only upon due process of law, by which parties having adverse interests are given an opportunity to be heard. In The Sybil, 4 Wheat. 98, after salvage had been decreed out of proceeds, a claim was interposed by the ship owners for freight and average. Mr. Justice Johnson, observing that the court was pretty well satisfied that no freight was earned and that average might have been claimed, said, “in the case then depending, the circuit court could not have awarded either of those demands. The question is inter alios. There was no pretext for claiming either as against the salvors and the ship owners ought to have pursued their rights by libel, or petition by way of libel, against the portion of the proceeds of the cargo which was adjudged to the shippers. These parties were entitled to be heard upon such a claim and could only be called upon to answer in that mode.” In Andrews v. Wall, 3 How. U. S. at p. 573, Mr. Justice Story said: “This is a case of proceeds rightfully in the possession and custody of the admiralty;. and it would seem to be, and we are of opinion that it is, an inherent incident to the jurisdiction of that court, to entertain supplemental suits by the parties in interest, to ascertain to whom those proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof. This is familiarly known and exercised in cases of the sales of ships to satisfy claims for seamen’s wages, for bottomry bonds, for salvage services, and for supplies of materialmen, where, after satisfaction thereof, there remain what is technically called ‘ remnants and surplusses,’ in the registry of the admiralty.” If these defendants had a maritime lien, which survived the destruction of the vessel, and they had some proprietary interest in the proceeds in the registry of the court, the general rule, as stated by Mr. Benedict, in his work on admiralty, (§ 805) required that “ before the proceeds are distributed, the court on proper proceedings for such purpose, should adjudicate upon the claims to such proceeds arising from liens upon them.”

In Sheppard v.Taylor, 5 Peters, 675, 711, it was remarked, with respect to the lien for the wages of seamen upon proceeds, that “ it is the familiar practice of the court to exert its jurisdiction over them, by way of monition to the parties holding the proceeds ; ” who, in that case, were the assignees of the owners.

I think our conclusion must be that the order or decree of the Vice Admiralty Court in Bangoon, directing the payment from the proceeds in its registry of the demand of the Chartered Bank, was not conclusive upon these plaintiffs. There was no actual adjudication upon the title, through those proceedings which are recognized to be proper, whether in admiralty, at common law, or in equity. That the decree of a foreign court of admiralty is conclusive, upon the point which the condemnation of the property rested, is not to be disputed; but that it may decree concluively upon other points incidental to the distribution of the proceeds, without some proper proceedings giving support to the decree, I am not prepared to admit.

Having reached that conclusion, there remains the question whether the defendants are not, nevertheless, entitled to retain the moneys so awarded to them. They say that they had a legal lien upon the cargo for proportional freight. The charter party provided for the payment of freight upon delivery of cargo at jiort of discharge. It is well settled that, unless the contract of parties provides for the payment of freight pro rata itineris, it is not earned except by a performance of the voyage and the delivery of the cargo at the place of destination. The Tornado, 108 U. S. 342 N. Y. C. & H. R. R. R. Co. v. Standard Oil Co., 87 N. Y. 486. I see nothing in this case to warrant us in saying .that the facts constituted any exception to that rule. Nor is the question affected by the “ law of the flag,” as the defendants have argued. The fact that the vessel was Italian does not subject the contract of shipment to the operation of the Italian Commercial Code. The obligation of the shippers of the cargo is to be determined by the law of the place, where the contract of affreightment was made. In the case of the Liverpool Steam Co. v. Phœnix Ins. Co., 129 U. S. 397, an action brought by an insurance company claiming to be subrogated to the rights or owners of, goods on board the " Montana,” a British vessel, the question was elaborately discussed, in an opinion by Mr. Justice Gray, whether a contract was made in New York for the shipment upon a British vessel of goods to Great Britain, where the damage itself occurred, questions arising upon the contract should be determined by British law. Many cases in English and American courts were reviewed, including that in this court of Dyke v. Erie R. R. Co., 45 N. Y. 113, and, upon the great preponderance, if not the uniform concurrence of authority, it was held that the nature, obligation and interpretation of the contract are to be governed by the law of the place where it is made. “ A contract of affreightment,” it was said, “ made in a country between citizens, or residents'-thereof, and the performance of which begins there, is to be governed by the law of that country, unless the parties * * * clearly manifest a mutual intention that it shall be governed by the law of some other country.” And see Faulkner v. Hart, 82 N. Y. 413.

For the reasons expressed, I think the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Van Wyck, P. J.

text:
    Thomas Kirkpatrick, App’lt, v. William Livingston, Resp’t.

      (New York City Court, General Term,

      Filed March 31,1894.)

    Trial—Nonsuit.
    Upon the facts proved in the case, it was held that a nonsuit was improperly granted.
    Appeal by plaintiff from judgment of nonsuit

      James Flynn, for app’lt; Chas. H. Qriffen, for resp’t
   Van Wyck, P. J.

The plaintiff, who is in the retail jewelry business on Broadway, sues the defendant, a resident of this city, to recover the unpaid balance of the value of certain jewelry that William Livingston, Jr., a son of the defendant, being duly authorized by and acting under the instructions of the defendant, purchased of him during the year 1891. And to maintain his cause plaintiff made proof that the defendant has had for fourteen years a running account with plaintiff at his jewelry store; that such running account of defendant was for his family matters, purchases made by any one of his family; that his family consisted of his wife, a daughter and this son William, Jr., and the account referred to, was for the purchases made by these different members of his family from time to time; that this son had been in the habit of coming to plaintiff’s store and buying goods for years, and that such goods so purchased were charged to defendant and the bills therefor rendered to him, and these bills were paid by him from time to time, and that the goods sued for were purchased by this son, charged as usual to the defendant to whom a bill for these goods was sent, and that he paid $165 on account of this bill. The plaintiff made proper effort but was not allowed to prove that defendant’s wife, daughter and son had from time to time during these years purchased goods, from defendant, at his jewelry store, which were always charged to the defendant, and bills for the same rendered to and paid by him; and that the goods so purchased, billed and paid for were similar to those purchased by the son and herein sued for. The plaintiff was non-suited on the ground “ that nothing has been proven either agency or promise.” However, defendant contends that the complaint does not state a cause of action against defendant, and hence the nonsuit was proper. Ho attack was made, before or at trial, against the complaint upon any ground whatever, and moreover, the complaint, although somewhat carelessly drawn, sets forth the cause of action against defendant. The plaintiff was improperly nonsuited and the judgment is reversed with costs to appellant to abide the event.

McCarthy, J., concurs.


author: McCarthy, J.

text:
    James L. Clark, App’lt, v. Andrew J. Smith, Resp’t.

      (New York City Court, General Term,

      Filed March 31, 1894.)

    I. Appeal—Finding.
    The verdict will be sustained, if there is any evidence to support the finding of the jury.
    S. Principal and agent—Latter’s personal debt.
    Where an agent pays his own personal debts with the money of his principal without his authority, the creditor cannot retain such money but must return it or credit the principal with the same on the general account.

      J. George Flammer, for app’lt; Charles F. Holm, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered on the verdict of a jury, and the action is for the sale and delivery of goods. The defendant claims that certain payments were made, which i£ applied to the plaintiff’s indebtedness would leave a, balance of §186.87, which balance the defendant admitted he owed. The defendant proved by the plaintiff’s own witness,. Peterson, who had kept the books, that the aggregate purchase of merchandise by the defendant from the plantiff was $770.79. The defendant claims, that the payments made to the plaintiff aggregated $583.42. These payments if made were all made subsequent to the purchase of the store by the defendant and were-paid out of the proceeds of the defendant’s business. Plaintiff's-witness testified to various payments, aggregating $396.20, having been made on Smith’s account, and covering a period of time, the-same as that of the plaintiff’s statement of merchandise sold and no credit or mention whatever is made of these payments. If there ever was a case, where there was a positive and continued conflict of evidence on the material issues, this was" one. It was purely a question of fact and certainly required the jury to settle and determine the many contradictions in the testimony. They have found for the plaintiff, but in a smaller sum than claimed by him. Where such appears and there is any evidence to-support the findings of the jury, their verdict will be sustained. The trial justice in his charge, fairly submitted the questions of fact to the jury, arid excepting one request, no other was asked-by plaintiff nor was any exception taken to this charge. It is too late now for plaintiff’s counsel to complain to use his language, as per his brief, that the court did not seem to be able to grasp the situation, and charge the jury, since had counsel grasped the situation, he could have requested the court to charge any other proposition of law, which might have occurred to him and if proper, I have no doubt the trial justice would have so charged. We must dispose of this appeal on the case as presented and not on what ought to have been or what might have been. The defendants would be bound by the acts of Peterson only so far as. authorized or in the line of his authority and where Peterson paid his own personal debts with the money belonging to his principal without his authority, the third person the plaintiff here; could not retain such moneys but must return them or credit the defendant with the same on the general account. The jury have believed this to be the state of facts and have therefore credited these amounts and found a balance due the plaintiff. While the evidence is very conflicting, we find no error on the part of the trial justice, and judgment should be affirmed with costs,.

Newburger, J., concurs.