text:
    Bradford National Bank, App’lt, v. Hascal L. Taylor, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Bills and notes.
    If the legal liability of the maker of commercial paper is changed, in« a material respect, by a fraudulent alteration of his obligation, it vitiates the instrument.
    S. Same.
    In such case, the question whether it is a material alteration or not is one of law for the court.
    3. Same—Blank indorsement.
    An indorsement on a blank note, without sum or date or time of payment, will bind the indorser for any sum, payable at any time, which the person, to whom the indorser entrusts it, chooses to insert.
    4. Trial—Charge.
    In an action on a note, where the defense of alteration is interposed, a charge that “ If you find the notes had been changed, and that the defendant, at the time he indorsed this last note, knew of it, the plaintiff is entitled to recover,” is correct. &
    Appeal, from an order denying the plaintiff's motion for a new trial made after verdict in favor of the defendant at the Erie circuit.

      Charles F. Tábor, for app’lt; John C. Milburn, for resp’t.
   Lewis, J.

The defendant in the spring or summer of 1888, at the request and for the accommodation of a Mr. B. F. Smith, the maker, endorsed in blank two promissory notes of $1,000 each, and delivered them to Smith. The endorsements were made in Bradford, Pa., and the notes were made payable at the plaintiff bank in that city. Printed blanks were used in preparing the notes. The figures “ 188 ” were printed in the blanks for the year, and at the time of endorsing the notes, the figure eight was added, so that the year read “ 1888.” There were blank spaces in the notes for the day and month and for the time the notes were to run. These were left unfilled when the defendant endorsed the notes and'delivered them to Smith. Smith was a personal and business friend of the defendant. He stated to the defendant that he intended to use the notes in 'the purchase of some oil wells, but he did not wish to use them just then, but would in the course of two or three months, and for that reason did not wish to date the notes then, but desired the defendant’s endorsements then as he was at the time in the city of Bradford, and intended shortly to return to his home in Buffalo. The defendant assented to all this, and endorsed the notes and delivered them to Smith, with the understanding that when Smith wished to use them he should be at liberty to fill in the blanks and procure the discount of the notes at the plaintiff bank. Smith, not having occasion to use the notes sooner, retained them until the 9th day o£ September, 1890, when he filled up the blanks in one of the notes with the words and figures “September 9th,” and changed the figures “ 1888 ” to “ 1890,’’ and made the note payable four months after date at the plaintiff bank. The plaintiff at Smith’s request thereupon discounted the note and paid the proceeds of the discount to Smith.

Smith retained possession of the other note till the 16th day . of October, 1890, when he in like manner filled in the blanks with the words and figures, October 16, 1890, changing the figures “88” to “90,” and made the note pay able in three months from date at the plaintiff bank, and the plaintiff thereupon discounted it for Smith and paid him the proceeds thereof. When the notes were about maturing, Smith not being able to take them up, wrote the defendant, under date of January 8, 1891, as follows:

H. L. Taylor, Esq., Buffalo, N. Y.

Dear Sir : Some time ago you indorsed two notes of $1,000 each for me. I told you I would only use them in case of necessity. I did not use them until September last. They will be due this 12th and 19 th. The indorsement I asked you for when I was in Buffalo last month was for the purpose of lifting these notes and to margin my oil to forty cents. I have gotten along all right so far, but these notes, (owing to the continued tightness in money) are bothering me, and I should like very much to get them renewed, and with this in view I enclose you two new notes which, if you feel that you can I should like very much to have you indorse, and I will send you the others on the dates they are due. Please return the enclosed notes, indorsed or not, in the enclosed envelope. I don’t think you would be running great risk, as 1 own twenty wells, against which there is only $1,700, I am sorry to bother you, and in any event will try not" to do so again.”

To which Mr. Taylor replied, under date of January 7, 1890;

B. F. Smith.

Dear Sir : I have your letter of January 3d. I was not aware that you had my notes for $2,,000. Had I been I should have demanded them long ago. I supposed they had been used and destroyed, or destroyed at least, long before now. Your using them at so late a date without notice to me is clearly a sufficient reason for my declining to go any further in this matter. I return the notes enclosed in your letter.”

The following correspondence followed between Smith, the bank and the defendant:

“ Bradford, Pa., January 9, 1891.

II. L. Taylor, Fsq.

“Dear Sir: — Yours of the 7th inst at hand. There was no limit placed upon the time in which I was to use the notes referred to, and I had no reason to think that your confidence in my honesty had been lessened in any way. I expect, to be able after a little to clear up my matters so that you will be entirely released. However, I will be able to attend to it at their maturity, January 12th and 19th, and would ask you to write the Bradford Rational Bank, waiving protest on same. I will have the matter cleared up just as soon as possible. I am negotiating the sale of a lease I am interested in in Forest county, which, if successful, will enable me to do so very soon.

“ Very truly,

“B.'F. Smith.”

“ Buffalo, R. Y., January 10, 1891.”

u B. F. Smith, Fsq.

“ Sir: — I have your letter of yesterday, and in reply will say that I had confidence in your honesty but not in your operations on the market. I loaned you my name at the time wholly for your accommodation to be used, you said, in the purchase of some wells, not for one or two years afterwards, but at that time or very soon. The keeping of these notes and using them so long afterwards to speculate in oil, without consent or notice, is a fraud on me to which I will not consent

“'If these notes are not paid the day they are due I cannot answer for the consequences to you. Rot having indorsed these notes for use at the time they were used, I shall not waive notice. I do not think I am holden for payment.

“ H. L. Taylor.”

“Bradford, Pa., March 23, 1891.

H. L. Taylor, Fsq.

“Dear Sir:—Please let me hear from you in regard to two notes of B. F. Smith indorsed by you, which are past due and remain unpaid.

“ One was protested January 12 and the other January 19.

“ Signed,

“ S. P. Kennedy,

Cashier."

“ Buffalo, N. Y., March 24, 1891.

S. P. Kennedy, Cashier.

“Dear Sir:—I have your favor of date yesterday. I supposed these notes had been paid or extended by Smith. He wrote me January 8, saying he would arrange for them soon, and that he had twenty wells against which there was only $1,700. On January 9, he wrote me again saying he would have the matter cleared up, that he was negotiating the sale of a lease in which he was interested in Forest County.

“ I wish you would get him to secure these notes on his wells or something else, as it is in your line of business and you are there to attend to it.. I will send you the money when you want I should pay it, and wish you would take the matter in hand and kindly look after the ultimate collection of the debt for me. I have no doubt Smith will make all the papers necessary and pay all the costs necessary if as he says he has the property he tells me about.

“ Signed,

“H. L. Taylor.”

“ Bradford, Pa., September 10, 1891.

11H. L. Taylor, Esq., Buffalo, N. Y

“Dear Sir:—I expected to have been able to take up those two notes for $1,000 each at the Bradford National Bank, but the sale of property I was negotiating fell through owing to the decline in oil, and I had bought the royalty in my wells and have had that to pay for, and on these low prices that was all I could do. I dislike very much to ask you to renew them, but I have no other way left on this low market.

“ I. am ready now at any time to secure the payment of these notes by a mortgage on my one-half interest in the fourteen wells that I bought from P. T. Kennedy two years ago for $4,600 (for half), and on which there is $1,500 still owing, and that is all there is against it. There is three boilers, fourteen engines, and everything in first class condition. I feel in hopes that three months will tide us through to better prices and that I can sell some property and pay the notes. I have always paid 100 cents on the dollar and will pay these notes.

Signed,

B. F. Smith.”

“ Bradford, Pa, Sept. 11, 1891.

E. L. Taylor, Esq.

Dear Sir :—Mr. B. F. Smith has not got his matter in shape yet and would like three months more. We told him to write you, and if satisfactory to you would be to us, as undoubtedly you prefer to have us carry it a short time longer than to take it up yourself.

“If satisfactory, please endorse note and return to us and we will cancel the others. We believe that he had explained his matters to you to show you how he stands, and is perfectly willing to give you a mortgage at any time. We know of one piece that he bought of Mr. P. T. Kennedy for for $4,600 on which he only owes $1,500, and his other statements we have always found correct.

“Signed,

“ S. P. Kennedy,

Cashier

“Buffalo, Sept. 12, 1891.

S. P. Kennedy, Cashier.

“ Dear Sir :—I have your very kind letter of yesterday with enclosure of note, which I have endorsed and return in this.

“ I have written Mr. Smith and have asked him to make a leasehold mortgage on the property mentioned to you and him, to you or to me, for you to hold for payment

“ Signed,

“H. L. Taylor.”

“ P. S.—Will yon kindly return to me the notes given, with your stamp upon them.

“H. L. T."

The note so endorsed was the one in suit which was made by Smith bearing date September, 1891, for $2,000, payable to defendant’s order three months after date at plaintiff’s bank, and sent it to the plaintiff to take up the two $1,000 notes aforesaid which were cancelled and mailed to the defendant by the plaintiff, and Smith executed and sent to the defendant the mortgage on his oil property as agreed. On receiving the notes thus returned, the defendant discovered the alteration in the figures 1888. He shortly thereafter returned the mortgage to Smith. He retained the cancelled notes for about three months, and after taking advice of his lawyers as to his liability upon the note in suit, he offered to return the two $1,000 notes to plaintiff and repudiated his liability as endorser of the note in suit. These are all the facts which it is deemed necessary to state.

The court, among-other things, charged the jury as follows: “As I have already suggested, if Mr. Taylor’s version is the true one, that this note was dated in 1888, and thereafter, in the year 1890, Mr. Smith, without the consent and concurrence of Mr. Tayler, changed the date of the year 1888 to the year 1890, that would constitute such an alteration of that instrument as would relieve Mr. Taylor from the obligation of the promise contained in and imposed by his endorsement upon these two promissory notes,” to which charge plaintiff’s counsel duly excepted; and this exception pi'esents one of the questions for our decision.

If the legal liability of the maker of commercial paper is changed in a material respect by a fraudulent alteration of his obligation, such alteration vitiates the instrument, and the question whether it is a material alteration or not is one of law for the court. Crawford v. West Side Bank, 100 N. Y., 55.

If the defendant has brought his defense within this rule of law he is entitled to his verdict. When he endorsed the note in suit he was fully aware of the time when the two $1,000 notes had been made payable by Smith ; they were not made payable with interest. There is nowhere in the record an intimation that there was any restriction upon Smith as to the time he should make the notes payable. ' Had Smith dated them at any time within two or three months after the endorsements were made, and fixed the time they were to run so that they would fall due respectively on the days in January, 1891, mentioned and procured plaintiff to discount them, Taylor’s liability on them as endorser would not be questioned. How was the date then material to the defendant ? Except to fix the times they were to fall due, it was not material whether they bore any date. The question in which he was interested was the time of payment; and that, as we have seen, he left entirely with Smith. He undoubtedly supposed that they would be dated and used some time along during the summer of 1888; but, as we have seen, he delivered his endorsement to Smith without fixing the date that the notes should be used; and if Smith failed to carry out an understanding in that regard, as between an innocent holder of the notes for value and the defendant, the latter must suffer. “It is a general rule that an endorsement on a blank note without sum or date or time of payment will bind the endorser for any sum, payable at any time which the person to which the endorser entrusts it chooses to insert.” Page v. Merrell, 3 Keyes, 118; Weyerhauer v. Dun, 100 N. Y., 154.

The court correctly charged the j ury as follows: “If you find the notes had been changed, and that Taylor at the time he endorsed this last note knew of it, the plaintiff is entitled to recover. Or if he did not have actual knowledge of it, if he had knowledge of such a state of facts as would put him upon inquiry, then the plaintiff is entitled to recover.” The evidence, we think, established beyond any reasonable question that the defendant when he endorsed the note in suit was aware of every material fact touching the filling of the blanks by Smith. He had in. >’ination as to about the time they bore date; for, as we have seei., Smith wrote him that he used them in September, 1890, and J at they fall due on the 12th and 19tli of January, 1891.

It is true he uH not know of the change of the figures “ 88 ” to “90.” It must be ■'ssumed that he was sufficiently familiar with the rules of banking Jo know that the bank would probably require that the notes Would bear some date before purchasing them; and the only reasoi able,inference a business man would draw who had loaned his indorsement as the defendant did in this case, would be that the maker would date the paper at or aqout the time he desired to use it; and the defendant’s letter to Smith under date of January 10, 1891, in which he says: “I loaned you my name at the time wholly for your accommodation, to be used, you said, in the purchase of some wells, not for one or two years afterwards, but at that time or very soon. The keeping of these notes and using them so long afterwards to speculate in oil without consent or notice is a fraud on me to which I will not consent," shows that he understood it. He must be held to have known that Smith had either dated the notes at the time he used them or had left the figures “ 1888 " in the notes and had so filled the blanks as to make them payable in January, 1891. Being thus advised he indorsed the note in suit, and received in exchange for it from the plaintiff bank the two $1,000 notes stamped paid, and also received from Smith the collateral mortgage mentioned. All this is entirely uncontradicted, and yet the jury found that he indorsed the last note without being aware of the situation and without having sufficient information to put him upon inquiry to ascertain the real facts. Such finding was against the undisputed evidence of the defendant himself. After being informed of every material circumstance relating to the alteration of the notes, the defendant consented to indorse the note in suit, delivered it to the plaintiff, required the return of the two notes cancelled, and retained them for three months, and all this after he was informed of the use of the notes by Smith two years and more after the time he made the indorsements.

The plaintiff offered to show upon the trial that the mortgage referred to was ample indemnity for the defendant’s indorsement, and further offered to show that Smith’s financial condition had changed for the worse during the time the defendant was holding the two $1,000 notes. This evidence was excluded and plaintiff duly excepted. This evidence would seem td have been material as bearing upon the defendant’s right to repudiate his indorsement. It tended to show a good consideration for the note in suit. While he held these notes the right of the plaintiff to proceed against Smith to collect the same was suspended. Place v. McElvain, 38 N. Y., 99.

For the reasons stated the order appealed from should be reversed and the verdict set aside, and a new trial granted, with costs to abide the event

Dwight, P. J., concurs, Haight, J., not voting.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Seligman Baer, Resp’t, v. Hudson River Permanent Savings and Loan Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Appeal—Conflicting evidence.
    Where the jury finds upon conflicting evidence the appellate court will not hold that their verdict was not justified by the evidence.
    3. Benevolent associations—Application to witildeaw funds.
    A subsequent application to withdraw funds from an association, at the latter’s suggestion, does not estop the member from claiming under a previous application.
    Appeal from a judgment rendered by the Monroe county, court on the 19th of December, 1892, in favor of the plaintiff against the defendant, and from an order denying a motion for a new trial upon the minutes.

      E. G. Werner, for app’lt; H. J. Stull, for resp’t.
   Lewis, J.

The defendant is a domestic corporation duly organized and incorporated under the laws of the state of New York. Its members pay in at stated periods dues; it is provided in its articles of association that any of its members not having received a loan may at any time, on written application to the board of directors, draw from dues paid by him all or any part thereof, the same to be paid after all prior applications for loans and withdrawals have been satisfied.

The plaintiff was, on the first day of April, 1892, a member and shareholder of the defendant, and as such held shares of stock upon which there had accumulated at that time in dues and dividends the sum of $152. There was at the time of the commencement of the action that sum to his credit on the books of the defendant in dues paid .in by him exclusive of the dividends paid thereon. He had, prior to the 1st of April, 1892, received two loans from the defendant, but they had been paid, up and cancelled, and he had not received any other loan, so that he was entitled to withdraw from the association the amount of money claimed in his complaint, if he did, as claimed by him, give the proper notice to defendant on the 1st day of April, 1892.

That was the principal and main question litigated upon the trial. The plaintiff testified positively to making such an application on that day at the office of and upon the books of the association, pursuant to its rules and regulations, by a Mr. Hertel, one of the trustees, and that Hertel made the proper entry upon the books and signed the plaintiff’s name thereto at his, plaintiff’s request. Other witnesses were called by the plaintiff who gave evidence tending to corroborate his contention.

Mr. Hertel was called, as witness of the defendant and flatly contradicted the plaintiff’s testimony. Other witnesses gave testimony tending to controvert the plaintiff’s contention. The books of the defendant were produced at the trial; and upon inspection thereof, the plaintiff’s application did not appear to be entered, but it did appear that an entry was made npon the books on the day that the plaintiff testified his application was entered, which entry appeared to have been erased. Whether it was the plaintiff’s application that was erased was a subject of conflicting evidence. The jury found upon conflicting testimony in plaintiff’s favor, and we cannot say that their verdict was not justified by the evidence.

Whether the plaintiff made the application in April being a matter of dispute between the parties, at the suggestion of the defendant he made another application in October, 1892. If 'the last application was made under the circumstances as related by the plaintiff, it did not, we think, stop him from claiming under the previous application made in April. As the plaintiff did not base his claim to recover upon the October application, but under that of April, and it being conceded upon the trial that if the application was in fact made in April, the sum claimed was due before the commencement of the action, it was immaterial whether the amount claimed was due if the claim was in fact, made in October and not in April as contended by the defendant.

We have examined the defendant’s exceptions and find nothing in them calling for a new trial.

The judgment and order appealed from should be affirmed. Dwight, P. J., and Haight, J., concur.


text:
    Henry C. Phelps, Resp’t, v. Lucian Rowe, App’lt.

      (Supreme Court, General Term, Fifth, Department,

      Filed January, 1894.)

    1, Contract—Statute or Frauís.
    A verbal promise by an assignee to collect the assigned claim and, out of its proceeds, to pay a creditor of the assignor, is not void under the statute of frauds.
    8. Same—Promise to pat third person.
    The assignee, in such case, having accepted the- claim upon that condition, became the debtor 'to the assignor’s creditor and liable to an action therefor.
    Appeal from a judgment of the Monroe county court, and from an order of that court denying the defendant’s motion for a new trial made upon the minutes.

      P. M. French, for app’lt; John Desmond, for resp’t.
   Lewis, J.

One Jackson Utter owed the defendant about $1,500 for rent of a farm ; he at the same time was indebted to plaintiff in the sum of $240 for apple barrels which he had purchased of him and for which he had agreed to pay the plaintiff when he sold the apples. Utter sold his' apple crop, including the barrels purchased of plaintiff, to a Mr. Burlingame, for the sum of $931.25. A controversy arose between Utter and Burlingame concerning the apple bargain, and Burlingame-refused to pay for them. Utter thereupon made a verbal agreement with the defendant to the following effect: Utter was to transfer his claim against Burlingame to the defendant; defendant was to collect it, and when collected, he was to pay, out of the money received, to the plaintiff the amount of his claim against Utter. Utter made accordingly a formal written assignment of the said claim to defendant. Nothing was said in the writing as to what should be done with the money when collected.

Plaintiff was not cognizant of the agreement or assignment until after they were made. When informed of them, he called upon the defendant, and the defendant promised him that he would pay his claim against Utter when he succeeded in collecting the money of Burlingame.

Burlingame paid the money to the defendant, and though requested so to do, he refused to pay plaintiff’s claim, and this action was prosecuted in the municipal court of Rochester, where plaintiff had a verdict against the defendant for the $240. The action was retried in the Monroe county court where plaintiff obtained another verdict, and appeal was taken to this court. It is the contention of the counsel for the appellant, that the promise not being in writing was void under the statute of frauds. We do not think so.

Utter was under no legal obligations to transfer his claim against Burlingame to the defendant. He did so upon condition that defendant should, out of the moneys when collected pay plaintiff’s claim. The defendant having accepted the claim upon lhat condition, became the debtor to plaintiff for the amount of the Utter debt, when he obtained the money of Burlingame and was liable to the plaintiff in an an action therefor. Lawrence v. Fox, 20 N. Y., 268.

The judgment and order appealed from should be affirmed, with costs.

Dwight, P. J... and Haight, J., concur.


text:
    Maude M. Burke, App’lt, v. John J. A. Burke, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Divoece—Limited.
    It is the policy of the law not to grant separations or divorces for slight and trivial causes.
    Appeal from a judgment dismissing the plaintiff’s complaint in an action for a limited divorce.

      John P. Bowman, for app’lt; Wm. F. Cogswell, for resp’t.
   Lewis, J.

This action was brought for a limited divorce, the plaintiff in her complaint charging that the defendant had been guilty of such cruel and inhuman treatment of her and of such conduct as to render it unsafe and improper for her to cohabit with him, and upon the further ground that the defendant had neglected to "provide for her. The action was referred to Judge James C. Smith, who, after an extended trial of the issues, made his report, dismissing the plaintiff’s complaint. A judgment was directed for the defendant upon the report of the referee, and from the judgment entered plaintiff brought this appeal.

The parties were married in the city of Rochester on the 22d day of February, 1887, and lived together as husband and wife in that city until the 9th day of May, 1889, when the plaintiff left the defendant’s home and thereupon brought this action for separation. The cause was tried at great length; the evidence contained in the record covers more than 350 pages of printed matter; the story of the bickerings and altercations of the parties during the two years and over that they lived together, as related by them and their witnesses tends pretty conclusively to show that their home life was anything but a pleasant one. Their contentions and quarrels seem to have resulted in many instances from very trivial causes and were exaggerated by the irascible and ungovernable temper of both the parties. It is difficult to arrive at a satisfactory conclusion, after a careful perusal of the evidence, as to which one conduced most to bring about the final separation. It is very apparent that they failed to appreciate the obligations they assumed to each other when they entered into their marriage vows. The maturer years and larger experience of Dr. Burke should have enabled him to have better controlled his temper and language and to have induced him to treat his young wife with greater tenderness and respect. The evidence tends to show that his treatment of her was on many occasions severe and unjust.- The serious and irritating physical malady from which the doctor was suffering during the time, should have admonished the plaintiff that it was her duty to be kind and attentive to his wants and wishes. He was for a long time very seriously ill, so much so that his life was dispaired of. He was exceedingly nervous and irritable. He had been subjected to a severe surgical operation and had resorted to the use of anaesthetics to allay his pains and nervousness. All this tends to account in a measure for his language and conduct. There was much evidence tending to show that while the defendant was in this condition the plaintiff was irritable and guilty of conduct and the use of language to her husband which tended to annoy and provoke him. Much of the time the parties lived peacably with each other, but their altercations and quarrels were quite frequent and very bitter.- „

It is the policy of the law not to grant separations or divorces for slight and trivial causes. When parties have deliberately entered into such relations it is incumbent upon them to do everything in their power to make the union a happy one ; and while it is not uncommon that at first misunderstandings and bickerings arise, as a rule the parties finally adapt themselves to their new relations and live comparatively happily with each other.

The testimony does not sustain the charge that the defendant failed to provide for the plaintiff.

The learned referee, a man of large experience and great legal learning, after hearing the testimony and seeing the witnesses, concluded that the plaintiff had failed to establish the allegation's of her complaint, and made a report dismissing her action.. His report was confirmed at the special term, and, after a careful review of all of the evidence, we think the referee arrived at the correct conclusion, and we find no reason for disturbing the judgment.

The judgment should be affirmed without costs of the appeal to either party.

Dwight, P. J., and Haight J., concur.


text:
    Josiah H. Helmer, Resp’t, v. Bartlett Minot, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Limitation—Absence fkqm state.
    Where a prima facie case of absence of the defendant from the state is established, the burden, is cast upon him to show his presence in the state after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim, that is, for six years.
    Appeal by the defendant from a judgment entered in favor of the plaintiff, after a trial, at the Monroe circuit, before the court without a jury.

      Delbert A. Adams, for app’lt; T. S. Dean, for resp’t.
   Lewis, J.

The plaintiff, at the request of the defendant, and for his accommodation, became a surety upon the promissory note of the defendant, dated November 21, 1868, due in one year from date. The defendant failed to pay the note at maturity, and the plaintiff was compelled to and did pay the amount of the note to the holder.

This action was commenced on the 81st day of October, 1891. To recover the amount paid with interest the defense relied upon is the statute of limitations.

The evidence tended to show that the defendant was, at the time of making the note, and up till the spring of 1869, a resident of the city of Lockport, and was there engaged in business; that he closed his business during the spring or summer of that year, and shipped his goods to the state of-Illinois, and left the city of Lockport, stating that he intended to remove to the state of Illinois; he thereafter corresponded with a resident'of the city of Lockport, dating his letters from Bloomington, Illinois. Up to the time of leaving Lockport, he had been seen in that city from day to day, after his removal he was not seen in Lockport until about the year 1872, when he returned there with the dead body of his wife, for burial. He then stated that he was residing in Dakota ; that he had taken .up some government land there, and that he intended to return to Dakota in about one week. There was proof tending to show that he was seen in this state sometime thereafter, but when did not appear. He returned again into this state in the year 1891, to attend his father’s funeral, at which time this action was commenced- He then stated that he had come from the state of Washington. The defendant’s brother testified that he was a resident of Clarkson, in this state, and that he did not know of the defendant residing in this state since he left it in 1869.

These facts having been established by the plaintiff, it made a prima facie case of absence of the defendant from the state, and put the burden of proof upon him to show his presence in the ■state after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim, that is, for six years.

Section 401 of the Code of Civil Procedure provides that: “If, when the cause of action accrues against a person, he is without the state, the action may be commenced within the time limited therefor after his return into the state.” State Bank v. Seawell, 18 Alabama Reports, 619; Nixon v. Palmer, 10 Barb., 178; Mayer v. Friedman, 7 Hun, 218.

The trial court found, as facts upon evidence sustaining the findings, that before the maturity of the note defendant, who prior thereto had been a resident of the city of Lockport, in this state, left said state and went to the state of Illinois, where he took up his residence, and that ever since that time the defendant has continued to reside without the state, and has remained continuously without the state, except upon two- or three occasions, when he was temporarily here as stated above, and held that the plaintiff was entitled to judgment against defendant for the amount due upon the note.

We find no reason for disturbing the judgment. It should be affirmed.

Dwight, P. J., and Haight, J., concur.


text:
    Hinman Louis, App’lt, v. Empire State Insurance Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Costs—Interlocutory judgment.
    In entering an interlocutory judgment overruling defendant’s demurrer, the defendant should be required to pay the costs of such proceedings as,by the operation of the order overruling his demurrer, will be vacated.
    Appeal from an order of the Monroe special term denying the plaintifli’s motion for a re-taxation of costs. ’

      John F. Dorthy, for app’lt; S. L. Adler, for resp’t.
   Lewis, J.

The defendant demurred to the plaintifli’s complaint upon the ground that it failed to state a cause of action. The demurrer was overruled with costs, but with leave to the defendant to withdraw the demurrer and answer over within twenty days upon the payment of costs, and in case of his failure so to do, plaintiff was at liberty to enter final judgment for the relief demanded in his complaint. Plaintiff presented to the cleric for taxation a full bill of costs including the items of twenty-five dollars before notice of trial, one dollar for serving summons and complaint, and sixty-three cents for sheriff’s fees on execution. These items mentioned the clerk refused to tax, and the plaintiff moved the special term for an order directing the clerk to tax said items. His motion was denied, and from the order denying the motion plaintiff appealed to this court.

It was an interlocutory judgment the plaintiff was to enter upon the decision overruling the defendant’s demurrer. The twenty-five dollars costs before the notice of trial he will be entitled to tax when he comes to enter his final judgment. The twenty-five dollars before notice of trial is for preparing the complaint. The complaint being held to be good, it is not necessary to redraw it. The defendant should be required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will be vacated. The plaintiff was obliged to prepare for the argument of the demurrer; therefore he was entitled to costs after notice and before trial; but nothing that he had done before noticing the case for trial was in any way vacated by the judgment overruling the demurrer. The weight of authority seems to sustain this rule. Krxiering v. Lennon, 51 N. Y., St. Rep., 907; Skinner v. White, 69 Hun, 127; 52 St. Rep., 737; Edson v. Dillaye, 8 How., 273; Phipps v. Van Cott, 15 How., 110; Crary v. Norwood, 5 Abb., 219; Anon., 3 Sand., 756.

In Adams v. Ward, 60 Howard, 288, the plaintiff demurred to the answer. His demurrer was sustained, and it was very properly held that he was entitled to costs before notice of trial as compensation for drawing the pleading.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Haight, J., concur.


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    The Town of Dunkirk, Resp’t, v. The Lake Shore and Michigan Southern Railway Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Pleadings—Irrelevant.
    In actions to secure equitable relief, motions to strike from pleadings matter claimed to be irrelevant is addressed largely to the sound discretion of the court.
    2. Same.
    Where the part of the complaint, alleged to be irrelevant, may have bearing with the court in determining the question of costs, it cannot be claimed to be entirely irrelevant.
    Appeal by the defendants from an order of the Erie special term denying a motion to strike out part of the plaintiff’s complaint as irrelevant.

      Daniel H. McMillan, for the Lake Shore & Michigan Southern Railway Company; John G. Milburn, for the Chicago & St. Louis Railroad Company ; M D. Warner, for the respondent.
   Lewis, J.

This is an action brought in equity by the town of Dunkirk through its highway commissioner under § 15 of chap. 568 of the Laws of 1890, to compel the several defendants to carry a highway under their tracks at a point known as Fessler’s crossing within the corporate limits of the plaintiff.

The complaint contains appropriate allegations to the effect that the defendants severally own and occupy railroad tracks running through the town of Dunkirk, used for the purpose of railroad business ; that in building their roadbeds at the point where they crossed the Fessler road, they constructed an embankment some twelve or fifteen feet in height, and constructed approaches thereto leading up to the grade of the railroad bed so that travelers upon the highway were compelled to pass up the embankments and over the railroad tracks to the great inconvenience and danger of the teams and travelers; that the defendants neglected and failed to restore the highway to its former state ; and judgment was demanded that the defendants be compelled at their expense to construct and carry the said highway through the embankments of said railroad and underneath all their tracks, of sufficient capacity to allow the free passage through the same of vehicles and conveyances.

In addition to the foregoing allegations, the complaint stated that a complaint was duly made and transmitted by the commissioner of highways of the town of Dunkirk to the board of railroad commissioners of the state of New York, calling the said board’s attention to the condition of the railroads at said crossing, and to the importance and necessity of an under crossing; that the said board of commissioners visited and inspected the said crossing, and thereafter reported it to be substantially as stated in the plaintiff’s complaint, and recommended that the highway should be carried under the tracks of the said railroads by the defendants so.as to do away with road crossing, and that thereafter each of the above named defendants was served with a copy of said report and recommendation of the said board of railroad commissioners, and that notwithstanding said report of said board and notice thereof to the defendants respectively, they had neglected, failed and refused to follow said recommendation and restore the said highway at the said crossing to its former state.

The defendants moved to strike from said complaint so much thereof as related to the proceedings by and before the board of railroad commissioners. The motion was denied, and from the order denying said motion an appeal was taken to this court. In actions to secure equitable relief greater latitude and liberality are allowed in the preparation of pleadings than in other actions. Motions to strike from pleadings matter claimed to be irrelevant is addressed largely to the sound discretion of the court.

It is not an absolute right of a party to have it stricken out in all cases. The power to strike out such matter should be used with reluctance and caution. Town of Essex v. The N. Y. & Canada R. R. Co., 8 Hun, 360; Bradstreet v. Bradstreet Co., 14 St. Rep., 260 ; Baer v. Seymour, 12 id., 167 ; Finger v. City of Kingston, 29 id., 704.

It is true, as claimed by the appellants, that the powers possessed by the board of railroad commissioners are mainly advisory. The statutes organizing said board have not made any provision for enforcing its recommendations. The complaint states a complete cause of action against the defendants without the part concerning the board of railroad commissioners.

This in its nature is an equitable action. The granting of costs against the defendants, if the plaintiff be successful, is discretionary with the court. It may well be that that part of the complaint alleged to be irrelevant may have a bearing with the court in determining the question of costs. If so it cannot be claimed to be entirely irrelevant. Evans v. Burton, 5 St. Rep., 218 ; Howard v. Tiffany, 3 Sandf., 695.

It may be important upon the question, of costs to show that defendants’ officials had notice of the situation of things complained of for a sufficient length of time before the commencement of the action to have constructed the underway if they had so desired. Had the action been commenced without the facts being called to their attention they might well. have urged upon the question of costs, that they should have had notice and an opportunity to have constructed the underway before being subjected to the trouble and expense of the action. If the matter complained of be stricken from the complaint, there would be no allegation left showing that the attention of the defendants was called to the matter before the commencement of the action.

We are of the opinion that no error was committed in refusing to grant the defendants’ motion, and that the order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Haight, J., concur.


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    William Anderson et al., Resp'ts, v. George W. Steitz, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Appeal—Waiveb.
    Where a cause of action, not alleged in the complaint, has been tried by the consent of the parties, it is too late, upon appeal, to raise any question as to its irregularity.
    2. Evidence—Bubden of proof.
    In an action for services, where the contractor fails to complete the contract within the stipulated time, the burden of proof is on him to excuse the delay, and not upon the employer.
    Appeal from a judgment of the Monroe county court in favor of the plaintiffs against the defendant, for $362.46 damages and $64.50 costs.

      Eugene Van Voorhis, for app’lt; Fanning & Williams, for resp'ts.
   Lewis, J.

One James P. Kane entered into a contract with the defendant to do the carpentry work upon some buildings in the city of Rochester, at the agreed price of $7,000. He proceeded with the work under the contract, and, during its progress, at the request of the defendant, he-did some extra work upon the buildings. > He assigned to the plaintiffs his claim against the defendant for work upon the buildings, and they brought this action in the Munroe county court, claiming in their complaint to recover $580.27, as a balance due under the contract referred to.

The action came on for trial, and at the close of the evidence, at the suggestion of the presiding judge, the jury was excused and the case was submitted to the court for its decision, and the court thereafter found and decided that the plaintiffs, as such assignees, were entitled to a judgment against the defendant for $326, with interest thereon from June 1, 1890, and a judgment was thereupon entered, and the defendant appealed therefrom to this court.

It appeared upon the trial that Mr. Kane, the contractor, had been paid the entire contract price of $7,000, prior to his making the assignment to the plaintiffs.

Without objection by the defendant the question of extras was litigated upon the trial; the plaintiffs proved that Mr. Kane did extra work upon the houses at the request of the defendant, and the value thereof. This was not the cause of action alleged in the complaint, but it being tried by the consent of the parties it is too late, upon the appeal, to raise any question as to its irregularity. The defendant interposed as a defense to the action a claim for damages arising out of a breach of the contract on the part of Kane, which he claimed to set off against the plaintiffs’ demand. Judging from the record it would seem that the case was tried in a rather confused and unsatisfactory manner, and it is somewhat difficult to determine the theory upon which it was finally decided. It was the plaintiffs’ contention that the extras were of the value of $700.40, the defendant claimed to have an offset arising out of the breach of the contract, amounting to $857.03. A Mi1. Crouch testified that Kane and the defendant had an interview in his presence, after the work was completed, and before the assignment to the plaintiffs; that the parties looked over the items composing the extras, and that it was agreed by them that they amounted in value to the sum of $513.40, The trial court found and decided that the parties had such an interview and that they adjusted the value of such extras at that sum; he further found that the extras were reasonably worth that amount. One item of the damages claimed by the defendant was for damages arising out of the failure of Kane to complete his contract within the time agreed upon amounting to $680.27. The trial court, and we think upon evidence justifying his finding, rejected this item of damages. There was evidence to show that at the time of the looking over the accounts as mentioned, the defendant paid Kane the difference between $857.03 and $680.27, being the'sum of $176.76. Ho account seems to have been taken of this payment by the trial court in making his decision.

The defendant made other claims for damages arising out of injuries to his house and furniture caused by defects in the roof of the house. The court found that the defendant was entitled to $354.27 for such damages, which should be set off against the plaintiffs' claim. Some of the reasons given by the trial court for disallowing the claim for demurrage are not very satisfactory.

The contract called for the completion of the work by Kane on or before the 1st day of March, 1890. He concededly failed to complete the. contract within that time, but there was evidence tending to excuse his default. In that respect the burden of proof was on the plaintiffs to excuse the delay in completing the work, and not, as the trial court seemed to think, on the defendant ; but as stated, we think there was sufficient evidence justifying the conclusion the court came to on that question.

The court having found that the extras were of -the value of $513.40, and that amount had been agreed upon between the parties as their correct value, and having found that the setoff to which the defendant was entitled was $354.27,’ it would seem to follow that the amount the plaintiff was entitled to recover was the difference between these two sums, to wit, $159.13, instead of the sum of $326, as found by the court; this latter amount was manifestly arrived at by deducting the defendant’s bill of $354.27 from $680.27, that being the amount the court in another part of its decision found was due and unpaid for said extras. The findings in that regard are inconsistent, and we fail to find any satisfactory evidence to sustain the latter findings.

The provision against assigning the contract or any interest in it, to which oirr attention is called by the appellant’s counsel, evidently did not relate to an assignment of a claim for any amount which might be due upon the contract. The purpose of the clause undoubtedly was to prevent the contractor from subletting any part of the work.

There should be a new trial of the action with costs to abide ¿nt, unless the plaintiff stipulates to reduce the amount of w— am ages to $159.13, with interest thereon from June 1, 1890; and if such stipulation be given, and the judgment reduced accordingly, it should be affirmed, but without cost of this appeal to either party.

Dwight, P. J., and Haight, J., concur.


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    Daniel E. Bartlett, App’lt, v. James W. Mugett, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Justice’s court—Jurisdiction.
    The justice has no authority to dismiss the action, until it is made to appear to him by proof that the amounts in dispute exceed his jurisdiction.

      2 Same.
    He is not ousted of jurisdiction because the amounts claimed in the pleadings exceed that sum.
    3. Appeal—New trial.
    From, a judgment, in justice’s court, dismissing the action on the ground that the amounts involved exceed the justice’s jurisdiction, an appeal for a new trial may be" taken.
    Appeal from an order of the Cattaraugus county court, dismissing the appeal of the plaintiff.

      Jf. 1). Northrup, for app’lt; G. M. Rider, for resp’t,
   Lewis, J.

The plaintiff brought his action in the justices’ court of Cattaraugus county, and claimed in his complaint of his first cause for action, that the defendant was indebted to him fop work and services in pressing into bales 280 tons of bay, at the agreed price of $1.75 a ton, and that there became due to him, therefor, $490 ; that the defendant had not paid any part thereof except the sum of $300; and that there remained due on account thereof the sum of $190. For his second cause of action he alleged that the defendant was indebted to him in the sum of $39.02, for goods, wares and merchandise sold and delivered to the defendant, and that the defendant had paid thereon the sum of $40, thereby slightly overpaying the same. He demanded judgment against the defendant for $185.04, with interest thereon from the first day of December, 1892.

The defendant interposed an answer admitting that the plaintiff pressed a quantity of hay for him at the price stated in the complaint, but that the amount was less than 280 tons, and that he had paid the plaintiff to apply thereon, diverse sums of money amounting in all to $340, and for a further answer alleged that the plaintiff was partly indebted to him for goods furnished, and upon mutual dealings between the parties, in the sum of $110, which was pleaded as a counterclaim, and demanded judgment against the plaintiff for $110. The issue being thus joined, the defendant thereupon moved for a discontinuance of the action on the ground! that it appeared from the pleadings that the sum total of the accounts and demands of both parties in dispute exceeded the sum of $400, and the justice against the objection of the plaintiff granted the motion and dismissed the case, and entered judgment against the plaintiff for costs. The plaintiff served a notice of appeal from the j'ustice’s judgment to the county court of Cattaraugus county, and in said notice demanded a new trial in that court. The defendant thereupon moved the county court for an order dismissing the appeal on the ground “That the justice had no jurisdiction, and could not take cognizance of the action for the reason that the sum total of the accounts of both parties proved to the satisfaction of the justice, exceeded $400.” The motion was granted, and an order entered dismissing the appeal, and from such order the plaintiff appealed to this court.

The justice unquestionably erred in dismissing the action, as it will be seen by an examination of the pleadings that the sum total of the accounts of both parties in dispute did not exceed $400; they, in fact, amounted to just $293.04. The justice had no authority to dismiss the action until it was made to appear to him by proof that the amounts in dispute exceeded his jurisdiction.

It is provided by subdivision 4 of § 2863 of the Code of Civil Procedure that, “Where in a matter of account the sum total of the accounts of both parties, proved to' the satisfaction of the justice, exceeds $400, the justice cannot take cognizance of the action." He is not ousted of jurisdiction, because the amount claimed in the pleadings may exceed that amount. If that were the case the defendant in every case could oust the justice of jurisdictiqn by setting up in his answer a claim for more than $400, no matter how fictitious the claim might be. The Code requires before he shall dismiss the action that he shall be satisfied by evidence. Parker v. Eaton, 35 Barb., 122; G lackin v. Zeller, 52 id., 147; Bailey v. Stone, 41 How., 349.

In the absence of any proof in the case the defendant’s counsel succeeded in inducing the justice to dismiss the action solely upon what he claimed appeared upon the face of the pleadings, and, as ■ we have seen, the pleadings failed to show that the amount involved was beyond the jurisdiction of the justice.

The defendant’s counsel contends that the justice having rendered a judgment of discontinuance, it is conclusive upon the question of the amount involved until it is reversed, and that the only manner provided by the Code for reviewing it is by appeal upon questions of law only. Whether be is right in this contention depends upon the construction which shall be given to provisions of the Code. .Section 2950 provides that, “Where upon the trial of an action the sum total of accounts of both parties proved to the satisfaction of the justice exceeds $400 judgment of discontinuance must be rendered against the plaintiff with costs.” Section 3068 provides: “Where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleading exceeds $50, the appellant may in his notice of appeal demand a new trial in the appellate court, and thereupon he is entitled thereto.” Here, as we have seen, each party did demand judgment for a sum exceeding $50, so that the case falls within the letter of this section.

If a new trial js not demanded in the notice of appeal, then the case is reviewed., úpon questions of law only. But if a new trial be demanded, fhen all questions of law and fact are before the appellate court for consideration, and we see no good reason for any embarrassment to arise upon a new trial in the county court in this case, as it will be quite apparent when the trial comes on from an inspection of the pleadings that the justice, in fact, had jurisdiction of the action. Had the justice proceeded with the trial and decided upon conflicting evidence, that the amount involved did not exceed the limit of his jurisdiction, the defendant unquestionably would have had the right to appeal to the county court, and there try the question over again. If, as contended by defendants’ counsel, the justice’s judgment can only be reviewed upon an appeal upon questions of law, it follows that there must be in this case four hearings before the litigation is ended, two in justice’s court and two in the county court. There does not seem to be any occasion for pursuing such a course. The question here presented should not be confounded with a civil action in a justice’s court to recover damages for an assault and battery, libel or slander, for in that class of actions the justice has no jurisdiction of the subject matter. Here he had jurisdiction until it is proven upon the trial that the accounts in dispute exceed the limit mentioned. It does not, therefore, follow because a new trial can be had in the appellate court in this case, that a new trial could be had in the other class of actions. In the one case the question of jurisdiction depends, as we have seen, upon the evidence, not so in the other case. We are not referred to any case where the precise question here presented has been adjudicated. In Crannell v. Comstock, 12 Hun, 293, the action was commenced in justice’s court, the plaintiff’s complaint was for work and materials, and the amount claimed by him was $115.50. The defendant pleaded a set-off for goods sold and delivered to the plaintiff to the value of $3,000, for which sum he claimed judgment. Both parties introduced evidence before the justice in support of their respective claims; the defendant recovered a verdict for $43.65. An appeal was taken to the county court for a new trial, and the respondent’s counsel in that court raised the question as to the jurisdiction of the justice, because the total of the accounts exceeded $400. It was held on an appeal to this court that the county court had nothing to do with the question whether the justice erred in holding that he had jurisdiction that the appeal not being upon questions of law it did not bring up the testimony taken before the justice, and that the county court had no means of determining whether the accounts proved before the justice exceeded $400, and further, that the appeal brought up the issue of fact joined in the court below to be tried anew in the county court, and that the jurisdiction of that court for all purposes of the trial and judgment was the same as if the action had been commenced in that court originally.

The respondent’s counsel claims that this is not an authority against him for the reason that the question of jurisdiction was not raised in that case in the justice’s court, and for that reason cannot be.considered in the appellate court. There is nothing in this contention, for if the justice did not have jurisdiction, the consent of the parties would not have given it to him. Oakley v. Aspinwall, 3 N. Y., 552; Clyde & Rose Plank Company v. Parker, 22 Barb., 323.

The case of Kirk v. Blashfield, 6 Thomp. & Cook., 509, is not an authority to the contrary. There the justice dismissed the action upon the same ground as in the case at bar, but no appeal was taken from his judgment, the plaintiff commenced a new action in the supreme court an'd recovering less than fifty dollars he demanded and was allowed full costs, the court holding that the justice’s judgment not having been reversed was conclusive upon the question of the jurisdiction of the parties. We think the county court was in error in granting the order appealed from; it should be reversed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Haight and Bradley, JJ., concur.


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    William O. Wyckoff et al., Resp’ts, v. William H. Vicary, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Sale—Title.
    A party, neither the owner nor one upon whom the owner has intended to confer the real or apparent ownership, cannot give a good title.
    3. Same.
    A tona fide purchaser of- personal property other than commercial paper, though from one who has the possession, acquires no better title than that of his vendor.
    Appeal from a- judgment of the county court of ¡Niágara county in favor of the plaintiffs against the defendant for the recovery of the possession of a typewriter and desk, and also from an order of said court, denying the defendant’s motion for a new ’trial on the minutes.

      A. A. Bradley, for appellant; Devoe P. Hodson, for respondents.
   Lewis, J.

The plaintiffs were co-partners. Their salesman, in October 1891, called in an office in the city of Lockport, having upon the door the name of “Lockport Electric Railroad, Light and Power Company,” and found in the office Mr. Charles H. Laurence. He entered into negotiations with. Laurence "for the sale of a typewriting machine and a desk. Laurence told the agent that he was the manager of the Lockport Electric Railroad, Light and Power Company; that the company desired to purchase a typewriter and desk; that he would bring the matter before the directors of the company the following Monday and have them authorize him to make the purchase, and that if the company consented he would so inform the agent. Upon inquiry being made by the agent, Laurence stated, that he should charge the machine and desk to the company if it consented to buy them. The agent thereupon delivered the machine and the desk at the office, and Laurence thereafter ‘informed him that the directors had had a meeting and authorized him to make the purchase, and the plaintiffs thereupon charged the company with the price of the machine and desk, amounting to the sum of $105. There had been some preliminary steps taken at this time looking to the formation of a company of the name mentioned, but it had not in fact been organized and has not since. Laurence had been trying to organize the company but had failed to do so; he had no express authority to act for the company in making the purchase in question. The plaintiffs learning the situation, made efforts to collect the $105 of Laurence, but failed. The defendant in good faith purchased the machine and desk of Laurence and paid him therefor, $75. Plaintiffs failing to get pay for their property, replevied it from the possession of the defendant. The jury, under proper instructions from the court, found that it was the intention of the plaintiffs’ agent to sell the property of the company and not to Laurence. There being no such company in existence, it could not take title, hence there was no sale. Aodliff v. Dallinger, 141 Mass., 1; The Peters Box Company v. Lesh, 119 Ind., 98.

The defendant contends that Laurence having assumed the right to purchase the property for a corporation not then formed, but which was expected to be organized, made himself liable to the plaintiffs for the purchase price of the property, and hence had a right to sell it to the defendant. . Laurence having falsely represented that he was authorized to purchase the property was unquestionably liable to the plaintiffs for its purchase price, but it does not follow that the plaintiffs were obliged to look only to Laurence. It was optional with them to either hold him or reclaim their property. The sale which the plaintiffs intended and supposed they had made having failed for lack of a purchaser was not thereby turned into a sale to Laurence who conducted the transaction.

If plaintiffs had parted with possession of the property with the intention of passing title to Laurence, then, the defendant being an innocent purchaser for value from Laurence, would have obtained good title even if Laurence had obtained possession thereof by fraud. Davis v. Bechstein, 69 N. Y., 440. But the evidence tended to show, and the jury found, that the sale was not made to Laurence. He was not therefore the owner of the property and could not give the defendant a good title to it. The plaintiffs had not clothed him with apparent authority to sell it. They delivered the property, as they supposed, to acorporation. A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor. Ballard v. Burgett, 40 N. Y., 314. Laurence was at the time of the delivery of the property in charge of the office, and ostensibly had charge of the affairs of the proposed corporation, but the evidence shows that he had no authority from the company to make the purchase. It cannot be successfully maintained that Laurence could give the defendant title to the property as agent for the corporation. The corporation not having been organized, could not have an agent, neither could it take title to the property, and, then, the defendant does not claim title from the corporation, but through Laurence.

In the cases to which we are referred in the appellant’s brief,, the vendors intended to confer the real or apparent ownership upon the party under whom the defendants claimed title and right of possession, which distinguishes those . cases from the one at bar. The case was submitted to the jury with proper instructions, and we find no reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haight, J., concur.


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    Asa Razy, Resp’t, v. Christian Whittick, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Appeal—Verdict.
    Where questions of fact are presented which are proper for the determination of the jury, their verdict will not he disturbed on appeal.
    Appeal from a judgment of the supreme court, special term, entered in Steuben county.

      George D. Reed, for app’lt; Murray R. Page, for resp’t.
   Lewis, J.

This action was originally tried in justice’s court in Steuben county before a jury. The defendant was successful in that court and an appeal was taken from the justice’s judgment to the county court of Steuben county. The judge of that court being disqualified to hear the appeal so certified and it was transferred into the supreme court, and was heard at a special term thereof, and the justice’s judgment was reversed, and from that judgment an appeal was taken to this court.

The action was brought against the defendant for wrongfully converting a row-boat of the value of ten dollars.

The plaintiff claimed title to it as a purchaser at a sale upon the foreclosure of a chattel mortgage given by one Mi-. Lovell, the defendant claimed title to the boat as a purchaser at a sheriff’s sale upon an execution issued upon a judgment in favor of the Eochester Distilling Company against Lovell.

' The case was tried in the justice’s court in a careless and unsatisfactory manner. It was not made to appear upon the trial when the mortgage under which plaintiff claimed was given or what property it covered except as it may be claimed to have inferentially appeared from the testimony of the plaintiff that he bought the boat at a chattel mortgage sale.

It was not shown that the mortgage had ever been filed. Lovell, the mortgagor, testified that he took the mortgage to get it filed, but when and where it was filed was not made to appear or that he in fact ever filed it.

Lovell was a son-in-law of the plaintiff. The record shows that the mortgage was received in evidence, but it is not printed in the case.

The plaintiff testified: “ I bought the boat at mortgage sale at Loon Lake; Page’s mortgage sale; chattel mortgage sale. Mr. Page, I suppose, made the sale; he sold the property. Do not know as the boat was included in the mortgage; cannot tell the day mortgage sale took place; Mr. Green, the deputy sheriff, was present at the sale and objected to it; did not know there was going to be a sale until the day of sale.” It was not made to appear what plaintiff paid for the boat. The evidence was conflicting as to whether the plaintiff ever had possession of the boat; he testified that he did at one time, but did not tell when. The boat was manufactured for Lovell in the spring of 1890. There was no evidence tending to show that he had possession of it from the time it was built until its sale to the defendant under the execution aforesaid, which sale took place on the 16th day of August, 1890. The defendant purchased the boat at an auction sale under an execution and paid the sheriff for it. The plaintiff failed to establish a satisfactory title to the boat. The most that can be claimed is that questions of fact were presented which were proper for the determination of the jury. They found against plaintiff and their verdict should not have been disturbed. The judgment appealed from should be reversed and that of the justice affirmed, with costs of the appeal in this court and of the special term.

Dwight, P. J., and Haight, J., concur.


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    John Welsh, App’lt, v. Edward Fallihee, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Costs—Question oe title.
    Where the allegation of the answer amounts simply to the claim of the right of possession by defendant, it does not raise an issue of title to real estate.
    Appeal from an order of the Monroe special term, denying plaintiff’s motion for the relaxation of costs.

      D. Merville Page, for app’lt; Dalson & Dalson, for resp’t
   Lewis, J.

The action was for assault and battery; defendant’s answer was in substance that -plaintiff, immediately prior to the alleged assault, entered upon defendant close and property on which was an ice house, into which the defendant was at the time engaged in putting ice, and stood in the door-way of the house and obstructed the defendant’s business, and that defendant removed plaintiff away from the door, using no unnecessary force, etc. There was no certificate that any question of title to real estate arose upon the trial. The plaintiff had a verdict for twenty dollars for his damages, and claimed a full bill of costs, upon the theory that the title to real estate was in question ; the clerk taxed twenty dollars costs, and the special term denied plaintiff’s motion for relaxation. We think the special term was right. The allegation of the answer amounted simply to the claim of the right of possession by defendant, it did not raise an issue of title to real estate.

The case of Langdon v. Guy, 91 N. Y., 660, was a much stronger case for a full bill of costs than this, and yet the court of appeals held against plaintiff’s contention. The order appealed from should he affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Bradley, J., concur.


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    Sophia Foels, Resp’t, v. The Town of Tonawanda, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Town—Highway.
    Where the highway commissioner is in charge of the highway bridges of his town including those within the corporate limits of a village in such town, an action is properly brought against the town for an injury caused by a defect in the sidewalk of a highway bridge in such village.
    Appeal from a judgment of the supreme court entered in the Erie county clerk’s office on the third day of July, 1891.
    The action was to recover for personal injuries sustained by the plaintiff in August, 1888, caused by her stepping into a hole in the sidewalk of a bridge in the village of Tonawanda. One of the planks of the sidewalk was out which left a hole in the walk a foot wide and extending across the entire walk. The plaintiff, in company with her two sisters, was crossing the bridge in the day time. She was walking immediately behind her sisters, looking straight ahead, and did not see the hole until she stepped into it and was injured. There was evidence so show that the hole had been in the walk for two or three weeks immediately prior to the accident, ample time to justify the jury in finding that the highway commissioner had constructive notice of it; there was evidence on the part of the defendant controverting the claim of the plaintiff as to the existence of the hole for the length of time mentioned.
    There was evidence that a few day before the accident, the plaintiff was told of the hole in the bridge. She testified that she did. not see the hole before she stepped into it and did not know it was there.
    The verdict was for $4,500; it was the second verdict for that same amount, the first having been set aside by the judge before whom the case was tried, for the reason that in his judgment it was excessive.

      George T. Quinby and John K. Patton, for app’lt; W B. Simeon, for resp’t.
   Lewis, J.

The existence of the hole in the sidewalk of the bridge on one of the highways of the town for such a length of time as to justify the jury in finding the highway commissioner guilty of negligence, was sufficiently established by the evidence.

Whether the plaintiff’s negligence contributed to her injuries, was, under the circumstances proven, a question for the jury.

The defendant, highway commissioner, was in charge of the highway bridges of the town, including those within the corporate limits of the village of Tonawanda, the action was therefore properly brought against the town.

There does not seem to be any reason for reversing the judgment.

It should be affirmed.

Dwight, P. J. and Haight, J., concur.


author: Herrick, J.

text:
    The People, Pl'ff, v. Nedard Bouchard, Def't.

      (Supreme Court, Special Term, Albany County,

      Filed January 22, 1894.)

    1. Contempt—Injunction.
    Unless there is an entire absence of judicial authority to act in the premises, it is the duty of a party to obey an injunction, until it has been revoked by an order in an action in which it was issued.
    2. Same.
    If the act, under which the order was made, is unconstitutional, he should not undertake to test the question by disobeying it.
    3. Sam:e.
    The court can prohibit action by a party, until it can investigate and finally determine the question of constitutionality.
    Motion to punish the defendant for contempt in violating an injunction.

      P. D. Niver, for pl’fE; J. B. Stevens, for deft.
   Herrick, J.

I think the plaintiff upon this motion to punish the defendant for contempt and for violating an injunction, has failed to establish that the defendant has sold oleomargerine or butterine “as butter, the product of the dairy.”

It is not however denied by the defendant but that he has since the service of the injunction upon him sold oleomargerine or butterine; and it is charged by the plaintiff, and not denied by the defendant that such oleomargerine or butterine is an “ imitation or semblance of butter, the product of the dairy ; ” and he has therefore violated that portion of the injunction prohibiting him from “ selling oleomargerine or butterine which is an imitation or semblance of butter the product of the dairy.”

The defendant is therefore guilty of contempt for “unless the order was void upon its face, for lack of jurisdiction on the part of the judge (court) who granted it,” it was the duty of the defendant to obey it.

If there was any error in granting it, unless there was “an entire absence of judicial authority to act in the premises, it was the duty of the defendant to obey the injunction until it had been revoked by an order made in the action in which it was issued, either by motion or appeal or by some other method of direct review.” The People ex rel. Cauffman v. Van Buren, 136 N. Y., 252; 49 St. Rep., 378; Daly v. Amberg, 126 N. Y., 490-94; 38 St. Rep., 513; Aldinger v. Pugh, 57 Hun, 181-89; 32 St. Rep., 513.

I do not think it profitable to review the question raised by the defendant as to the constitutionality of that portion of § 26 of chap. 338 of the Laws of 1893, which prohibits the manufacture or sale of “ any article or substance of human food in imitation or semblance of natural butter.”

If that portion of the act is unconstitutional and the injunction order heretofore granted was in that particular erroneous, the remedy of the defendant was to move to vacate or modify the same or appeal from the order granting it; and not undertake to test the question by disobeying the order of the court.

Assuming the act in question to be unconstitutional, I do not think that would render the injunction void on its face.

The court has jurisdiction of the person of the defendant and of the subject matter of the action ; it had jurisdiction to determine whether the act under which the plaintiff proceeds is a valid act.

“Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them ; the question is whether, in the case before a court, their action is judicial or extra-judicial ; with or without authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree then the court has jurisdiction. What shall be adjudged or decreed between the parties, and with which the right of the case, is judicial action by hearing and determining it.” Fisher v. Hepburn, 48 N. Y., 41-52.

The only question is, had the court power to pass upon the question, if it had, the order is not void upon its face, although the court may have come to a wrong determination. People v. Sturtevant, 9 N. Y., 263.

Whether the law is constitutional or not, is a judicial question to be determined by the court, and it could prohibit action by the defendant until it could investigate and finally determine. People ex rel. Negus v. Dwyer, 90 N. Y., 402-9.

Being satisfied, however, that the defendant simply intended thereby to test the legal question that he desires to raise, and that no willful contempt of the court was intended, the punishment for the violation of the injunction will be moderate.

Let an order, therefore, be entered, imposing a fine of fifty dollars upon the defendant, with the direction that he stands committed to the county jail of Albany county, until such fine be paid, not to exceed thirty days.