text:
    John McQueen, as Receiver, etc., Pl’ff, v. Tobias New, Def't.

      {Supreme Court, New Torh Special Term,

      Kled November, 1894.)

    1. Pleadings—Demubbeb.
    The words “ fraudulent and void,” when stated, not as facts, but as inferences, are not admitted by demurrer..
    2. COBPOBATIONS—POWEBS—PREFERENTE.
    A preference by a foreign corporation will not be declared void in this-state, unless a statute of its domicile, forbidding preferences, is pleaded and proved.
    Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      Ewing, Whitman & Ewing, for pl’fiE; E. J. Mather, for def’t
   O’Brien, J.

The defendant demurs to the complaint upon the ground, among others, that it does not state facts sufficient to constitute a cause of action. It is sought in this action to recover money in the hands of the defendant, which it is claimed he received as the result of the proceeds of a sale under an execution issued upon a foreign judgment, which latter was fraudulent, and under which the property of the corporation of which the plaintiff is the receiver was taken and sold, and the proceeds paid to. defendant. The relief asked is that the judgment and subsequent proceedings thereunder, including an agreement pursuant to which the judgment was assigned to defendant, be set aside, and that the plaintiff recover the' money so received by defendant. The complaint alleges that on Hovember 25, 1892, the company of which the plaintiff is receiver “ was in the possession of personal property in the city of Chicago, * * * and that on that day said company was insolvent, and had refused the payment of promissory notes given by it; * * * that the treasurer and secretary of the company, well knowing that it was insolvent, and because of such insolvency, collusively, and with intent to defraud the creditors of said company and to defeat their just claims,. made, executed, and delivered in the name and under the seal of the said company,” to the president thereof and his brother, “a certain paper writing purporting to be a confession of judgment,” upon which a j udgment was “ entered in the circuit court of the said state of Illinois, and execution issued to the sheriff, who thereupon and thereunder seized and took into his possession all of said personal property, in the city of Chicago." Then follow allegations that the said confession of judgment and all proceedings thereunder were fraudulent as against the receiver, and that the defendant, with knowledge thereof, and with intent to defeat the just claims, of creditors and to obtain an unlawful preference over them, entered into an agreement with the judgment creditors by which he obtained an assignment of the judgment and the execution, together with the lien upon the assets of the company, and out of the money realized was to pay expenses and moneys due him, and distribute the balance among creditors of the company holding paper with the president, and his brother’s liability thereon, either1 as makers or indorsers, and with direction to pay over the surplus to the said brothers; that it was as the result of such bill of sale or agreement that he received the money out of the sale of the personal property belonging to the company levied upon by the sheriff, which the plaintiff demands shall be accounted for and paid over to the plaintiff in this action.

It has been many times held “ that facts, and not conclusions of law, are admitted by demurrer ” (Bonnell v. Griswold, 68 N. Y. 298), and that the words “ fraudulent and void," when stated, not as facts, but as inferences, are not admitted by demurrer, but that what is admitted is the truth of such facts as are properly stated, and not the correctness of inferences drawn from such facts. Applying such rules of construction to this pleading, and keeping in mind that the judgment obtained in the state of Illinois, pursuant to which the property was sold, and the proceeds reached the hands of the defendant, is a bar to any right of plaintiff to recover unless successfully assailed, the question is whether, upon the facts pleaded, the necessary averments to this end are present. This view is recognized by plaintiff, who alleges that the judgment was fraudulent; but why it was fraudulent in his view is apparent from a reading of the complaint. It is averred that in contemplation of insolvency, and with a view to give an unlawful preference, the corporation confessed a judgment in favor of one of its officers and his brother, and that such judgment was entered in a court of the state of Illinois, where the property levied upon thereunder was situated. It will thus be seen that the fraud complained of is fraud in law, and not fraud in fact, because no fraud in fact is alleged either on the part of the Eberts Brothers in obtaining the judgment, or of the defendant in receiving a transfer of the judgment; and, unless some allegations showing such fraud in law are pleaded, the complaint is demurrable. It is true there is a statement that the defendant was guilty of fraud in making and entering into the agreement, which, however, is fully set forth, and which on its face negatives the charge of fraud, showing, as it does, that it is one of trust to pay the creditors of the company, among whom was the defendant. Under such agreement, the defendant could only pay the company’s debts, and would receive for himself nothing but the payment of his own debt. Analyzed, therefore, the complaint charges fraud in that the judgment creditors obtained, on the eve of insolvency of the company, an illegal preference, and that the defendant, with knowledge thereof, took, by a bill of sale or under the agreement, an assignment of such judgment, and thereunder obtained the moneys that are here sought to be recovered. If such allegations had relation to a judgment obtained in our own state, then, by force of a statute which' prohibits such preferences, a good cause of action would have been stated. Our statutes, however, have no extra territorial force or effect, and the Illinois judgment here sought to be set aside could not be successfully assailed unless it could be shown that, pursuant to some statute of that state, it was equally illegal. The transfer to the defendant was of a judgment in Illinois by a citizen of Michigan; and it is upon plaintiff as part of his cause' of action, and therefore as a proper allegation in his complaint to aver that the acts complained of were wrongful under the laws of the state of Illinois, unless, as contended by plaintiff, such a preference is void at common law. In other words, if the fraud or illegality is pursuant to a statute of another state, then such statute must be pleaded, because the presumption as to the laws being similar applies only to common law, and not to statutes. This being an Illinois judgment, then, it was incumbent upon the plaintiff, relying, as he did, upon such preference being illegal, to show by pleading the statute that the Illinois laws so provided. It may well be that the judgment obtained was perfectly valid under the Illinois law, and it would only be invalid as the result of some statute forbidding preferences, which, if it exists, should have been pleaded as a fact, and upon the trial presented in evidence. In the plaintiff’s view that such a preference is unlawful at common law, I do not, under the authorities, assent. The very ones to which he has reference seem to me to, hold just the contrary. And apart from the cases in this state, many of which could be cited, the text books to which he refers clearly state the law. Thus, in Morawetz on Private Corporations (volume 2, § 805) it is said : “ In the absence of a statutory prohibition, a corporation has the same power of making preferences among its creditors in the distribution of its assets as an individual.”

And in Wait on Insolvent Corporations (§ 161) it is said, in speaking of preferences in anticipation of insolvency : The prohibition of the statute only applies to domestic corporations. Foreign corporations are not affected by it, and preferences made by them will not be disturbed in New York, provided the charters of the companies and the statutes in the foreign state or country do not forbid such transactions.”

By these authors, as well as in some of the cases, considerable discussion is indulged in as to the correctness of this view ; but notwithstanding the amount of criticism that this conclusion has evoked, it must be regarded as too well settled to be now disturbed.

There are other serious questions presented by the objections to the complaint, but, as I regard the one pointed out as fatal, the demurrer must be sustained, with costs, but with leave to plaintiff to plead over upon payment of costs.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    James M. Welch, as Temporary Administrator, etc., App’lt, v. St. Patrick’s Church Society of Rochester, N. Y., Resp’t. James M. Earley, App’lt, v. Same, Resp’t.

      {Supreme Court, General Term, Mftk Department,

      Filed November 13, 1894.)

      1. Judgment—Satisfaction.
    A person, in whose presence a satisfaction piece is signed, but who is not asked to be a subscribing witness, is not qualified to prove its execution.

      2. Same—Delivery.
    A satisfaction piece is not effectual, unless delivered to the judgment debtor or to some one for him.
    Appeal from an order, denying a motion for an order cancelling the record of satisfaction of the judgment.

      John Griffin, for app’lt; George F. Danforth, for resp’t.
   Lewis, J.

James M. Earley recovered a judgment in the supreme court on the 24th day of August, 1876, against the defendant, for the sum of $15,068.49. On the 16th day of February, 1890,o the said James M. Earley died, leaving a last will and testament, which was executed on the 7th day of December, 1889. Executors were appointed by the will, proceedings for the probate of which were pending at the time of the making of the motion. During the pendency of said proceeding, and on or about the 29th day of May, 1891, the appellant was appointed temporary administrator of said estate. During his last sickness, in anticipation of death, said James M. Earley, in the presence of Sister Catharine Monaghan, wrote and signed a paper of which the following is a copy:

“J. M. Earley, Eector. Hornellsville, R Y. February 10, 1890. I, the undersigned, do hereby discharge the judgment I hold against' St. Patrick’s Church Society of Eochester, R. Y., and leave it entirely to the will and honesty of the officials of said church society to pay, to the institutions named in my will and testament, the sums named.
‘‘[Signed] James M. Earley.”

The deceased, after signing said instrument, placed it in a sealed envelope, and wrote thereon: “ To Sister Catharine; to be opened after my death. J. M. Earley,”—and placed the instrument in a drawer in his secretary. Two days before his death he pointed to the secretary, and stated to Sister Catharine Monaghan: “ There is a letter in that drawer addressed to you. After my death, see to it, or attend to it.” After his death, and before the funeral, Sister Catharine informed the Eev. M. J. Keene, one of the persons named as executors, that there was a letter in the drawer for her, and she wished it. He thereupon deliver'd the envelope, unopened, to her, and thereafter, and on the day of the funeral of said Earley, she delivered the same to the Rev. M. Y. Gleason. She did not see the envelope or paper again until the 31st day of January, 1891, on which day she signed her name to the instrument as a subscribing witness, and on the same day appeared before a notary public, and, after being duly sworn, deposed that she was present, and saw the said James M. Earley sign and deliver the instrument for his act and deed, and acknowledge the execution thereof, and that thereupon she became a subscribing witness thereto. By the will the judgment in question was bequeathed to James Mooney, of Buffalo, as trustee, with directions to him to pay out of the proceeds thereof, to the defendant in said judgment, $5,000, and the balance to other religious institutions. It appears from the affidavits of Sister Catharine Monaghan that she was present, and saw the deceased sign the discharge, but that he never requested her to become a subscribing witness to it, and that he never acknowledged it, and that she did not sign it as a witness until some eleven months after his death; that the envelope containing the discharge was placed by the deceased in his private drawer, and remained there unopened until after his decease. Sister Catharine Monaghan was not, therefore, according to her own testimony, a subscribing witness, within the meaning of the statute. Both of her affidavits used upon the motion negative any such claim. While she testifies that she was present, and saw the deceased sign his name to the instrument, he never requested her to become a subscribing witness to it. Such being the undisputed facts, she was not qualified to prove its execution as a subscribing witness. Subdivision 3 of § 1260 of the Code of Civil Procedure provides that “ the execution of each satisfaction piece or power of attorney must be acknowledged before the clerk, or his deputy, and certified by him thereupon; or it must be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where it is filed.” To entitle a deed to be recorded, it must be either acknowledged by the person executing it or proved bv a subscribing witness thereto. It was held in Hollenbeck v. Fleming, 6 Hill, 305, that a person who was present at the execution of an instrument, but who did not subscribe it at that time, but did so afterwards, without the request of the person executing the instrument, was not an attesting witness. Had the satisfaction piece been formally acknowledged or proven, it was still ineffectual for the discharge of the judgment, for there was a failure to prove its delivery to the defendant, the St. Patrick’s Church Society. As stated, the deceased executed the paper, and retained possession of it during his lifetime. No one but himself knew of its contents until after his decease. The affidavit of Sister Catharine Monaghan made on the 30th day of June, 1891, gives a very natural and probable account of what occurred concerning the instrument two days before the death of Father Earley. She testified that he said to her: “ There is a letter in that drawer (pointing to the secretary) addressed to you. After my death, see to it, or attend to it,”—and that she did not have possession of it until after the death of Father Barley, and that then it was handed to her, at her request, by .the Rev. M. J. Keene, one of the executors named in the will. It was, at the time, in the envelope unopened. This manifestly fell far short of showing a delivery of the discharge. Whether the account of the transaction, as stated by Sister Monaghan in her affidavit made on the 21st day of July thereafter, would tend to show a delivery of the instrument, may be doubted; but we do not care to consider the question, for the reason that we are of the opinion that her recollection of the transaction as stated in the first affidavit is much more likely to be a correct statement of the facts than that given in the second affidavit. It is quite improbable, as stated in her second affidavit, that she went through the form of taking the envelope, containing the discharge, out of the drawer, and into her actual possession, during the lifetime of the deceased. There was no reason apparent to her why she should do so. She plainly stated in her first affidavit that she did not have it in her possession until after the death of Barley. It is suggested by the respondent’s counsel that it was very proper for the court to deny the motion, and leave the parties to litigate the questions in an action to be brought for the purpose of enforcing the judgment. We do not think the plaintiff should be embarrassed, in the prosecution of such an action, by the order of the special term under review.

The order appealed from should be reversed, and the motion to set aside the satisfaction of judgment, and cancel the record of the satisfaction thereof, should be granted, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Bradley, J., concurs in result.


author: Ingraham, J.

text:
    Letitia S. Ferris, as Executrix, etc., Pl’ff, v. Richard B. Ferris et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed November, 1894.)

    1. Dower—Fraud.
    The act of the executors in procuring a release of dower from the widow who is a co-executor, will not be presumed to be fraudulent, where they have no personal interest in the matter and are not trustees for her.
    2. Same—Devise nr lieu op.
    A devise to the widow will be deemed to be in lieu of dower, where the devise of the other real estate is inconsistent with a dower interest therein.
    Action to set aside a release of dower.

      F. J. Mather, for pl’ff; John B. Whiting, for adult def’ts; Hanson G. Gibson, guardian ad litem, for infant def’ts.
   Ingraham, J.

This action is brought to set aside a release of dower of the plaintiff in the property of her deceased husband, executed on the 23d day of December, 1873, on the ground that the same was obtained by fraud. Plaintiff claims that such a relation of trust and confidence existed between herself and her co-executors of the estate of her husband that the release must be presumed to be fraudulent, and that there is upon the defendant the burden of showing that the execution of the instrument by the plaintiff was, under all circumstances, just and proper, and that it was executed by her with full knowledge of her rights. I do not think, however, that such relations could be said to have existed between the plaintiff and her coexecutors. At the time of the execution of this instrument the plaintiff was not an old woman; her coexecutors had no personal interest in her execution of the release, and were not acting in any way as trustees for her; the will of her husband created no trust in her favor; neither of her coexecutors was a lawyer, and the plaintiff alleges that but one of them made any statement to her about the execution of this release. And while, considering the relation that existed between the parties, much less proof of fraud would suffice than where the parties were strangers dealing at arm’s length, at the same time the relations between them were not such as would justify the court in holding that any instrument executed was presumptively fraudulent; and the burden of proof is therefore on the plaintiff to show that some act of the defendants misled her as to her right, and induced her to execute the paper, when but for such act she would not have done so. It is not necessary, I think, to find that there was deliberate misrepresentation. It would suffice if plaintiff could establish that she relied upon the defendant for advice as to her rights, and that the defendant, knowing that fact, and knowing that she was ignorant and relied upon him, failed to advise her, and that it was in consequence of such failure to obtain the advice to which she was entitled that she was induced to execute the release.

A careful consideration of the interest of the plaintiff at the time the release was executed, and of what was said and done by Mr. Ferris, her coexecutor, fails to establish that plaintiff is entitled to any relief. In considering this question, it is necessary to determine whether or not, under the will of her husband, plaintiff was put to an election as to whether she would accept the devise contained in the will or insist upon her dower in her husband’s property. Isaac Ferris, at the time of his death, was the owner of two pieces of real estate—one, his residence at Roselle, M. J., and the other, the house and lot, 108 East Twelfth street, in the city of Mew York. By his will he gave to the plaintiff his residence at Roselle, and to two unmarried daughters his house in Mew York for their lives, with remainder over to his grandchildren, giving to his executors a power of sale of the Mew York property. There was a mortgage upon both pieces of property—one of $4,000 upon the Roselle house, and one of $7,000 upon the Mew York property.

The rule as to whether or not a wife is put to her election is stated by Chancellor Kent, in the case of Adsit v. Adsit, 2 Johns. Ch. 450, as follows: “ The legacy is not declared, by any express words in the will, to be in lieu of dower. The inquiry, then, is whether such an intention in the testator is to be collected, by clear and manifest implication, from the provisions in the will. To enable us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repugnant to its dispositions, or some of them. It must, in fact, disturb or disappoint the will.”

Applying this test, I think it clear that the devise of the house to the daughters was inconsistent with the plaintiff’s having a dower interest therein. The testator had a large family, and owned, at the time of his death, but these two pieces of real estate. It was impossible for him to give to his two daughters an equal interest in the house, if the wife was at the same time to be entitled to one-third of the income for her life. He anticipated the necessity of the sale of the premises, either by himself during his life or by his executors after his death, and made a provision that in case of such sale the proceeds should stand in the place of the house, and the income be paid to his daughters for life, with the disposition of the remainder over. Yet that would be clearly impossible if his wife was to be entitled to the income of one third of the proceeds during her life; and thus, I think, the claim of the plaintiff to dower in this Hew York real estate would defeat the express intention of the testator, and would thus be inconsistent with the provisions of the will.

The position of the plaintiff at the time was, then, as follows: She had received by the will a devise of the residence of her husband at Roselle, and stood in a position in which she was required to elect whether or not she would accept that provision of the will or insist upon her- dower. It was necessary that she should make such an election within one year after the death of the testator. See 1 Rev. St. p. 742, § 14. She was an executrix under the will, and was aware of its contents. She was also aware of the fact that she was entitled to dower in the Hew York property. She was executrix of the will, in whom was vested a power of sale of such property, and in case of the sale would be one of the trustees whose duty it would be to invest the proceeds of the sale for the benefit of the daughters. Under such circumstances, she was requested to execute a release of her dower interest, which would be in effect an election to accept the devise of the residence in lieu of her dower; and that request was made of her by her cotrustee, making at the time no false statement to her of the fact, but recommending it as proper and necessary for the benefit of the estate. The plaintiff’s recollection of just what happened at the time of the execution of this instrument is somewhat vague, and, while I have no doubt of her entire good faith, I do not think it can be implicitly relied upon. She was under the impression that the paper was executed at the time of Mr. Ferris’ visit to her in Hew York. This, however, is shown to be a mistake, as the paper-was executed in Hew York, at the office of Mr. Leveredge, and the acknowledgment of the instrument was taken before him. There was no difficulty, therefore, in the plaintiff’s obtaining from Mr. Leveredge, at the time she executed the paper, a full explanation of its effect upon her, as Mr. Ferris was not present when the paper was executed. Mr. Ferris denies any recommendation to the plaintiff to execute the release, but says that it was done at the suggestion of Mr. Leveredge. Of that Mr. Leveredge has no recollection, the instrument having been executed over twenty years ago. But, however that may be, there was a sufficient lapse of time between any communication that Mr. Ferris made to the plaintiff and the execution of the instrument to enable her fully to consider the matter and to obtain advice as to what was best for her to do. There is an entire absence of evidence of any attempt to force the plaintiff to execute the release, or of any evidence to show that its execution was sprung upon her without giving her the chance to consider the question, or determine whether or not she should release her dower; and there is nothing to show that the advice that Mr. Ferris gave was not proper advice, or that he withheld from her any information that he was bound to give her. Nor can it be said that the execution of the release was entirely without consideration. If she had expressly refused to execute it, those interested in the estate would have had the opportunity to contest the plaintiff’s right to dower in the New York real estate and to possession of the Roselle house, and, if successful, could have compelled the sale of the Roselle house, in place of which the plaintiff had the exclusive use and possession of that property, and it has been lost to those entitled to the estate. The plaintiff does not ask in this action to be relieved from the consequence of her failure to elect to insist upon her dower; but, if she did, it is settled that that relief could not be granted. See Akin v. Kellogg, 119 N. Y. 447; 29 St. Rep. 561. I think, therefore, plaintiff has failed to show that she is entitled to any relief, and the complaint must be dismissed.


author: Gaynor, J.

text:
    Margaret B. Galway, Pl’ff, v. Lucy M. Bryce et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed November, 1894.)

    1. Will— Construction—Suspension oe alienation.
    The suspension of the power of alienation for one life and one minority, and one year in addition for the division of the estate, is valid.
    2. Same.
    The will, in this case, was held to vest the estate in the testator’s children at his death, subject to the widow’s life estate and to be defeated in the case of each child, by his death without issue during the continuance of the life estate, or thereafter during the minority of the youngest child, or, if he left issue, by their death during the same period.
    Action for the construction of a will.

      Thomas K. Pearsall, for pl’ff; Herbert T Ketcham, for Randolph H. Cole, guardian ad litem for infant def’ts; James Troy and Hugo Hirsch, for other def’ts,
   Gaynor, J.

The will of Daniel McCabe devises all of his real estate to his widow for life, and, “ upon the decease ” of his said widow, tó their six children, who are named, “ to be divided among them, share and share alike, within one year after the youngest child shall have arrived at the age of twenty-one years.” A direction then follows that “ in making such division the share of any child deceased and leaving no issue shall merge into the estate, and be divided therewith among the other children,” and that “ the share of any child deceased leaving issue ” shall be held in trust for such issue during their minority. All of the children survived the testator, and were of age at the time of his death, though there were minors when he made the will. The effect of the devise to the children was that the estate vested in them upon the testator’s death, subject to the life estate; for the words “ upon the decease ” of the life tenant did not postpone the vesting of the estate. Nelson v. Russell, 135 N. Y. 137; 48 St. Rep. 64. Such estate, however, was defeasible, in that it was liable to be defeated, in the case of each child, by his death without issue during the continuance of the life estate, or thereafter during the minority of the youngest child, or, if he left issue, by their death during the same period. That this was the testator’s intention is manifest by the words following the devise-—that “ in making such division ” • the share of any child “ deceased and leaving no issue ’’ should merge into the estate, and that the share of any child deceased and leaving issue surviving should go into a trust for such issue during their minority. These words of death and survivorship have reference, not to the time of the death of the testator, but to the time appointed for the division, namely, at the death of the life tenant, or thereafter at the termination of, the youngest child’s minority. The will is that the share of any child deceased at any time before the time appointed for the division, and leaving no issue, should merge into the estate, and the issue then surviving of any deceased child should have their share put in trust during their minority. This construction of the will does not make it via-: lative of the statute against perpetuities, for the suspension of the power of alienation at most could have been during one life and one minority, which counts for a life. Manice v. Manice, 43 N. Y. 303. But the children were all of age at the testator’s death, and the will speaks, in the respect under construction, as in others generally, as of that time (Chapl. Suspen. 86), and therefore the suspension was only for one life, except in the case of the minor children of the deceased daughter; and the one year allowed for division is not a suspension of the power of alienation. Roberts v. Corning, 89 N. Y. 225 The general rule that in the case of an absolute devise to one, and, in case of his death, to another, the contingency is of death in the lifetime of the testator, has no application where the primary devise is only of a life estate. Mullarky v. Sullivan, 136 N. Y. 231; 49 St. Rep. 333. Besides, that is an artificial rule which does not hold against evidences of a contrary -intention in the will, and slight evidences will suffice. In re New York, L. & W. Ry. Co., 105 N. Y. 95; 6 St. Rep. 851. The child Josephine made what was purported to be a conveyance of her share in fee to the life tenant, leaving children who still survive. From the foregoing construction it follows that she was not capable of conveying an indefeasible fee of her share, and that it is now vested in trust for her children. In the case of McCabe, I know of no principle upon which he may be charged with arrears of taxes existing at the death of the life tenant. Let the rights and interests of the parties be found and adjudged accordingly.


author: Gtldersleeve, J.

text:
    Patrick Sweeney, Pl’ff, v. James White, Def’t.

      (New York Superior Court, Special Term,

      Filed October 1894.)

    Parties—Poor person.
    An application for leave to sue as a poor person should be made upon, or soon after, the commencement of the action.
    Motion "for leave to sue as a poor person.

      Thomas Nolan, for the motion; Christopher Fine, opposed.
   Gtldersleeve, J.

The plaintiff makes an application for leave to sue as a poor person. It appears from the plaintiff’s own papers on this motion that more than three years have passed since issue was joined in the action. Nor does plaintiff offer any excuse or explanation for such gross loches. The suit was actually begun over three years ago, and this application is evidently an afterthought. I am of opinion it should not be granted. Glasberg v. D. D., E. B. & B. Railroad Co., 12 Civ. Pro. R. 50. An application of this nature should .be made upon or soon after the commencement of the action. Ostrander v. Harper, 14 How. Pr. 16. The motion must be denied, but without costs. Motion denied, without costs.


text:
    James J. Madden, Pl’ff, v. Underwriting Printing and Publishing Company, Def’t.

      (New York Superior Court, Special Term,

      Filed October, 1894.)

      ■ Bill of particulars—Libel.
    Where the answer charges plaintiff with committing an offense prohibited by § 577b of the Penal Code, a bill of particulars, setting forth the times, places and manner of such rebates and the names of the persons to whom they were made, should be granted.
    Motion for a bill of particulars, or to make the answer more definite and certain.

      W. F. Severance, for the motion; Herbert Barry, opposed.
   Gtldersleeve, J.

The action is to recover damages for an alleged libel. Paragraph 7 of the answer alleges, on information and belief, that: “ The said Madden therein mentioned, being an agent of the Equitable Life-Assurance Society of the United States, a life insurance corporation doing business in New York state, on one or more occasions paid or allowed, or offered to pay or allow, as an inducement to a person or persons to insure, a rebate or premium, or some special favor or advantage in the dividends to accrue thereon, or some inducement not specified in the policy.”

This allegation charges plaintiff with committing an offense prohibited by Pen. Code, § 577b. The plaintiff demands a bill of particulars setting forth the times, places and manner of such payments, allowances, and offers, and the names of the persons to whom they were made; or that paragraph 7 of the answer be made more definite and certain. Defendant claims, in the affidavit handed up on this motion, that: “ The only evidence which defendant at present has of the said facts consists of admissions made by the said Madden himself; that these admissions do not specify the particulars demanded by plaintiff in his demand for particulars, but merely admit the facts as stated in the said paragraph of defendant’s answer.”

The defendant cites the case of Ammidon v. Central Rubber Co., 39 St. Rep. 350; 14 N. Y. Supp. 769, in support of the contention that defendant should not be required to furnish a bill of particulars when it denies any adequate knowledge of the particulars demanded. I do not think the case applies. While it is true that a bill of particulars should not be directed where it tends to defect or impair justice, and that the court must exercise a wise discretion in granting or withholding the order, still I am of the opinion that in this case, if the defendant intends to introduce testimony on the trial in support of the allegations of the seventh paragraph of the answer, it is only fair that the plaintiff should have a chance to guard himself against undue surprise at the trial. The alternative relief asked on this motion is that the paragraph be made more definite and certain. This,, however, is hardly a case to bdmit of such a mode of relief. The Code (§ 546) permits this to be done where the denials or allegations are “so indefinite or uncertain that the precise meaning or application thereof is not apparent" This can hardly be said to apply to the allegation of paragraph 7 of the answer. If the court can see the meaning of the allegations with ordinary certainty, the pleading is not indefinite. Brownell v. Nat. Bank, 13 N. Y. Wkly. Dig. 371; Tilton v. Beecher, 59 N. Y. 176; Rouget v. Haight, 57 Hun, 119; 32 St. Rep. 452; Olcott v. Carroll, 39 N. Y. 436. Moreover, further on in the answer the defendant alleges that plaintiff personally stated to a representative of defendant that he, the plaintiff, as an insurance agent, had given away part of his commission to the insured in order to secure new business, etc., of which allegation no demand for particulars is made. It therefore seems to me, in view of all the facts before me on this motion, that the defendant should furnish a bill of particulars, as demanded, if it intends to introduce evidence on the trial in support of the allegations contained in paragraph 7 of the‘answer.

The order may be settled on notice. Eo costs of motion.

Motion granted, without costs.


author: Robinson, J.

text:
    Charles W. Sebring, Resp’t, v. William H. Stryker, App’lt.

      (Steuben County Court,

      Filed November 5, 1894.)

    1. Service—Witness—Privilege.
    A person, who comes into a county under a subpoena duces tecum, to produce the books of a corporation of which he is an officer, is not exempt from the service of a summons issued by a justice of the peace of such county, where such summons may be served upon him in the county of his residence.

      3. Same—Waiver.
    Such exemption is lost by failure to assert it on the return day of the summons and cannot be raised for the first time upon appeal.
    1
    3. Evidence—Admissions.
    A party may prove the sworn admissions of his opponent by paroi, and need not prove them by the minutes of the court.
    Appeal from a judgment in favor of the plaintiff.

      Richard H. Thurston, for app’lt; Jas. 0. Se bring, for resp’t.
   Robinson, J.

This is an appeal from a judgment rendered by a justice of the peace upon default of the .defendant. Affidavits and the return of the justice show that the summons was served upon the defendant while he was in attendance at a court of the said justice as a witness in a case then being tried. A subpoena duces tecum had been served on him in Chemung county, requiring the production of certain books of the Columbian Knights, a corporation of which he was an officer. The defendant was a resident of Onondaga county. The point is made that the appearance of the defendant was voluntary because, under § 869 of the Code of Civil Procedure, the subpoena would have been deemed to have been sufficiently obeyed if the book or paper had been produced by a subordinate officer or employe who possessed the requisite knowledge to identify and testify respecting the purposes for which it was to be used; and, if a personal attendance of a particular officer was required, a subpoena without a duces tecum clause must also be served upon him. I hardly think that this construction can be placed upon this section of the Code. The defendant was bound to obey the subpoena duces tecum in one of two ways,—either personally or by his subordinate. He chose to obey the subpoena in person, perhaps not having a subordinate officer possessing the requisite knowledge to identify and testify, and thus compelled to attend in person. This can hardly be claimed to be a voluntary attendance, under all the circumstances. Sander v. Harris, 37 St. Rep. 594; 14 N. Y. Supp. 37. It is the intention of § 2969 of the Code of Civil Procedure to preserve the old practice to compel the attendance of a witness from an adjoin ing county, irrespective of the residence of the witness. The defendant was within the jurisdiction of the justice when subpoenaed in Chemung county. It seems to be settled that a witness coming! from another state for the purpose, only, of attending a trial as? such, is “ exempt ” or privileged ” from the service of summons for the commencement of an action, eundo, morando, et redeundo. Matthews v. Tufts, 87 N. Y. 568; Person v. Grier, 66 N. Y. 124. A resident witness who could have been subpoenaed is only exempt from arrest in a civil action or special proceeding. Frisbie v. Young, 11 Hun, 474.

I have been unable to find any cases holding that by the service of summons under such circumstances the court failed to acquire jurisdiction; on the contrary, however, all authorities agree that it is a personal privilege only, which must be asserted at the first opportunity, or it is* waived. The principle is the same where the privilege is from arrest. It may be waived. The privilege from civil arrest is embodied in the statute, and absolutely void if not waived. Code, §§ 860, 863. The privilege from service of summons depends upon the common law, and for the purpose of encouraging witnesses to voluntarily come within the jurisdiction. Stewart v. Howard, 15 Barb. 26; Farmer v. Robbins, 47 How. Pr. 415; Petrie v. Fitzgerald, 1 Daly, 401; Shults v. Andrews, 54 How. Pr. 380. I fully concur in the views expressed by the court in Pritsch v. Schlicht, 5 St. Rep. 871, that there seems to be no good reason for distinguishing between the case of a witness coming voluntarily within the jurisdiction of the supreme court, and one so coming with the jurisdiction of a court of limited jurisdiction, where his attendance could not have been compelled; but in this case a motion was made, at the first opportunity, to set aside the service of the summons. The defendant in the action under consideration here should have appeared before the justice on the return day of the summons, which was his first opportunity to have claimed his privilege, and, not having done so, thereby waived it. I believe this practice to be in keeping with all the authorities, and was the course pursued, although not discussed, in the following cases: Day v. Harris, 37 St. Rep. 322; 14 N. Y. Supp. 3; Sander v. Harris, 37 St. Rep. 594; 14 N. Y. Supp. 37. It, therefore, follows that the defendant did not voluntarily come within the jurisdiction of the justice, that the service of summons was sufficient to acquire jurisdiction, and that the exemption claimed by the defendant would have been a personal privilege only, which would have been lost by failure to assert it on the return day of the summons, and cannot be raised for the first time upon appeal.

It is claimed that the testimony given on the trial does not establish a cause of action, because the witness testified to the substance of what defendant testified on the trial of another action, according to the best of his recollection. The plaintiff had the right to prove the admissions of defendantmade under oath, and it was not necessary to produce and prove it-by the minutes of the court. Pickard v. Collins, 23 Barb. 444. “ It is not necessary that the witness should be able to testify to the exact language, but he must be able to give the substance. He may state the impression on his mind as to the fact of what he said, but not what he understood to be meant by what he testifies was said.” Abb. Tr. Brief, § 67, and cases cited. “It has been the uniform practice of the courts, in reviewing the proceedings had before justices of the peace, to regard them with marked indulgence and liberality, and, if possible, sustain them by every reasonable and warrantable intendment.” Schoonmaker v. Spencer, 54 N. Y. 366, 370; Knight v. Wilson, 55 Hun, 559; 29 St. Rep. 419; Beecher v. Kendall, 14 Hun, 329.

The j udgment should be affirmed.


author: Ehrlich, C. J.

text:
    George A. Treadwell, App’lt, v. Horace E. Deming, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Trial—Dismissal of complaint.
    A dismissal of the complaint can be sustained only when, in no possible phase of the action, the plaintiff can recover.
    Appeal from a judgment, directed by the court, dismissing the complaint.
    Logan, Clark & Lemond, for app’lt; Stickney, Spencer & Ordway, for resp’t.
   Ehrlich, C. J.

In dismissing the complaint, the trial judge in effect decided that on no possible theory was the plaintiff entitled to recover anything from the defendant. He evidently based this conclusion on some mathematical calculation, drawn from the evidence, the accuracy of which does not -seem to be established. The case presented by the appeal book involves several theories, some dependent on the finding of certain facts, and others upon the construction and legaLeffect of writings and transactions which might bear different interpretations. The judgment appealed from can be sustained, if at all, upon one ground only—i. e. that in no possible phase of the action could the plaintiff recover. The case does not appear to be so situated, and in our judgment it ought to have gone to the jury on the different theories, with appropriate instructions, that the jury might draw proper inferences and reach correct conclusions. To this end the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: Ehrlich, G. J.

text:
    Joseph B. Bloomingdale et al., Resp’ts, v. Henry Steubing, App’lt.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Trial—Resettling order.
    Where an order properly expresses the decision of the court, an application for its resettlement should be denied.
    Appeal from an order denying a resettlement of an order.
    Cuggenheimer, Untermyer & Marshall, for app’lt; D. S. Ritterha?id, for resp’ts.
   Ehrlich, G. J.

The jury at the trial having rendered a verdict in favor of the plaintiffs for six cents damages, the trial judge, upon his minutes, set the same aside as inadequate. The defendant moved to resettle the order, so that the new trial granted should be on the condition that the plaintiffs pay to the defendant the costs of the trial which resulted in the verdict. The trial judge refused to resettle the order, and the defendant appeals.

We think the trial judge was under no obligation to resettle the order as requested. The order, as originally made, expressed the decision as he rendered it, so that resettlement was unnecessary. If any error was committed in granting the original order, or in failing to impose proper terms thereon, it might have been reviewed on appeal from the original order, without the necessity of appealing from the order declining to resettle. For this reason the order appealed from must be affirmed, with costs.

All concur.


text:
    Christina Jans, Resp’t, v. Workingman’s Co-Operative Association of the United Insurance League of New York, App’lt.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Insurance—Life—Warranty.
    Breach of warranty cannot he predicated upon a statement in an application for another policy, where the application for the policy in question contained no such statement.
    Appeal from a judgment entered on verdict in favor of plaintiff.

      W. B. Donihee, for app’lt; Goldfogle & Cohn, for resp’t.
   Ehrlich, C. J.

The action was by the plaintiff, as the beneficiary named in a certain policy of $500, issued by the defendant. The main defense was an alleged breach of warranty contained in the application for insurance, in which the defendant alleges it was stated that the insured, Peter Jans, had not made a previous application for insurance. The only statements of the kind are found in Exhibit Ho. 3 and Exhibit A, and they relate to policy Ho. 22,621, which is marked Ho. lm, and which was issued July 25, 1892. The policy used is marked Exhibit 2, and numbered 1¡267. In the application for this policy there is no statement of any kind which was proved to be untrue. So that the defense of breach of warranty in respect to this policy failed.

The other questions in the case were submitted to the jury under the charge of the court, and the jury found for plaintiff. Their verdict is satisfactorily sustained by the evidence, and the judgment entered thereon must be affirmed, with costs.


author: McCarthy, J.

text:
    George F. Norton et al., App’lts, v. Frederick McCarthy, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    1. Pleadings—Counterclaim—Assignment.
    In an action by an assignee, the defendant can offset only such claims against the assignor as were due or had matured at the time of the assignment, or belonged to him, in good faith, before notice of the assignment.
    2. Same—Consideration.
    The assignee cannot, in such case, inquire into the consideration of the assignment to defendant of a claim against his assignor, which is set up as a counterclaim.
    3. Same—Notice of assignment.
    But the plaintiff assignee has the right to examine the defendant as to the time and manner of such assignment to him, in order to show actual or constructive notice of the assignment to plaintiff.

      Appeal from a judgment in favor of defendant.

      George W. Galinger, for app’lts; Bichard B. Kelly, for resp’t
   McCarthy, J.

This is an appeal from an order denying the plaintiffs’ motion to set aside a verdict in favor of the defendant; and for the refusal to grant a new trial, and to permit the plaintiffs to go to the jury on the question of fact presented by the evidence, and upon the exceptions taken in said action, and from the judgment entered thereon. Plaintiffs sued as assignees of a claim for $760, for work, labor, and services rendered by their assignor to the defendant. The answer denied any knowledge or information sufficient to form a belief as to the assignment, and sets up as a further defense or counterclaim, a demand for $71.74 over and above the amount sued for by plaintiffs against plaintiffs’ assignor, on four promissory notes held by the defendant. To this a reply was served, denying everything except the execution of the four promissory notes, and further alleging satisfaction and compromise of the notes with defendant’s transferrors, transfer of the claims represented by the notes, for value, to a stranger, and also a denial that defendant is a bona fide holder of the notes. Numerous exceptions were taken during the trial to decisions of the court, including^ evidence, and also to the refusal of the court to submit specific questions to the jury, and to the direction of a verdict in favor of the defendant, as well as to the denial of" a new trial. In other words, the plaintiffs’ action is on an assigned claim, which the defendant admits, but counterclaims and offsets against the same the amount óf four promissory notes made by plaintiffs’ assignor, which were sold to defendant on January 3, 1894.

Section 502, subd. 1, of the Code of Civil Procedure, reads: “ If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff’s demand, if it might have been so allowed against the party or the assignee, while the contract belonged to him.”

And this must control. It clearly means that the defendant can only offset such claims against plaintiffs’ assignor, and thus" against plaintiffs, as were due or had matured at the time of the assignment to plaintiffs of the claim in' suit. If this be correct, and the authorities are clear, then there was error in considering, allowing, or directing a verdict for the defendant on the offset, for it certainly appears, and must be admitted, that if the assignment to plaintiffs was on December 5, 1893, then none of the notes of the plaintiffs’ assignor, which were assigned to the defendant, were due or had matured on that date, and could not, therefore, be the subject of an offset at that time; and if it is contended by the defendant that the date of the assignment of plaintiffs’ claim by their assignor was on January 5, 1894, then that question should have been submitted to the jury; and here at least two of the notes offset by defendant were not due or matured on January 5, 1894, and could not be the subject of offset, and was therefore error.

Davies. 0. J. in Martin v. Kunzmuller, 37 N. Y., at page 398, says: “The only question presented foi the consideration of this court upon this appeal is whether the defendants were entitled to set off against the plaintiffs5 demand the amount of the note made by their assignors, which was not due at the time of the assignment to the plaintiffs of the demand against the defendants.”

And at page 402 says: “The defendants’ difficulty is that at the time of the assignment they had no demand against any one. At the time of the assignment to the plaintiffs in this case, the demand of the defendants had not matured, so as to be the subject of a set-off."

And at page 403 says : “We have held that if, at the time of the assignment, the defendant has no present debt due and payable by the assignor, he has no set-off, and that he cannot set off against a debt due and payable by him to the assignor a debt of his which matures afterwards.” See, also, Myers v. Davis, 22 N. Y. 489, 490.

And these cases and many others are fully approved by Gray, J., in Fera v. Wickham, 135 N. Y. 229; 47 St. Rep. 866, in which he says : “In other words, if there is no right of set-off when an assignment is made, it cannot arise afterwards, in favor of a creditor. Cross demands which do not mature until after such an assignment could not have been the subject of set-off when the assignment was made, for a demand in praesenti is necessary to an allowance by way of sét-off. I think the logical and natural extension of the principle of the decision in Myers v. Davis is authoritative in the decision of the present case. The right of set off must attach at the time of the making of the assignment. It cannot arise afterwards.”

Besides, as to any notes or demands which were due or had matured, for such an assignment to entitle the defendant to avail himself of such demand by set-off, he must show that it belonged to him, in good faith, before notice of the assignment. This does not mean that he may set off any claims acquired by him prior to his receiving notice of plaintiffs’ assignment, but that he must prove the fact, as well, that he has acquired the claim (which, under the statute, is already limited to that due or matured at the time of the assignment to plaintiffs) in good faith, and before obtaining notice or knowledge of such assignment. If he acquires this claim after he receives notice of the assignment to the plaintiffs, and in bad faith, it would defeat his set-off. Upon this branch, the plaintiffs had a right to examine the defendant as to the time, date and manner of the assignment to defendant, to show actual nv constructive notice to defendant of the assignment to plaintiffs. This could only be done in the manner observed by plaintiffs,—and also on the question of good faith thereof, and to show, if possible, that the claim or demand had been paid or compromised before the sale and transfer to the defendant.

Of course, the plaintiffs could not question the amount of the consideration paid by the defendant in the purchase, sale, and transfer of these notes or demand.. It is immaterial, and the other party cannot inquire into the same. The assignor could give the demand to the defendant, or sell it to him for an inadequate consideration. It is enough that the defendant had the legal title to the demand, and that the plaintiffs’ assignor and plaintiffs would be protected in a payment or recovery. Greenwood v. Marvin, 111 N. Y. 423, 440; 19 St. Rep. 612; Sheridan v. Mayor, etc., 68 N. Y. 30. The defendant, however, took these notes subject to all the defenses and equities which existed between the defendant’s assignor and the plaintiffs’ assignor up to the time of the making of the assignment of the claim to the plaintiffs, and therefore the plaintiffs would have the right to present and maintain any defenses which their assignor might have bad to these notes at that time. We do not say that the plaintiffs were correct in all the questions put by them, and which were disallowed, and to which they excepted, but we say that sufficient questions were put by them, and disallowed by the court, and properly excepted to by them, to raise the various points which we have treated and commented upon here. The trial justice having erred in directing a verdict for the defendant, and in also excluding evidence as above, the judgment should therefore be reversed, and a new trial granted, with costs to the appellants to abide the event

All concur.


text:
    Max Kruger, Resp’t, v. Bernard Galewski, App’lt.

      (New York City Court, General Term,

      Mled November 20, 1894.)

    Money had and received—Earnest money.
    An action by the vendee for money had and received will lie to recover earnest money on the ground of misrepresentation by the vendor.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      G. ¡3. Drachman, for app’lt; Alfred D. Lind (H. M. Goldfogle, of counsel), for resp’t.
   Ehrlich, G. J.

The plaintiff’s assignor entered into an agreement with the defendant to purchase from him the property known as No. 409 East 115th street for $9,000, and paid the defendant $250 to bind the bargain. An appointment was made for the respective parties to meet and execute a formal contract. They met, and plaintiff’s assignor refused to execute the contract, on the ground that the defendant had represented that a mortgage on the property for $7,000 had three years to run, whereas in fact it had less than a year to run ; whereupon the former demanded the return of the $250, but the defendant refused to pay back the money. Plaintiff’s assignor assigned the claim to the plaintiff, who brought the present action to recover the $250 as so much money had and received by the defendant to and for the use of plaintiff’s assignor. The judge sent to the jury the question whether the defendant had misrepresented the time the mortgage had to run before its maturity, and the jury found on this issue for the plaintiff, so - that, the facts have all been determined in his favor. The main point urged against the recovery is that an action for money had and received would not, on the allegations of the complaint lie in this case. Upon this proposition the authorities seem to hold that an action in that form will lie. Byxbie v. Wood, 24 N. Y. 607; Berry v. Mayhew, 1 Daly, 56; Roberts v. Ely, 113 N. Y. 128; 22 St. Rep. 185; and kindred 'cases.

It follows that the judgment appealed from must be affirmed, with costs. All concur.


text:
    Harris Christian Nagel, Resp’t, v. Albert A. Adler et al App’lts.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment on a verdict in favor of plaintiff.

      Philipp J. Britt, for app’lts; Charles L. Subbell, for resp’t.
   McCarthy, J.

This trial involved a question of fact, which was fairly submitted under proper instructions. The jury having found on the facts against the defendants, and on conflicting evidence, we see no reason to disturb the same.

Judgment is therefore affirmed, with costs.

All concur.


text:
    Thomas Ansen, App’lt, v. Charles A. Burt, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Trial—Dismissal of complaint.
    It is error to dismiss the complaint before the plaintiff has presented all of his evidence.
    Appeal from a judgment dismissing the complaint.

      Foley & Wray, for app’lt; Carpenter é Mosher, for resp’t.
   McCarthy, J.

This is an appeal from a judgment dismissing the plaintiff's complaint. The plaintiff had been examined and cross examined, but the same was not concluded, when the trial justice said he would not allow this case to go to the jury, and therefore dismissed the complaint. The action was for work, labor, and services as captain of a certain barge, at $13 per week for seven weeks, and as watchman for eleven nights at the rate of $1 per night, and for other services particularly detailed. The evidence presented a question of fact, part of the amount being admitted by the defendant’s answer. The court erred in dismissing the complaint. It should have permitted the plaintiff to present all his evidence, and then submitted the question to the jury. The libel in the United States court against the steam tug Meta to recover for personal injuries was not a bar to this action. It was not between the same parties, nor for the same claim, and was in no way connected witli the claim in suit. Nor are the facts alleged in the libel inconsistent with the claim in suit. The only purpose for which it could be used in this case is on the question of credibility of the witness, and this should have gone to the jury.

Judgment is therefore reversed, and a new trial granted, with costs to the appellant, to abide the event.


text:
    Joseph B. Bloomingdale et al., App’lts, v. Henry Steubing, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Damages—Landlord and tenant.
    A verdict for nominal damages was held not to be inadequate, where the tenant, upon abandoning, gave the landlord the keys to show the premises, and the latter entered and made repairs.
    Appeal from an order setting aside, as inadequate, a verdict for six cents, and granting a new trial.

      Ouggenheimer, TJntermeyer & Marshall, for app’lts; D. S. Ritterhand, for resp’t.
   Ehrlich, C. J.

The action was for trespass, in “ forcibly and wrongfully entering upon the plaintiffs’ premises, and depriving the plaintiffs of the usé and enjoyment thereof.” Upon the trial it appeared that the plaintiffs wrere tenants of the defendant with respect to two stores and basements in the houses known as “Nos. 160 and 162 East Fifty-sixth street,” in the city of New York; that about January, 1892, the plaintiffs had abandoned the use of the premises; that the lease contained a provision by which the defendant, as landlord, was permitted to show the premises to persons wishing to hire or purchase. The lease expired in May, 1892, and the premises had become dilapidated. Plaintiffs gave the key to defendant for the purpose, as they state, of showing the premises to persons wishing to hire or purchase, but, as the defendant contends, so that he might renovate the premises, and make them presentable to a tenant, and thus induce a hiring after May 1, 1892. The jury, as juries often do in cases of this character, rendered a' verdict in favor of the plaintiffs for six cents, and this the trial judge set aside as inadequate. There was no forcible entry by the defendant, no eviction, and no forcible keeping out of the plaintiffs. The most that can bo said is that the defendant exceeded his license, and put the premises in good order and condition. This act of the defendant resulted in no injury to the' plaintiffs. Indeed, it tended to make the premises more valuable to them; for they had a right to use them, improvements and all, to the first of May, 1892, and they were not excluded from the exqrcise of this right by any act of the defendant. The damages being unliquidated, and the trespass of a trifling rather than of a substantial character, the jury had the right to fix the amount at six cents—a result quite common in actions of this kind. See Wavle v. Wavle, 9 Hun, 125; Toomey v. D., L. & W. R. R. Co., 2 Misc. Rep. at pages 84, 85; 49 St. Rep. 623. For these reasons the order granting a new trial must be reversed, with costs.

All concur.


text:
    George W. Ferguson, an Infant, by Guardian ad Litem, etc., App’lt, v. George Ehret, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Appeal—Dismissial of complaint.
    It is error to dismiss the complaint, where the defendant is the first and primary cause of plaintiff’s injury and, in driving in the manner he did, was guilty, and the plaintiff was free from, negligence.
    Appeal from a judgment of nonsuit, and from an order denying a motion for a new trial.

      Mason & Pagelow, for app’lt; Ashpel P. Fitch, for resp’t.
   McCarthy, J.

This is an appeal from a judgment of nonsuit against the appellant on a trial before court and a jury, and from an order denying a motion for a new trial. The action was brought to recover damages for personal injuries sustained by the appellant in consequence of a collision between, a wagon he was driving and a team of th'e respondent, driven by one of his employes, on Eighth avenue, near Fifty-seventh street, on the 14th day of March, 1892, whereby appellant was thrown out and seriously hurt. Plaintiff was driving north on the east side of Eighth avenue, close to the curb, on a walk, with a single horse and wagon laden with milk bottles. Next to him, going in the same direction, was another single team, driven by the witness Hoefer, also on a walk. Hoefer’s wagon was laden with 20 bags of potatoes, weighing 180 pounds each. Defendant’s wagon was in the rear, going in the same direction, driving at a gallop. As all of them approached Fifty-seventh street, defendant’s team, in an effort to cross in front of plaintiff’s and Hoefer’s teams, was violently1 driven into Hoefer’s team, causing Hoefer’s team to swing into and against plaintiff’s team, driving it against the curb, upsetting it, and throwing plaintiff out, inflicting the injuries for which the action is brought. The street was unobstructed, and wide enough to allow defendant’s team to pass both Hoefer’s and plaintiff’s team in safety, if carefully and properly driven. At the close of plaintiff’s evidence the complaint, on, motion, was dismissed, on the ground—First, that the plaintiff had not shown himself free from negligence; second, that there was no evidence of defendant’s negligence.

After a careful consideration of the evidence, I am convinced that the defendant was the first and primary cause of this injury, and, in driving in the manner testified to, was guilty of negligence The plaintiff, being on the right-hand side, close to the curb, and there being no obstruction on the street, could do no more than he had done, and was free from negligence. Besides, the defendant had ample room without disturbing or interfering with the plaintiff. This was clearly a case for the jury to determine, and the court erred in taking it from the jury and dismissing the complaint. Judgment is, therefore, reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: Per Curtail

text:
    In the Matter of the Application for the Removal of Augustus Cruikshank, as Trustee of the Estate of Benjamin Lord, Deceased.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Reverence—Practice motion.
    The court, on a practice motion, has no power to make an order of reference to hear and determine, but only to take testimony and report with his opinion.
    2. Avvidavit—Striking out.
    It is error to strike from an affidavit relevant averments, simply because they are claimed to be untrue.
    Appeal from an order granting a reference, and from an order striking out, as false and scandalous, part of an affidavit.
    The petition for the removal of the trustee stated that Cruikshank was trustee under the will of Benjamin Lord, deceased ; that he had brought a suit in the supreme court to construe the will; that the judgment determined that Husted was entitled to one-eleventh of the estate; that Woodruff was personally interested in the estate under assignment from another beneficiary, and (among other grounds for the removal of the trustee) that Oruikshank had virtually surrendered the management of the trust to Yan Mess, his attorney ; “that the said estate had been managed apparently more in the interest of said trustee’s attorney than in the interests of the cestuis que trustent" and that Oruikshank, under Yan Mess’ influence, refused to pay over Husted’s share, for the purpose of forcing the recognition of a forged assignment which Yan Mess had taken, supposing he was buying Husted’s share; “ that, for the purpose of defeating said Husted in his efforts to secure redress, your petitioners allege that the said Yan Mess has procured and instigated certain attorneys to institute proceedings, whereby, through collusion with him as attorney for the trustee, it is sought to change and alter the judgment entered in this court in 1887, construing the will of Benjamin Lord; * * * but, notwithstanding such collusion, the motion was denied by Mr. Justice Patterson, with costs.” The motion to remove the trustee was denied by Judge Patterson.
    The matter asked to be stricken out of the affidavit of Mr. Yan Mess is that part of the following extract which is printed in brackets: “ The facts in regard to the proceedings to amend the judgment in the construction suit, referred to in said Woodruff’s affidavit, are as follows: That some time after the giving of the said general release by the said Husted [it was discovered that the said judgment in favor of the said Husted was procured by the fraud and deceit of the said Woodruff], and that the facts and circumstances touching the same are set forth in the affidavits hereto annexed, which have been served upon the said Woodruff, and are filed with the clerk of this court, together with a copy of-the opinion of Justice PATTERSON on said motion, and that said motion was not denied on the merits, but on the ground that the remedy was tó move to vacate, which motion has been made and is now pending.”-
    On the hearing of the motion to strike out it was ordered “ that it be referred to Gilbert M. Speir, Jr., Esq., counsellor at law, as a referee to hear, determine, and report whether the judgment obtained by Gilbert M. Husted in this court, mentioned in the moyin°- papers, 1 was procured by the fraud and deceit of the said Woodruff.’ ”
    The referee reported that the judgment was not obtained by the fraud of the said Woodruff.
    Mr. Woodruff then moved to confirm the referee, and it was ordered “ that the said motions as made to confirm the said report of said referee, and to strike out, be, and the same hereby are, granted, and that from the affidavit of Edward Van Mess filed in the office of the clerk of this court On October 10, 1892, the allegation referred to in the moving papers herein, to wit, the words, 1 It was discovered that the said judgment in favor of Husted was procured by the fraud and deceit of said Woodruff,’ be, and the same are, ordered stricken out and expunged from the record as false and scandalous, and ten dollars cost of motion and disbursements herein to be taxed by the clerk of this court; and that said costs of motion and said disbursements of said reference herein as so taxed be paid by said Edward Van Mess and said Augustus Cruikshank, the respondents herein, to said A. Edward Wood-ruff. And it is further ordered that in case of an appeal being taken -herein from the order confirming the report of the referee, that such an appeal may be heard on a case or bill of exceptions herein to be proposed by the said respondents, and to be settled by the said referee as on an appeal from a judgment. And it is further ordered that proceedings to enforce this order be stayed for thirty days from the date of this order, and, in the event of an appeal being taken therefrom, that such proceedings be, and they hereby are, stayed until ten days after the hearing and determination of such appeal.”

      JE. G. Perlcins, for app’lt; A. JE. Woodruff, for resp’t.
   Per Curtail

The court, upon a practice motion, has no power to make an order of reference to hear and determine. The only order which can be made is to take the testimony, and report with his opinion. Upon the merits we are of opinion that the court had no authority to strike out relevant averments simply because they are claimed to be untrue. The order should be reversed, with $10 costs and disbursements, and motion denied with $10 costs.


author: Per Curiam.

text:
    James Talcott, Resp’t, v. The American Credit Indemnity Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Attachment—Residence of plaintiff.
    The omission of .the affidavit and complaint to allege the residence of the plaintiff is not supplied by a inference in the complaint to the instrument sued on, which describes plaintiff as residing in a certain city.
    . Appeal from an order denying a motion to vacate an attachment.
    A copy of the bond sued on was attached to and was referred to in the complaint as part thereof. The bond is as follows:
    In consideration of the written and printed application for this bond, which is hereby made part of this contract of indemnity, and the payment of three hundred and forty-eight dollars, the receipt whereof is hereby acknowledged, and in further consideration of the acceptance of all the terms and conditions hereinafter mentioned and made part hereof, the American Credit Indemnity Company grants, bargains, and sells unto James Talcott, of New York city, this, its bond of indemnity, guarantying the said James Talcott against loss to the extent of and not exceeding twelve thousand dollars, resulting from insolvency of debtors over and above an annual net loss of $12,000 (twelve thousand dollars) first to be borne by the said James Talcott on total gross sales and deliveries of goods, wares, or merchandise amounting to $2,400,000 or less, said sales and deliveries to be made to firms, corporations, or individuals actively engaged in commercial or mercantile pursuits in the United States of America, between the date hereof and the 31st day of January, 1894, both days inclusive. This bond is issued and accepted upon the condition that the terms and conditions printed or written by the company upon the back of this bond are accepted by the said James Talcott as part of this contract, as fully as if they were recited at length over the signatures hereto affixed.

      John V. Bouvier, Jr., for app’lt; T. G. Strong, for resp’t.
   Per Curiam.

Neither the affidavit upon which the attachment was granted, nor the complaint, contains any averments as to the residence of the plaintiff, or the place of origin of the cause of action. The recitals in the instrument referred to in the complaint cannot supply the place of an averment, as they are mere words of description, and not of allegation. The order should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.


text:
    Ambrose J. Agate, App’lt, v. Caroline House, as Executrix, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

      1. Payment—Compromise.
    A payment, made in compromise of a claim, cannot be recovered back, though it afterward appears to have been without consideration.

      2. Appeal—Reversal.
    A judgment will not be reversed for slight errors in rulings or inconsistencies in findings, where it is clearly right and the case has been several times before the court.
    Appeal from a judgment in favor of defendant.

      George W. Blunt, for app’lt; Henry W. Taft, for resp’t.
   Per Curiam.

There have been numerous trials and three appeals herein, and it is not our purpose to consider anew the questions that have been settled. See Agate v. Agate, 11 St. Rep. 579. On the last appeal to this court, it affirmed the order denying the motion for a new trial, and affirmed the interlocutory judgment, except that part of it which declared that the indebtedness of William Agate to his father’s estate had been paid, which part they reversed, and ordered that a new trial be granted, to determine if William Agate’s indebtedness to his father or his father’s estate had been paid, and, if not, what amount is due said, estate, and that the issue as to the payment of the indebtedness be referred back to the referee. The referee reported that the indebtedness had not been paid, - and that the defendant was entitled to receive payment thereof; and after determining such indebtedness, and interest thereon, and charging defendant with the rents received, and interest thereon, he deducted the latter from the indebtedness of the plaintiff, which left a balance in favor of the defendant of the difference, which amounted to $11,083.21. The appellant excepts to the method of computation, arid states in his brief that “ if Ann Agate was entitled to interest on $7,143.97 to November 4, 1891, this plaintiff is also entitled to interest ” on defendant’s indebtedness to the same date. In his statement of what the referee did counsel has fallen into an error, because the referee c'omputes the interest on the sums due by both plaintiff and defendant down to November 5, 1885, and after deducting one sum from the other he allows interest upon the balance from 1885 down to the date of his report, which is a correct method of computation. In effect, what the referee did was to determine what were the sums due by each of the parties, respectively, to the other, as of the date of November 5, 1885, and then, upon ascertaining the difference, to allow interest upon such difference down to the date of bis report. At the beginning of the reference the plaintiff objected to procéeding, upon the ground that the debtor’s claim, which was the subject-matter of the reference, was barred by the statute of limitations, and this is urged again upon this appeal. This objection is disposed of, not only by the reasoning of the referee, but also by the terms of the order directing the reference.

Another question that was argued upon the former appeal, and is again urged, is that the indebtedness of William Agate to his father’s estate had been fully paid and satisfied by allowing to him, with the consent of the legatees and heirs, his share in his father’s estate, which it is claimed Ann Agate was to hold for him. It is insisted, however, that, in the light of the new evideuce presented upon this question before the referee, he should have sustained appellant’s contention. The referee, as shown in his opinion, did consider the new evidence offered, and presenting, as it did, a question of fact, he has found against the appellant, and with hiá conclusion we see no just reason to interfere.

The serious question presented relates to the effect that should be given to the release executed by Ann Agate to .Joseph Agate, executor of the father’s estate. It appears that in 1887 an action was commenced by George Y. House, as assignee of Ann E. Agate, to recover for rents of the premises here in dispute, which Joseph Agate had collected, and sent to William, in California. Judgment was rendered against Joseph Agate for upwards of $18,000, which, upon appeal, was reversed, and a new trial granted. Before such new trial, however, Joseph Agate paid $7,500, and obtained from Ann Agate, Carolina E. House, and George Y. House a general release of all claims against him; and this, it is claimed, should inure to the benefit of William, and be resorted to as a shield to protect him from the payment of his indebtedness to his father’s estate. There is no evidence that any portion of this $7,500 was paid out of the rents received by Joseph, nor was any portion of it contributed by William. It is true, as now determined, that Joseph was justified' in paying over the rents that he from time to time received to William, and could not have been obliged to account for them to Ann Agate. And this presents an instance of one making a claim against another, which they settle and adjust between them. Then, because it subsequently appears that such claim never had a valid existence, a third party attempts to interpose a release thus obtained as a barrier to protect himself against the lawful claim of the person to whom the money was paid for such release. We think the respondent is correct in saying that, even if the $7,500 was paid solely in settlement of the suit of George Y. House against Joseph Agate for the collection of the rents, nevertheless it does not appear that William Agate ever had to contribute any portion to secure the release. As it is now decided that William was entitled to the rents that Joseph had turned over to him. the latter could not compel a contribution by William of any portion of the amount thus paid. If Joseph, to release himself from the claim made against him, personally paid a certain amount of money by way of compromise, he cannot, after it \has been decided in another action, to which he is not a party, that the claim against him was without foundation, recover the amount thus paid, either from the persons to whom he paid it, or from the person on whose account the claim is made against him. There are other considerations urged, which enforce the view that the release was never intended for William’s benefit; that' he was never a party thereto; and, never having been obliged in any way to con.tribute, it is not available to him.

Many exceptions were taken to the rulings of the referee upon evidence, and to his findings and refusals to find, all of which, upon examination, present no legal barrier to the affirmance of the judgment. So far as this court is concerned, it has had this case before it in every possible shape; and after all the trials and proceedings, when at last it appears that the judgment is right, the court should not be astute to find errors in rulings, or slight inconsistencies in findings, upon which to hang a reversal. _

_ We think that the judgment should be affirmed, with costs.


author: Parker, J.

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’t, v. John Brady et al., App’lts.

      (,Supreme Court, General lerin, First Depa/rtmént,

      Filed November 16,1894.)

    1. Municipal corporation—Obstructions in street—Liability.
    Where a recovery has been had in an action against a city for injuries caused by negligence of a contractor, in which action notice to defend was given to him, the city may, in an action on his bond, show, by evidence aliunde the record in the former action, that the presence of the obstruction was the subject-matter upon which the person injured relied to recover.
    2. Same.
    The judgment in the action against the city is conclusive upon the contractor in an action by the city on his bond to recover the amount of such judgment.
    3. Same.
    A contractor who obstructs, though with the consent of the city, a side walk without guarding the obstruction, so as to protect the public from injury, is liable to the city for the damages which it is compelled to pay on account of injuries caused thereby.
    Appeal from a judgment directed for plaintiff.

      Joseph A. Flannery, for app’lts; Charles Blandy and Terence Farley, for resp’t.
   Parker, J.

When first before this court, there was a reversal of the judgment in favor of the plaintiff, on the ground that it had failed to show that, as between the city and the defendants, the latter were primarily liable for the wrongful act which occasioned Cruikshank’s injuries, and which supported his recovery. 70 Hun, 250; 54 St. Rep. 1. The record then before the court showed that the plaintiff, to make out its cause of action, had put in evidence the contract between the city and Nutt & Kearns, contractors; the bond given for the faithful performance thereof, on which these defendants were sureties; the commencement of an action against the city by Cruikshank, claiming damages for injuries occasioned by his falling over a pipe which had been negligently placed across the sidewalk by Nutt & Kearns, while at work under their contract with the city; a written notice from the corporation counsel to Nutt & Kearns and their sureties, these defendants, stating the pendency of the action and the purpose of it, and asking that they defend_ the action at their own expense; the judgment roll in the action, and proof of payment of the judgment by the city, together with the amount of the expense incurred by the city in defending the action. The fourth subdivision of the complaint in the Cruikshank action, in its statement of facts, set' forth that Nutt & Kearns negligently left a pipe across the sidewalk, over which the plaintiff fell and was injured. The fifth subdivision contained the allegation that the “city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.” It was held that the result of these allegations was that the injury was occasioned by the concurring 'acts of the contractors and the city, and the issue as to which of the parties were primarily liable as between themselves wasmot presented nor tried. It so happened that on the retrial the court refused to receive the evidence offered by the plaintiff for the purpose of establishing that, as between the city and Nutt. & Kearns, the latter were primarily liable for the injury sustained by Cruikshank, and the judgment rendered in favor of the defendants was reversed for that reason. 77 Hun, 241; 59 St. Rep. 773. On the third trial, the evidence presented on the first trial, and to which we have referred, wjas introduced. In addition, it was shown by proof aliunde the record that the presence of the pipe, unprotected, upon the sidewalk, was litigated in the Cruikshank action, and constituted the subject-matter upon which Cruikshank relied to recover. This evidence was competent. City of Cohoes v. Morrison, 42 Hun, 216; 5 St. Rep. 106; Hymes v. Estey, 116 N. Y. 501; 27 St. Rep. 555; Lorillard v. Clyde, 122 N. Y. 41; 33 St. Rep. 303; Lewis v. Ocean N. & Pier Co., 125 N. Y. 341; 34 St. Rep. 973; Rose v. Hawley, 133 N. Y. 315; 45 St. Rep. 119.

The judgment roll, in connection with such proof and the notice given to the contractor and sureties to come in and defend that action, established (1) that Cruikshank was injured by falling over the pipe ; (2) that leaving the pipe in the situation in which it was, and without guard or protection, constituted negligence ; (3) that Cruikshank was free from contributory negligence; and (4) that he was damaged in the amount for which he had recovery. On the question of primary liability, the plaintiff proved that the -pipe was put in the position in which it was at the time of the accident by the contractors, Nutt & Kearns. As this evidence was not disputed, there only remained the question whether the presence of the city’s inspector at the time the pipe was laid, by virtue of his authority under the contract, made the act of laying the pipe in the manner in which it has done the city’s act. The defendant’s counsel insisted otherwise, and claimed the right toi try anew the question whether the act of which Cruikshank had complained was wrongful. The trial court rightly ruled against him. Mayor, etc., of Troy v. Troy & L. R. Co., 49 N. Y. 657; City of Rochester v. Montgomery, 72 N. Y. 67; Heiser v. Hatch, 86 N. Y. 614; Village of Pori Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550; City of Rochester v. Campbell, 123 N. Y. 408; 34 St. Rep. 77.

We shall now inquire what effect, if any, the presence of the inspector at the time the pipe was laid, and his assent to its laying, had upon the question of primary liability as between the city and Nutt & Kearns. True, the evidence does not show that he was presented and assented, but evidence tending in that direction was offered and excluded; and, for convenience, we shall treat the question as if such facts liad been proved. The provision of the contract upon which defendants mainly found their contention is as follows: “The said commissioner of public works shall be, and is hereby, authorized to appoint such person or persons as he may deem proper to inspect the materials to be furnished and' the work done under this agreement.”

There are other provisions affecting the duty of the inspector and engineer, but they do not confer upon such employes the right to authorize or sanction the doing of a negligent or improper act by the contractors while engaged in the performance of their contract. As stated by Judge Folg-er in City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 480: “The clause is, in effect, no more than a reservation to the plaintiff of a right of supervision of the work as it goes on, so that it shall have concurrent check upon a faulty or deficient performance by the defendant.”

But, assuming that the inspector or engineer could so far represent the city as to authorize the laying of the pipe across the walk, still the contractors were bound to guard it, and do all things needful to save the public from injury. If the right to lay the pipe was acquired by the action of the inspector and engineer, it carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save them from injury. “Consent by a municipal corporation to a person to do a lawful act merely permits it to be done in a careful, prudent, and lawful manner; and when it is performed in any other manner, and an injury to third persons ensues, the author of the injury is liable therefor.” Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 557. Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presenpe on the walk, there could have been no recovery in the action of Cruikshank against the city.

The judgment should be affirmed, with costs.

All concur.


author: Follett, J.

text:
    John W. Lumsdon, App'lt, v. Theodore Gilman et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Banks—Deposit—Right to charge back check.
    When a bank receives a check under an agreement with the depositor, that, if there was any trouble about it, it should be charged back to the latter’s account, such agreement cuts off the questions as to the bank’s negligence and the ordinary effect of the payment of a check by the drawee to the holder.
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes.
    For several years past the defendants have been engaged in the business of banking, under the firm name of Gilman, Son & Co., at Ho. 62 Cedar street, New York. For six or eight years past the plaintiff has kept an account with the defendants,—the ordinary one kept by a customer with a bank. J. J. Nicholson & Sons were engaged in banking at the city of Baltimore, kept an account with Gilman, Son & Go., and were accustomed to send items to that firm for collection against bankers, firms, and persons in New York and in Eastern cities. When items due on demand were received from J. J. Nicholson & Sons for collection, it was the practice of Gilman, Son & Co. to credit them to J. J. Nicholson &-Sons, and, if any of the items were subsequently dishonored, to charge them back. So oftentimes the apparent credit of J. J. Nicholson & Sons was greater than that which they were entitled to have. January 14, 1892, the plaintiff owned a draft for $500, payable to his order, drawn by J. J. Nicholson & Sons on defendant. After banking hours of that day, plaintiff learned that J. J. Nicholson & Sons had failed; and he went to defendants’ place of business, which was closed for the day, but secured an entrance, and found defendants’ bookkeeper, assistant bookkeeper, and assistant corresponding clerk in the office. The plaintiff told them of the failure of J. J. Nicholson & Sons, which fact they knew, presented his draft, and asked to have it credited to his account. The plaintiff testified “I went up to the bank about four o’clock, and, in my frank way, I stated the fact that the banking house in Baltimore had failed, and asked them if they could place that to my credit. The young man who was present at the time (I think, that young man there)— In a few moments the bookkeeper came in (sitting by Mr. Gilman there), and he said the account was all right; they had balance enough to cover it, and they would accept it, as they had not received any official announcement of the failure, provided we did not hold him,—he he did not know how Mr. Gilman would take it,—if I did not hold him personally responsible he would accept it. I sent my book up afterwards, the next day, and it was duly entered up. I considered it then settled. I did not have my book with me, and I simply left the draft until he had consulted with Mr. Gilman, and sent my book up the next day, and it was duly entered on my book. Sometimes I might send up my deposit, and if I did not have the book it would be entered on their books, and sent my book afterwards, and it was entered there.” This was all the evidence given by or in behalf of the plaintiff, as to, what occurred when the draft was credited. The bookkeeper testified in behalf of the defendants : “ He [Lumsdon] said he had a draft of J. J. Nicholson & Sons ($500), drawn to his order, and he carried it around in his pocket during the day, and forgot to deposit it, and wanted to know if I could not help him out, and credit his account. I told him we had heard of the failure, and were not paying drafts of theirs, and although, according to our books, he had a credit, I could not credit it to him. He wanted to know, as a favor, if I could help him out. I told him, as he was an old customer of ours, I would rather see him get the credit, and any favor I could do him I would be very glad. He said, if I would only credit his account, if there was anything occurred,— if anything was not all right,—I might charge it back to his account. I said, of course, if that was the case, I should be glad to do it. I told him, although Nicholson & Sons’ account showed a balance enough for this amount, items that we had received and deposited we had not heard from, and that I was not sure of that account. If anything came up, he said, 1 If you will do that, I will see Gil-man, Son & Co. will lose nothing, if you will credit my account, —if there is anything the matter you can charge it back.’ Our accounts were all taken off, our books footed up and balanced for the night. So I had the young man erase Nicholson’s account there, and add his draft in there. We knew of Nicholson’s failure during the day,—along during business hours,—two or three hours before business closed.” The assistant bookkeeper and the assistant corresponding clerk, who were present at the interview, corroborated the evidence of the bookkeeper. At the time of the credit of the account there was an apparent balance to the credit of J. J. Nicholson & Sons of $1,000, but a few days afterwards it was discovered that there was an error in the account, and that there was a small balance due from J. J. Nicholson & Sons to the defendants; and thereupon the draft for $500. was charged to the plaintiff in his account, who refused to recognize the validity of the charge, and brought this action for the recovery of that sum.

      Henry B. Johnson, for app’lt; D. B. Ogden, for resp’ts.
   Follett, J.

The only issue of fact in the case was, what was the agreement between the plaintiff and the defendants’ clerks ? The learned trial justice submitted this issue to the jury, which found.in favor of the defendants. The verdict controls the rights of the litigants, and it underlies and cuts off the questions which the plaintiff seeks to raise on this appeal. Whether the defendants were negligent in not knowing the true state of the account of J. J. Nicholson & Sons, and the ordinary effect of the payment of a check or draft by the drawee to the holder, become immaterial questions, in the face of the agreement as found ‘by the jury. The fact that the defendants bad not returned the draft, but had forwarded it to the assignee of J. J. Nicholson & Sons, did not give the plaintiff the right to recover the amount for which it was drawn. It had never been demanded, and if the plaintiff demands it, and the defendants fail to deliver it, the question of the plaintiff’s right to recover damages can be raised in another action, but not in this.

The judgment and order should be affirmed, with costs.

Parker, J.-, consurs.

Van Brunt, P. J.—It is apparent from plaintiff’s own evidence that the bookkeeper, in accepting this check after business hours, was acting without authority, and also that he accepted it subject to Mr. Gilman’s approval. Upon the undisputed evidence, no right of recovery was shown.