text:
    Francis D. Dowley, Rec’r, App’lt, v. Louis Schiffer, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 2, 1891.)

    1. Contract—Illegality in one part of divisible contract no defense TO ACTION ON OTHER PARTS.
    In an action upon a divisible contract, which, is not void ab initio, the fact that performance of one of the parts of the contract would involve an illegal act, though it would preclude a recovery upon such part, is no defense to a claim upon the other part, which involves no illegality, and has been performed, and the fruits of which the defendant has accepted.
    2. Same.
    The West Side Electric Light & Power Co. contracted to supply defendant with electric light for one year and also to equip his premises with the necessary wiring for that purpose, the cost of which defendant was to-bear. After the wiring was completed and the light had been supplied for awhile the connection between the main works and defendant’s premises was cut down by direction of the commissioner of public works because it consisted of overground wires in violation of the statute. Held,. that the contract was a divisible one and that plaintiff as receiver of the Light & Power Co. could maintain an action for the expense incurred in. wiring the premises.
    Appeal from a judgment of the sixth district court in favor of defendant, in an action brought by plaintiff as receiver of the West Side Electric Light & Power Company, upon a contract to supply electric lighting to defendant, and for the expenses incurred in equipping his premises for such lighting purposes.

      John J. Lenahan, for app’lt; Clemens J. Kracht, for resp’t.
   Bischoff, J.

It appeared on the trial that on or about January 11, 1889, the West Side Electric Light & Power Company and the defendant agreed in writing that the company should supply the defendant with electric light for the term of one year, to be paid for at a specified rate per month by defendant; and further to equip his premises with the necessary wiring for lighting purposes, the cost of which equipment defendant promised to bear. The contract also provided that the connection between the defendant’s premises and its main line should be made at the expense of the company ; but it nowhere appeared, from the contract that this connection was intended to be made in any manner interdicted by law.

When the necessary wiring of the interior of defendant’s premises was completed, the company commenced supplying the light and continued to do so for a period of about six weeks, and then, by the direction of the commissioner of public works of the city of New York, the connection between the defendant’s premises and the company’s main line was cut down and removed because it consisted of overground wires in violation of § 4, chap. 716 of the Laws of 1887, the written permission from the board of electrical control not first having been had and obtained as therein required. Plaintiff brought his action after the connection had been removed.'

The defendant contended that the use of the prohibited wires rendered the entire contract unlawful and for that reason plaintiff was not entitled to a recovery. The opinion of the trial justice accompanying the return shows that his decision was based exclusively upon such supposed illegality of the contract To this conclusion, however, we cannot assent.

It was not unlawful for the company to agree to supply the defendant’s premises with electric light, and to equip them with necessary wiring to utilize the light when supplied. Such a contract is not immoral or against any rule of public policy, and does not contravene the provisions of any statute, chapter 716 of the Laws of 1887 having no application to conducting wires in the interior of dwelling houses and other buildings. It is apparent from the statute referred to that the legislature intended no more than an interdiction of overgound wires in the streets of the city of New York, without previous permits. The contract alone discloses no intention on the part of either party to do other than what may be lawfully done; nor does the testimony show that at the time of the making of the contract the use of prohibited wires was contemplated by either party. The assumption, therefore, that the company when it agreed to supply the defendant with lighting intended to do so by prohibited and unlawful means is wholly arbitrary and unwarranted. The illegality of a contract is never presumed, but must be affirmatively shown. Nelson v. Eaton, 26 N. Y., 415; Abbott’s Trial Evidence, 789; Wharton on Contracts, Vol. 1, § 344. And to render a contract void on the ground of illegality it must have been tainted with such illegality at its inception. If lawful when made, it cannot become unlawful thereafter. Wait’s Actions & Defenses (Vol. 7, 66).

The use of unlawful means by one or the parties in performing his obligation under a contract may prevent a recovery to which performance is essential, since in that case the party seeking to recover will himself be compelled to assert his own unlawful act; and he cannot successfully invoke the intervention of courts of justice to aid him in securing the profits of his transgression. In such a case the legal interdiction upon the act constituting the performance operates as a disability, and the party seeking to recover cannot assert such performance in support of his claim for compensation. But if the contract is divisible and the party seeking to recover relies partly upon lawful and partly upon unlawful acts to show performance, he will be permitted to recover whatever may have accrued to him under the contract upon such lawful performance.

A contract is held to be severable when the part to be performed by one party “consists of several distinct and separate items, and. the price to be paid by the other is apportioned to each item to be performed or is left to be implied by law. * * * And the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire.” Parsons on Contracts, vol. 2, 517, or as stated and illustrated in Wharton on Contracts, vol. 2, § 899 : “ When a duty is divisible it may be performed in parts, and the receiver may be chargeable pro tanto, and a vendee to whom a part of añ order of divisible goods is delivered is liable for what he received, unless he has suffered damage to that amount by the vendor’s non-performance. Hence, in a contract to publish a work in numbers, at so much a number, it has been held that on partial performance there may be partial recovery. On a contract, also, to deliver 200 stove patterns, a part only of which were made, it was held that the vendor was entitled to recover on quantum meruit for what was accepted by the vendee, deducting any damages the latter sustained from the non-completion of the contract.”

Whether a contract is entire or divisible so that the party performing in part only may recover for such performance, is always-a .question of construction dependent upon the intention of the-parties to be ascertained from the contract.

Applying the rules stated by the authors quoted, we must regard the contract in evidence in the case at bar as divisible. It is-plain that the obligation of the West Side Electric Light & Power Company was twofold. But so also was the obligation of the defendant. The company was to furnish the defendant’s premises with the necessary wiring for lighting purposes, and for these services and materials the defendant was to pay. Thereafter the company was to supply defendant’s premises w.ith electric light,, and for the light used the defendant was to make monthly payments. The wiring of defendant’s premises was completed, and in that respect the company fully discharged its obligation and became entitled to the amount agreed upon.

It is true that the defendant may have been induced to incur the expense of wiring his premises by the company’s agreement, thereafter to supply him with light: but, if he was disappointed in that respect, he might have recovered such damages as he suffered by a counterclaim in the action, if sustained by sufficient proof and made on proper allegations.

In Tipton v. Feitner, 20 N. Y., 423, the plaintiff had contracted forthwith to deliver to defendant a quantity of dressed pork for a price agreed upon, and also to sell .him upon their arrival, at another price, a number of live hogs. The pork was delivered, but not the hogs, and the defendant, claiming the contract as entire and indivisible, refused to pay for the pork delivered. The court sustained the plaintiff’s right to recover and construed the agreement to be divisible. And the rule applicable to this class of cases is stated by Selden, J., as follows: “ It by no means follows, because a party has agreed to do several things, by one and the same contract, that performance of the contract in all its parts is a condition precedent to any right to claim payment for the portion which may have been done. Were this so, there could be no such thing as independent covenants ’ in any contract. It is always a question of construction, depending upon the terms of the contract, its subject matter, and the circumstances under which it was made, whether there is a condition precedent or not There are certain well-established legal principles which seem to me decisive of this question in the present case. It is plain of itself, and well settled by authority, that when by the terms of a contract a payment by one party is to precede some act to be done by the other, then the performance of the act cannot be treated as a condition of the payment, as in the case of contracts for the sale and conveyance of lands, where payments are to be made before the time fixed for the conveyance.”

In the case now under consideration it does not appear from the contract that payment to the West Side Electric Light & Power Company for the cost of wiring the defendant’s premises was to be postponed until after the company had supplied the light, or some part thereof, and in the absence of such a provision the law implies a promise to pay immediately upon the performance of the services, and the.furnishing of the materials required. See Tipton v. Feitner, supra. Upon the trial it was proved by the plaintiff, and not controverted by the defendant, that the West Side Electric Light & Power Company had fully complied with so much of the contract as required it to equip the defendant’s premises with the necessary wires and appliances to enable him to utilize the light thereafter to be supplied, and the amount which the company claimed to have reasonably expended in that behalf was in no way contested; and in the absence of any counterclaim by the defendant for damages resulting to him from the breach of - the company’s obligation to supply him with light for the stipulated period, there should have been a judgment for the plaintiff in the amount of expense incurred in the equipment of the defendant’s premises.

For the reasons above stated we must hold the judgment ap- - pealed from to have been erroneously awarded.

Judgment reversed, new trial ordered, with costs to abide the ■event.

Allen and Pryor, JJ, concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edward Sutorius, App’lt, v. Isaac F. North, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 2, 1891.)

    11 Undertaking—Arrest—Liability of sureties as to costs.
    The costs intended to be secured by an undertaking given pursuant to § 559 of the Code are not the costs of the action for which the defendant in the event of his success may recover judgment, but only such costs awarded to him as accrue directly from the arrest, or in proceedings in the action, or otherwise, necessitated by such arrest.
    2. Same—Pleading.
    Hence, in an action upon such an undertaking a defense of payment may properly be stricken out as sham, where it appears that the only payment made was of the general costs of the action.
    Appeals from the following orders made at special term: 1st. An order denying plaintiff’s motion to strike out as sham the defense of payment. 2nd. An order denying plaintiff's motion that the answer be made more definite and certain. 3d. An order denying plaintiff’s motion for a further bill of particulars concerning the alleged payment.

      Davis & Chapin, for app’lt; Daniel D. Sherman, for resp’t
   Per Curiam.

The learned counsel for respondent appears to have misconceived the provisions of § 559 of the Code of Civil Procedure, regulating the terms of the undertaking required as a condition precedent to the granting of an order of arrest. The costs intended to be secured by the undertaking are not the costs of the action for which the defendant in the event of his success may recover judgment, but only such costs awarded to the defendant as accrue directly from the arrest, or in proceedings in the action, or otherwise, necessitated by such arrest. In the view, therefore, which we entertain concerning the provisions for costs, the defense of payment in this action must be considered sham. The answer admits that in the suit of Bartlett against Sutorius, the defendant recovered judgment against the plaintiff for costs of the action, exceeding $250, and alleges that these costs have been paid; but it does not appear that any part of the costs so paid had accrued to the defendant in that action from the arrest or in any proceedings growing out of it.

The plaintiff’s affidavit, on the motion in this action to strike out the defense of payment as-sham, is not controverted in any particular by the defendant, and conclusively shows that the only payments made by Bartlett were for the general costs of the action- awarded to the defendant in Bartlett v. Sutorius, It necessarily follows that the allegation of the answer, to the effect that Bartlett has paid damages in an amount exceeding the sum specified in the undertaking, is false and untrue, because such payment was not made on account of the undertaking, nor in satisfaction of any indebtedness secured thereby, nor of any liability thereunder, and constituted no defense, therefore, to an action upon it. The motion to strike out the defense of payment as sham should, therefore, have been granted, and had this been done the subsequent motions to make the answer more definite and certain and for a further bill of particulars respecting the defense of payment would have been rendered unnecessary.

The order denying plaintiff’s motion to strike out the defense of payment as sham is reversed, and the motion is granted.

The remaining orders appealed from are affirmed. ¡Neither party to these appeals to have costs against the other.

Allen, Bischoff and Pryor, JJ., concur.


author: Daly, Ch. J.

text:
    The People ex rel. Charles E. Fleming et al., Trustees, Resp’ts, v. A. Bloomer Hart, Rector, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Religious corporations—Election—Mandamus—Referee to supervise.
    Where, at an annual election in an Episcopal Church, seven of the ten candidates voted for were wrongfully declared elected by_ the rector, he-having rejected sufficient legal votes offered for the opposing candidates to have changed the result, and the said seven persons are afterwards ousted from office by a judgment in quo warranto, ■Meld that the judgment of ouster did not destroy the election itself nor the title of the other three; that it created seven “vacancies” in the offices, within the meaning of the aforesaid statute, requiring the trustees of the church “ whenever any vacancy shall happen, * * * by death or otherwise, * * * to appoint a time for holding an election to supply such vacancy;” that it was the duty of the rector to join with the three remaining trustees in making a call for a special election, although they did not constitute a board competent to transact business; that the rector having refused, a mandamus would lie to compel him so to join in holding the special election; and that under the facts shown, the court properly _ appointed a referee to supervise<the special election to be held, and that it had power to make such appointment.
    Appeal from order and mandamus requiring the defendant, as-rector, to join with the three relators, the other trustees,- in holding a special election to fill seven vacancies in the offices of warden and vestrymen of St Stephen’s Protestant Episcopal Church, and appointing a referee to supervise and superintend the election.

      Daniel Gr. Hollins, William H. Hamilton and David Bennett King, for resp’ts; Wager Swayne, Charles Blandy and Andrew J. Shipman, for app’lt.
   Daly, Ch. J.

This is an appeal by the defendant, A. Bloomer Hart, rector of the Protestant Episcopal Church of St. Stephen in the city of New York, from an order of the special term of this court made upon the petition of Charles E. Fleming, church warden, and William F. Watson and Charles Shroeder, vestrymen, corporators and trustees of said church, directing that a writ of mandamus issue to the said rector requiring him to join with the said relators in holding a special election to supply vacancies in the vestry of said church caused by the ousting from office of Stephen R Weeks, as churchwarden, and Thomas F. Cock, Edwin K. Linen, S. Montgomery Pike, Edmund Luis Mooney, Henry W. Mooney and William Gr. Smith, as vestrymen of said church, by a judgment of this court in an action in the nature of quo warranto brought on behalf of the People of the state by the attorney general. The order for the mandamus appointed a time and place for the holding of such election, and directed that it should be held under the supervision of a referee named by the court. From the whole of the order and the writ of mandamus issued in conformity therewith the defendant, as rector of said church, appeals.

It appears that a regular election for church wardens and vestrymen was held in the said church at Easter, 1890, and the defendant, who presided as rector, announced and certified in the usual course that the last named persons, together with these relators, were duly elected, Weeks and Fleming, church wardens; and Cock, Linen, Pike, E. L. Mooney, H. W. Mooney, Smith, Watson and Shroeder, vestrymen. There had been much dissension in the corporation before this election was held, growing out of the action of the former vestry at a special meeting in February, 1890, in voting to consolidate the church with the Protestant Episcopal Church of the Holy Trinity in the same city ; and the rector had refused to give notice of an Easter election in 1890 in view of said vote and the agreement of consolidation entered into in pursuance thereof; but a mandamus to him having been issued by the supreme court requiring a notice of the election to be given and the election to be held, he obeyed the writ and held the election; at which he presided, and the result of which he declared as above mentioned. Subsequently the action of the attorney general referred to was instituted, which resulted in ousting Weeks as church warden, and all the vestrymen except Watson and Shroeder.

Among the officers so ousted were five members of the former vestry who were in office as vestrymen at the time of the said election, viz.: Weeks, Cock, Linen, Pike and E. L. Mooney, and they, deeming that the judgment which ousted them established the invalidity of that election, and there were no successors to the former vestry chosen thereat, claimed to hold over under the statute; and upon their relation the attorney general commenced an action in the supreme court against these relators as defendants, together with the remaining members of the former vestry not joined as relators. The complaint in that action set' forth the election of church wardens and vestrymen at the annual election of 1889, and claimed that no person had at any time since been chosen or elected in their stead, and that these relators, Fleming, Watson and Shroeder, wrongfully claimed and asserted that they had been elected at the election of 1890, and were usurping the offices of church warden and vestrymen, and demanded judgment ousting them from such office and adjudging the former vestry entitled to the offices by virtue of the election of May, 1889. That action was tried and resulted in a judgment in favor of these relators, Fleming, Watson and Shroeder, dismissing the complaint upon the merits. Such judgment was rendered after the making of the order now appealed from, but the action was commenced while the application of these relators for this mandamus was pending.

The judgments establish, as between the relators here who were elected in 1890 and all other persons claiming to have been elected with them at such election, or claiming to hold over for want of a valid election in 1890 :

First. That these relators are lawfully in office-pursuant to said election, and lawfully exercising the powers of trustees of said church.

Second. That the other persons claiming to have been-elected at the time have no title to office as church warden or vestrymen.

Third. That the former vestry elected in 1889 does not hold over, and that these relators were chosen in their stead.

The judgments are not, in one sense, conclusive upon the defendant here, the rector of the church, because he was not a party to the actions in which they were rendered and could not properly be made a party thereto, such actions being brought to try the title of the claimants, who were made defendants therein. But inasmuch as the only way in which the title of rival claimants to said offices could be determined was in such actions the judgment therein is conclusive upon all other persons who do not claim the same office, but who might urge a doubt or question as to the title of such claimants where such doubt or question would affect the relief demanded against them in any collateral proceedings to-which they and such claimants were parties. Such doubt or question is raised in this proceeding for a mandamus against the rector on the relation of these trustees for the holding of the special election. He objects that there is doubt of their title, and claims that to be a sufficient defense to the application for a mandamus. People v. Stevens, 5 Hill, 616. But, if the title of the relators has been established in a direct proceeding to test it, brought by rival claimants, or against them, the objection is answered, and the judgment in such proceeding is conclusive until reversed.

This is the present case, and the adjudications which the relators invoke must not only dispose of the defense that there are rival claimants to the office, but necessarily answer all objections assailing the title of the relators to the office of trustees of the church, and that any other person or persons whomsoever have any right to such offices, dr to exercise the power of church warden and vestrymen, as holding over or otherwise; and, finally, must dispose of the objection that ño vacancy now exists to be filled by a special election. For the contention of the defendant is, that there is no vacancy; that there was a failure to elect any trustees at the election of 1890, or a failure to choose a sufficient number to transact business, which, it is claimed, amounts to the same thing as a failure to elect any, Matter of Union Insurance Co., 22 Wend., 591; and that, therefore, the former vestry holds over and all the offices are filled. Laws of 1813, chap. 60, § 1; Laws of 1884, chap. 158. The contention being that there is no vacancy because the old board holds over, a judgment against the members of the old board that they do not hold over establishes that a vacancy exists; and the number of vacancies is fixed by the one judgment which ousts seven of the trustees, and by the other judgment confirming the right of the three remaining trustees to' hold the office.

.But, if there were no such conclusive adjudications as to title between the rival claimants to the office, it would seem clear that a vacancy was created when the seven persons elected in 1890 were subsequently ousted from office. There was an election regularly held at the church at Easter, 1890, and two church wardens and eight vestrymen were duly declared and certified elected. There was, therefore, a de facto board, competent to discharge the duties of trustees. All the offices were filled by successors chosen in the stead of the former vestrymen, and the latter could not hold over. Were it not for the judgment in quo warranto, all the members of 'the new board would have continued to serve, and the offices would have been filled. That judgment ousted certain of the persons declared so elected, but not all, and there were left remaining de facto trustees in office, with vacancies created by the' judgment, and not existing before it. The case differs from the Matter of the Union Insurance Co., 22 Wend., 591, where it was suggested that if less than the number of trustees competent to convene as a board and transact business had been chosen, “ it might be that the whole election would have been void, as there would not have been a sufficient number of the directors chosen to constitute a board,” because in this case a full board had been voted for by the church and declared elected, and a majority had afterwards been displaced. The vacancies caused by such displacement must be filled by a new election, the same as if such vacancies had been caused by the resignation or death of a majority of the board. This is substantially the view taken by the supreme court in affirming the judgment above referred to. People ex rel. Cock v. Fleming, N. Y. Law Journal, March 18, 1891.

This last consideration disposes of all that is argued against the power of the three remaining trustees to appoint a time for holding a special election to fill the vacancies, whether such objections are based upon the want of power to convene as a board, there not being a quorum (a majority of the whole number of vestrymen, viz., five being required to transact business), or upon the informality of the proceedings of the three trustees in calling such election, and requesting the rector to unite with them.

If a majority of the trustees had resigned or died, the minority would be bound to proceed forthwith and call a special election to fill their places, for the law will not tolerate inaction or delay in that respect, which virtually suspend the functions of the corporation and embarrass it and all persons dealing with it. If the trustees, because too few in number, cannot convene as a board nor hold a meeting, then they must unite as individuals to perform the duties devolving upon them. It is “ trustees ” and not as a “ board ” they are to call such an election. "Act of 1813, chap. 60, § 1. It is conceded by the defendant that the relators Fleming and Watson .called upon him personally and requested him to unite with them in signing a resolution appointing a time for holding a special election to fill the existing vacancies, and that he refused, restating certain reasons he had given in the vestry room the evening before at the time appointed for a meeting in a notice from the trustees, which had been previously served upon him. These reasons were: First. That the relators had no legal standing as a vestry. Second. The notice or call for a meeting was not sufficient. Third. That there was not a quorum present. Fourth. That the vestry had not power to call such a special election as was mentioned in the notice or call for a meeting.

Those objections went to the power of the remaining trustees to take any action whatever to fill vacancies, and not to the time appointed for the meeting or for the election, or to any matter of propriety or convenience as to which his wishes should be regarded or his discretion exercised. It was c. refusal which left the trustees no recourse, except a resort to the remedy by mandamus which they have taken. The objection that the relator Shroeder did not make the request of the rector is not good, as he joins as relator in this proceeding.

There remains to be considered but one question: The appointment of a referee to supervise and superintend the election “ and .see that said election is fairly held and conducted in all respects in accordance with the law, with power to administer oaths to and examine persons offering to vote at said election, and to adjourn the said election at any stage of the same to a time to be specified and announced by him if in his discretion such adjournment shall be needful, expedient and just; and that the said rector, if present at the said election, act in all things under the supervision and superintendence of said referee.” Under ordinary circumstances there could be no question that a rector should be left to preside and conduct a special election, but the facts of this case are peculiar, and the court at special term doubtless considered that in •appointing the referee for the purpose aforesaid it was giving the rector, who was likely to be much more embarrassed between the orders of the court and a sense of duty which might interfere with the fullest compliance therewith, a relief which he would greatly appreciate. Certain trustees whom he declared elected at the last election were ousted because of his refusal to receive the votes of certain duly qualified voters, and now, after the verdict of the jury and the judgment of the court that such votes should have been received, he solemnly states under oath in his answer to this application for a mandamus, “ I received only those votes which I conscientiously believed and still believe should have been received, and refused to receive only the votes of those whom I conscientiously believed and still believe were not entitled to vote.”

The power of the court to appoint a referee to take charge of the election is undoubted.. Matter of McGuire, 50 Hun, 203; 19 N. Y. State Rep., 431; Kniskern v. Lutheran Churches, 1 Sandf. Ch., 537, 561. The rector, as presiding and returning officer, has only ministerial duties to perform, and so with. the referee. McCray on Elections, § 229; People v. Supervisors of Wayne, 12 Abb. N. C., 77; People v. Bell, 27 N. Y. State Rep., 39, 490.

The order and mandamus should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    The Press Publishing Co., Resp’t, v. Seward Baker, App’lt.

      New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Publication—Legal notices—Compensation for.
    While it may not be obligatory upon a newspaper to print a summons or legal notice, even though the same be directed by the court to be inserted in its columns, yet, if it do such printing without 9 special agreement, the parties will be deemed to have contracted with reference to § 3317 of the Code, and the compensation will be limited ¿by the rates so fixed.
    Action to recover compensation for publishing summons and notice required by law, service by publication thereof having been directed by the court, and plaintiff’s newspaper, “The World,” being one of the papers designated for the purpose of such publication. Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury in the second district court.

      Samuel L. Cross, for resp’t; Irving Washburne, for app’lt.
   Bischoff, J.

Upon the trial of this action the justice ruled that the plaintiff was not confined to the rates prescribed by § 3317 of the Code of Civil Procedure, and plaintiff was permitted, against defendant’s objections and exceptions, to recover in excess of those rates. This, we think, was error, for which the judgment should be reversed. Plaintiff, having performed the services requested by the defendant, could, in the absence of an express agreement fixing the amount of compensation, at common law only recover what the services were fairly and reasonably worth. Lawson’s Rights, Remedies and Practice, vol. 1, § 245, p. 444, and § 266, p. 465, and cases cited; Booth v. Bierce, 38 N. Y., 463; Konitzky v. Meyer, 49 id., 571.

In respect, however, to the publication of a summons and other papers specified therein § 3217 has ¿abrogated the common law rule, and while it may not have been obligatory upon the plaintiff to publish the summons and notice at all, yet, having done ,so without any promise by defendant to pay any other compensation, both contracting parties must be deemed to have made their, agreement with reference to the law as it existed at the time, and with notice and the knowledge of which they were alike chargeable. ■ Wait’s Actions & Defenses, vol. 2, p. 286, § 8, and authorities cited.

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

Pryor,'J., concurs.


author: Bradley, J.

text:
    Michael Lennon, App’lt, v. Mary T. C. Smith, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 14, 1891.)

    Contract—Owner cannot repudiate building contract and also RECOVER DAMAGES FOR DELAY.
    In an action upon a contract for building a cellar, which contained a provision that the penalty of twenty dollars should be enforced for every day that the work remained unfinished beyond a certain date, the referee found that there was a delay of twenty-seven days, and directed a dismissal of the complaint and judgment for $540 damages in favor of defendant. Held, error; that defendant could not repudiate the contract for the purpose of barring plaintiff’s claim for work and make it effectual for damages for a breach of a covenant therein.
    Appeal from j'udgment entered upon order of the general term of the court of common pleas of the city of Mew York, affirming judgment entered on report of a referee.
    The action was brought to recover for the alleged performance of a contract between the parties, whereby the plaintiff agreed to furnish the labor and materials and build and complete a cellar upon the plaintiff’s premises at the price of thirty-five cents per cubic yard for excavation, and sixteen cents per cubic yard for walls, to be paid upon the order of the architect on completion. And this provision : “ A penalty of twenty dollars to be enforced for each and every day that the work remains unfinished beyond the term’’ mentioned, was contained in the contract.
    The referee found that the plaintiff abandoned the work before completion, and that the cellar was not so completed and ready for the framers to proceed until the expiration of twenty-seven days after the |ime specified for completing the work; and as conclusion of law determined that the twenty dollars per day provided for by the contract were liquidated damages; and directed judgment of dismissal of the complaint and for $540 damages in favor of the defendant.

      F. T. Wood, for app’lt; Frank F. Smith, for resp’t.

       Reversing 16 N. Y. State Rep., 668.

   Bradley, J.

The plaintiff entered upon the performance of the work. And whether or not he substantially performed it depended upon other facts which the referee found against the plaintiff. There were several controverted questions of fact, which it is unnecessary to specifically mention here, since there was evidence to support the facts as found by the referee; and upon them the conclusion was warranted that there was a substantial breach of the contract on the part of the plaintiff available to defeat a recovery by him. Smith v. Brady, 17 N. Y., 173.

But having determined that the defendant was entitled to relief from the obligation of her contract by the breach of it by the plaintiff, and having for that reason wholly relieved her from it accordingly, it is difficult to see how the referee could properly have awarded damages in her favor against the plaintiff for the nonperformance of the contract. She could not repudiate the contract for the purpose of barring the plaintiff’s claim for his work, and at the same time make it effectual for the recovery of damages against him for its breach, although she might, if the facts permitted, recover damages, if any there were, in excess of the price or value of the plaintiff’s work. And the reason is that in such case the contract is permitted to remain operative for the purpose of the remedy and relief of both parties to it, and it is no less essential to support the defendant’s claim for damages than it is to sustain that of the plaintiff founded upon it for his work. It is apparent that a rule having the effect to give one of the parties to a contract the benefit of it to the exclusion of the other in the same action, would or might work great injustice to the latter and quite unreasonably to the profit of the former. Walker v. Millard, 29 N. Y., 375; Woodward v. Fuller, 80 id., 312. In the present case the conclusion was warranted by the evidence that the work performed by the defendant at the contract prices amounted to more than the damages recovered by the defendant. The effect of the recovery directed by the referee was to give the defendant the benefit, such as it was, of all the work performed by the plaintiff and, in addition, the damages awarded to her against him. This was justified by no sound principle of law. The conclusion of law was based upon the fact found that the work which the plaintiff undertook by the contract to do was not substantially performed by him, not that his work was of no value to the defendant.

The view thus taken renders the consideration of any other question unnecessary.

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

All concur.


author: Brown, J.

text:
    William L. Whittemore, Adm’r, App’lt, v. The Judd Linseed & Sperm Oil Co. et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 14, 1891.)

    1. Judgment—Release.
    Tlie'strict common law rule is that if two persons he hound jointly and severally in an obligation, and the obligee voluntarily and unconditionally releases one of them, both are discharged and either may plead the release in bar, but the legal operation of a release of one of two or more joint debtors may be restrained by an express provision in the instrument that it shall not operate as to the other.
    2. Same.
    In an action brought by the defendant company against H. & T. as co-partners, separate judgments were entered against each; and H. & T. having made an assignment, the oil company agreed to accept fifty per cent of the judgment against T. in full satisfaction of its claim against them, and to-release and discharge T. and his individual estate, reserving all rights against H. or the joint estate. The judgment was assigned to L. with a similar reservation. In August, 1874, £. executed to H. a release of the claims of the oil company against H. & T. Subsequently the company assigned to L. their rights and claims against the joint property under the judgment against T. and thereafter issued execution against H. under the judgment against him. In an action to enjoin the collection of such execution and to declare the judgment satisfied and discharged, Held, that as a release is to be construed according to the intent of the parties and the object and purpose of the instrument, in this case its operation must be confined to T., and it in no way tended to release or discharge H.
    Appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment of the special term, which dismissed the plaintiff’s complaint.
    This action was brought to restrain the collection of a judgment recovered against Henry W. Hubbell by the Judd Linseed & Sperm Oil Company, and to have it adjudged that such judgment, so far as it was a claim or demand against Hubbell, was. satisfied and discharged.
    Hubbell died pending the litigation, and the action was continued by his administrator.
    It appeared that Hubbell and one Robert L. Taylor, who jhad been engaged in various joint enterprises, became insolvent in 1867, and made a joint assignment of their joint estate and separate assignments of their individual estates to assignees for the benefit of creditors.
    - The Od Company had a claim against them, upon which Taylor denied any liability, and after making an agreement with the assignees to compromise said claim, so far as Taylor was concerned, for fifty cents upon the dollar, in case it established Taylor’s liability therefor, brought an action thereon against both parties.
    Taylor alone defended, and the action against him was tried and resulted in favor of the Oil Company, whereupon judgment was entered. But one roll was filed. The final statement in the judgment was dual in form, and a separate judgment was entered against Hubbell for $40,950.29, and against Taylor for $43,420.70. The difference in amount represented the difference in costs and interest
    . On August 15, 1872, the Oil Company assigned to the defendant Lord all their claims and demands against Robert L. Taylor individually, and especially all its right, title and interest in and to a certain judgment for $43,420.70 and all its right, title and interest in and to money due and to grow due under the same from said Robert L. Taylor or his individual estate.
    Said assignment further provided as follows: “ It is expressly understood that said Judd Linseed & Sperm Oil Company are to retain and do expressly retain all their claims and rights of every nature against the joint property and estate of said Robert L. Taylor and Henry W. Hubbell, and against the individual property and estate of said Henry W. Hubbell. It being intended hereby to transfer only such claim as they have against the said Robert L. Taylor individually and his individual estate in whatever way the same may be made available for the payment thereof.”
    negotiations followéd for the settlement of the several estates, the object being to release and discharge the assignees and to transfer to Hubbell certain property and claims, particularly a claim against the United States growing out of the destruction of a ship by the Confederate cruiser Alabama, which it was claimed by him had not passed to the assignees. To accomplish this Hubbell professed to have procured and to be able to procure releases of the assignees from all the creditors and consents to their discharge, except from four, among whom was the Oil Company. A tripartite aggreement was entered into between the surviving assignees and Taylor and Hubbell which recited these facts, and the fact that the Oil Company’s claim was to remain ■outstanding.
    In these negotiations Mr. Lord represented Taylor, the assignees and certain creditors. Hubbell was represented by Mr. Peet.
    On August 8, 1874, there was delivered by Mr. Peet two releases ; one dated September 30, 1873, which was an agreement between certain creditors and Hubbell, and which released and ■discharged the assignees from all claims and demands and right of accounting, and provided that nothing therein contained .should impair or affect the claims .of said creditors against Hub-bell individually or prejudice their rights against him personally or any estate of his not then in the hands of the assignees.
    The second release was dated January 3, 1874, and was an •agreement with Hubbell of a like character, and released Taylor from all claims and demands against him, and the assignees from all claims and demands and right of accounting against them, and contained a similar reservation of the releasor’s claims against Hubbell individually and against any estate of his not in the hands of the assignors.
    The Oil Company was a party to each of the foregoing instruments. The defendant Lord also executed and delivered to Hub-bell a release, under seal, from all claims against him ©r his individual estate upon certain demands of which Lord claimed to be the owner, among which the demand of the Oil Company was specified as one. Some question appears to have arisen between Hubbell and Lord as to Lord’s authority to execute this release under the assignment of August 15, 1872, and thereafter Hubbell procured from the Oil Company a further assignment, dated October 6, 1874, whereby said company assigned to Lord “all their claims against the joint property and estate of Robert L. Taylor .and Henry W. Hubbell in the hands of their assignees under the assignment dated October 26, 1867, under and by virtue of a judgment against said Taylor and Hubbell in the court of common pleas, etc., for $43,420.70,” granting to Lord power and authority to ask and demand the same from the assignees and from any person or persons “ excepting as against Hubbell, or any individual estate or joint estate hereafter realized by him,”
    On April 1, 1876, the Oil Company issued an execution upon said judgment, with directions to the sheriff to satisfy the same out of Hubbell’s property, and claiming $25,060.25 and interest to be due thereon.

      William C. DeWitt and Edward B. Smith, for app’lt; Joseph Hi Ohoate, for resp’t, Oil Company; S. P. Nash, for resp’t, Lord.

       Affirming 82 N. Y. State Rep., 816.

   Brown, J.

The appellant claims that Hubbell’s discharge from the was in two :

First, by the release executed by the defendant Lord and delivered to him on August 8, 1874.

Second, by the release of Taylor by the Oil Company by the instrument of January 5, 1874.

The first ground is the one upon which relief was based in the complaint. ' The second is not there mentioned or made the basis-of the judgment asked for.

While I( have grave doubt whether the second claim is available to the appellant under his complaint or whether the question was raised at the trial by any proper and sufficient request to the court thereon, as the facts upon which the claim is now made appear in the findings of the court, the point is considered as if it was properly before us.

The second ground upon which the' discharge is claimed will be considered first. '

The strict common latv rule is that if two persons be bound jointly and severally in an obligation, and the obligee voluntarily and unconditionally releases one of them both are discharged and either may plead the release in bar. *

But the legal operation of a release of one of two or more joint debtors may be restrained by an express provision in the instrument that it shall not operate as to the other. This question was recently considered in this court in the case of Hood v. Hayward, 35 N. Y. State Rep., 229-237; 124 N. Y., 1.. In that case one surety upon a non-resident executor’s bond was released and discharged by the devisees and legatees under the will and the appellant’s contention was that by virtue of that release to his co-surety he also was released. That contention was overruled and it was held that he was not discharged, and the decision rested upon an express provision in the release that it should not be construed as in any way affecting any claim or demand which the releasors had or might have against the non-resident executor or against the appellant as surety on his bond.

In addition to the authorities cited by Judge Potter in support, of that opinion I refer to the following: 1 Parsons on Contracts, 5th ed., p. 29; Kirby v. Taylor, 6 John. Ch., 246; S. C., Hopk., 309-334; Rogers v. Hosack's Ex'rs, 18 Wend., 319; S. C., 25 id., 313; see opinion of Cowen, J.; Solly v. Forbes, 2 Brod, & B., 38; North v. Wakefield, 13 Q. B., 536; Burke v. Noble, 48 Penn. St., 168; Yates v. Donaldson, 5 Md., 389; Edwards v. Varick, 5 Denio, 665-690; Lysaght v. Phillips. 5 Duer, 106-116.

The rule deducible from all the authorities is that equity always gives to a release operation according to the intention of the parties and the justice of the case, and although many early cases may be cited to the effect that the rule applied by courts of law was otherwise, and that a saving clause repugnant to the nature of the grant was void and that the grant remained absolute and unqualified, such is not the modern rule of construction.

The equitable rule now prevails and a release is to be construed according to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation.

Testing the releases in this case by the clear and manifest intention of the parties and the occasion of giving it, its operation will be confined to Taylor and it in no way tended to release or discharge Hubbell.

By the terms of the contract Hubbell was to remain liable, and under all the authorities the release of Taylor operated to discharge him alone. But the two papers appear to have been delivered by Hubbell’s attorney on August 8,1874, and for the purpose of this appeal we must assume their delivery to have been Hubbell’s act.

The purpose of their execution and delivery is shown by the tripartite agreement executed by and between the surviving assignees and Taylor and Hubbell

This agreement looked to the settlement of the several estates and the discharge of the assignees, and to accomplish that object Hubbell professed to have procured or to be able to procure releases to said assignees from all outstanding creditors of the joint estate and from his individual estate except four, one of whom was the Oil Company, and it was therein expressly stated that the four excepted claims were to remain outstanding. Such agreement between them provided that a certain claim against the United States arising out of the destruction of a ship by the Confederate cruiser Alabama was not a part of the joint estate assigned, but belonged to Taylor and Hubbell individually, and other claims with the consent of Taylor were to be assigned to Hubbell to enable him to procure releases from creditors of the joint estate.

Pursuant to this agreement the two releases in question were delivered by Hubbell, and he must be held to be bound by the express stipulation that the Oil Company’s claim was to remain outstanding against him and that so far as the release to Taylor was concerned it expressly limited its operation to Taylor, and was intended to discharge him alone. In other words he must be deemed to have consented to the latter provision.

In Rogers v. Hosack's Ex’rs, 18 Wend., 886, Judge Cowen said, in speaking of the rule that the release of one of two joint debtors operates to discharge both, “ the rule has generally if not universally been applied to cases where such co-debtors were released without the" consent of the other. * * * The release is like the leaving off of the seal from a bond which subverts the whole contract.. * * * But the case is different when the alteration is by the consent of all the parties, accompanied with an intention that those only should be discharged whose names or seals are torn off in the case supposed, or who are released as in the case at bar.”

After discussing the facts of the case before him he reached the conclusion that the debtor who claimed the benefit of the strict rule intended to remain liable, and said: “upon principle there is nothing to prevent such an agreement.”

To the same effect is Beerson v. Kincaid, 3 Penn., 57.

Upon the assumption therefore that the judgment against Taylor and Hubbell was joint, our conclusion is that Hubbell was not discharged by the release of January, 1874.

But the conclusive fact in this connection is that no joint judgment ever was entered against Taylor and Hubbell. The whole of the appellant’s argument is built upon the assumption that such a judgment existed, and his effort has been to convince us that, although the judgment was not joint in form, yet it must and should be so treated by the court on this appeal.

Having exhausted, all the remedies possible in an ineffective effort to correct the judgment and make it joint, he asks this court to so regard it for the purposes of enabling him to invoke the aid of a harsh and technical rule of law to discharge him from an obligation towards the payment of which it does not appear that he has ever contributed a cent To do so would manifestly subvert and overthrow the intention of the parties in their various complicated dealings had in the settlement of the several estates. They had a right to contract upon the faith of the record as it stood, and it is not unreasonable to assume that, if the judgment had been joint in form, the result sought would have been reached in another way, and the case not embarrassed with the questions that have arisen upon the several assignments and releases that have been executed.

- The fact that is prominent all through the negotiations is that the Oil Company never intended to release its claim against Hub-bell, and Hubbell was well aware of that fact.

The other ground for .the judgment sought rests wholly upon the question whether Mr Lord had authority to execute and deliver the release given to Hubbell.

The trial court found that such instrument was executed without any power or authority, and as to the Oil Company’s claim was wholly inoperative and void.

It may be conceded that the assignment of October 6, 1874, was intended to relate back to and have effect as of a date prior to the execution of the release.

By the terms of the instrument of Augustj 1872, the Oil Company assigned only its claim against Taylor individually and against his individual estate in the hands of the assignee.

By the instrument of October, 1874, it assigned its claim against the joint property of Taylor and Hubbell. In both it expressly reserved its claim against Hubbell individually. This was in entire harmony with the tripartite agreement which recited the fact that the assignees had never realized anything from Hubbell’s individual estate and which contemplated the discharge of the assignees by the creditors, but that the oil company should retain its claim against Hubbell.

The legal conclusion which the appellant asked the court to draw from the two assignments was that they were ineffectual to divide the. claim and carried to the assignee the right to collect the whole judgment That is, that although the assignor intended to sell and the assignee to buy but a part or share of the claim, and clearly expressed such intent in the deed of assignment, the law gives to the instrument an entirely different effect and transfers what neither intended should pass by it

I know of no principle of law that works such a result, and no authority is cited to sustain it The authorities that are cited hold simply that a creditor cannot split up a single cause of action without the consent of the debtor. The reason for this rule is that to permit a cause of action to be divided would subject the debtor to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract and to decline any assignment by which it may be broken into fragments. Mandeville v. Welch, 5 Wheat, 277. But the rule goes only to the right to sue as assignee of a part of a single cause of action. It does not deny the right to sell and transfer an undivided part of a demand. And if all the owners unite in a suit upon it, the fact of the assignment of a part constitutes no defense.

We need not consider in this case what title or authority Mr. Lord acquired under the assignment to him, or what would have been the effect on the claim if Taylor or the assignee had paid it in full to Lord. Ho such question arises. The only pertinent inquiry is, did Lord under the assignment of the demand against Taylor acquire power to release Hubbell. That inquiry was properly answered at the trial, and there was no error in the refusal to find the request I have quoted. If the assignment was ineffectual to divide the claim, the title remained in the Oil Company. But as the judgments were several and not joint, and no question of payment by either debtor arises, it is not perceived why the judgment against Taylor could not be separately assigned. Ho one was prejudiced by such a transaction, and the rights of the debtors between themselves remain unimpaired and unaffected.

The claim that Mr. Lord incurred some liability to Hubbell in case the release was ineffectual to discharge him, is not available on this appeal. Ho motion was made to amend the complaint except in respect to the demand for judgment. The claim against Lord could not stand upon the allegation of the complaint and the court properly denied the motion to amend.

The judgment should be affirmed.

Judgment affirmed, with costs.

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


author: Parker, J.

text:
    Louisa W. Hamer, App’lt, v. Franklin Sidway, Ex’r, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 14, 1891.)

    Contract—Promise to make gift of money—Consideration.
    Defendant’s testator promised his nephew, then ten years old, that if he would refrain from drinking, using tobacco, swearing and playing cards or billiards.for money until he became twenty-one, that he would pay him $6,000. The nephew, having fully performed on his part, wrote his uncle, and in return the uncle wrote him a letter that he should have the money certain; that it was in the bank for him the day he was of age; but he (the uncle) would not interfere with it until the nephew was capable of taking care of it, and that he could consider it on interest, etc. The nephew consented that the money should remain in the bank, and the uncle died-without having paid it over to him. Feld, that there was a good consideration for the agreement, that the uncle held the money as a trustee and the nephew could recover it from his estate.
    Appeal from an order of the general term of the supreme court in the fourth judicial department, reversing a judgment entered on the decision of the court at special term in the county clerk’s office of Chemung county on the 1st day of October, 1889.
    The plaintiff presented a claim to the executor of William E. Story, Sr., for $5,000 and interest from the 6th day of February, 1875. She acquired it through several mesne assignments from William E. Story, 2d. The claim being rejected by the executor, this action was brought. It appears that William E. Story, Sr., was the uncle of William E. Story, 2d; that at the celebration of the golden wedding of Samuel Story and wife, father and mother of William E. Story, Sr., on the 20th day of March, 1869, in the presence of the family and invited guests, he promised his nephew that if he would refrain from drinking, using tobacco, swearing and playing cards or billiards for money until he became twenty-one years of age, he would pay him a sum of $5,000. The nephew assented thereto and fully performed the conditions inducing the promise. When the nephew arrived at the age of twenty-one years, and on the 31st day of January, 1875, he wrote to his uncle "informing him that he had performed his part of the agreement and had thereby become entitled to the sum of $5,000. The uncle received the letter and a few days later, and on the 6th dav of February, he wrote and mailed to his nephew the following letter:
    “ Buffalo, February 6, 1875
    “ W. F. Story, Jr.:
    “ Dear Nephew—Your letter of the 31st hit. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have $5,000 as I promised you. I had the money in the bank the day you was twenty-one years old that I intend for you, and you shall have the money certain. Now, Willie, I do not intend to interfere with this money in any way till I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. The first $5,000 that I got together cost me a heap of hard work. You would hardly believe me when I tell you that to obtain this I shoved a jack-plane many a day, butchered three or four years, then came to this city, and after three months’ perseverance I obtained a situation in a grocery store. I opened this store early, closed late, slept in the fourth story of the building in a room 80 by 40 feet and not a human being in the building but myself. All this I done to live as cheap as I 'could to save something. I don’t want you to take up with this kind of fare; I was here in the cholera season of ’49 and ’52, and the deaths averaged 80 to 125 daily, and plenty of small pox; I wanted to go home, but Mr. Fisk, the gentleman I was working for, told me if I left them, after it got healthy he probably would not want me; I stayed; all the money I have saved I know just how I got it; it did not come to me in any mysterious way, and the reason I speak of this is that money got in this way stops longer with a fellow that gets it with hard knocks than it does when he finds it. Willie, you are twenty-one, and you have many a thing to learn yet. This money you have earned much easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money; hope you will make good use of it; I was ten long years getting this together after I was your age; now, hoping this will be satisfactory, I stop ; one thing more; twenty-one years ago I bought you fifteen sheep; these sheep were put out to double every four years; I kept track of them the first eight years; I have not heard much about them since; your father and grandfather promised me that they would look after them till you were of age ; have they done so ? I hope they have; by this time you have between five and six hundred sheep, worth a nice little income this spring; Willie, I have said much more than I expected to; hope you can make out what I have written; to-day is the seventeenth day that I have not been out of my room, and have had the doctor as many days; am a little better to-day; think I will get out next week; you need not mention to father, as he always worries about small matters.
    “ Truly yours,
    “W. E. Story.”
    “ P. S.—You can consider this money on interest.”
    The nephew received the letter and thereafter consented that the money should remain with his uncle in accordance with the terms and conditions of the letter. The uncle died on the 29th day of January, 1887, without having paid over to his nephew any portion of the said $5,000 and interest.

      H. J. Swift, for app’lt; Adelbert Moot, for resp’t.

       Reversing 33 N. Y. State Rep., 521.

   Parker, J.

The question which provolm-Cl the most ascussion by counsel on this appeal, and which lies-' at the foundaion of plaintiff’s asserted right of recovery, is whether by virtue ofacontract defendant’s testator, William E. Story, became indebted to his nephew, William E. Story,' 2d, on his twenty-first birthday in the sum of $5,000. The trial court found as a fact that “ on the 20th dayxof March, 1869, * ’* * William E. Story agreed to and with William E. Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until he should become twenty-one years of age, then he, the said William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,000 for such refraining, to which the said William E. Story, 2d, agreed,” and that he “in all things fully performed his part of said agreement.”

The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee by refraining from the use of liquor and tobacco was not harmed, but benefited; that that which he did was best for him to do independently of his uncle’s promise, and ‘insists that it follows that unless the promisor was benefited, the contract was without consideration. A contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no consideration to support the enforcement of the promisor’s agreement. Such a rule could not be tolerated, and is without foundation in the law. The Exchequer Chamber in 1875 defined consideration as follows: “ A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Courts “ will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne or suffered, by the party to whom the promise is made as consideration for the promise made to him.” Anson’s Prin. of Con., 63.

“ In general a waiver of any legal right at the request of another party is a sufficient consideration for a promise. ” 1 Parsons on Contracts, 444.

“ Any damage, or suspension, or forbearance of a right will be sufficient to sustain a promise.” Kent, vol. 2, 465, 12th ed. '

Pollock, in his work on Contracts, page 166, after citing the definition given by the Exchequer Chamber already quoted, says: “ The second branch of this judicial description is really the most important one. Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future ás an inducement for the promise of the first.”

¡Now applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and be had a legal right to do so. That right he -abandoned for a period of years upon the strength of the promis 3 of the testator that for such forbearance he would give him $5,000. We need not speculate on the effort wliich may have been required to give up the use of those stimu-

lants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle’s agreement, and now having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it, but were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been, support the position we have taken. In Shadwell v. Shadwell, 9 C. B. N. S., 159, an uncle wrote to his nephew as follows: “ My dear Lancey : I am so glad to hear of your intended marriage with Ellen JSTicholl, and as I promised to assist you at starting, I am happy to tell you that I will pay you 150 pounds yearly during my life, and until your annual income derived from your profession of a chancery barrister shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require. Your affectionate uncle, Charles Shadwell.” It was held that the promise was binding and made upon good consideration.

In Lakota v. Newton, an unreported case in the superior court of Worcester, Mass., the complaint averred defendant’s promise that “ if you (meaning the plaintiff) will leave off drinking for a year, I will give you $100; plaintiff’s assent thereto; performance of the condition by him, and demanded judgment therefor. Defendant demurred on the ground, among others, that the plaintiff’s declaration did not allege a valid • and sufficient consideration for the agreement of the defendant. The demurrer was overruled.

In Talbott v. Stemmons, a Kentucky case not yet reported, the step-grand mother of the plaintiff made with him the following agreement: “I do promise and bind myself to give my grandson Albert R. Talbott $500 at my death if he will never take another chew of tobacco or smoke another cigar during my life from this date up to my death, and if he breaks this pledge he is to refund double the amount to his mother.” The executor of Mrs. Stemmons demurred to the compláint on the ground that the agreement was not based on a sufficient consideration. The demurrer was sustained and an appeal taken therefrom to the court of appeals, where the decision of the court below was reversed. In the opinion of the court it is said that “ The right to use and enjoy the use of tobacco was a right that belonged to the plaintiff and not forbidden by law. The abandonment of its use may have saved him money or contributed to his health; nevertheless, the surrender of that right caused the promise, and having the right to contract with reference to the subject matter, the abandonment of the use was a sufficient consideration to uphold the promise.” Abstinence from the use of intoxicating liquors was held to furnish a good consideration-for a promissory note in Lindell v. Rokes, 60 Mo., 249.

The cases cited by the defendant on this question are not in point. In Mallory v. Gillett, 21 N. Y., 412; Belknap v. Bender, 75 id., 446, and Berry v. Brown, 107 id., 659; 12 N. Y. State Rep., 15, the promise was in contravention of that provision of the statute of frauds Vhich declares void all promises to answer for the debts of third persons unless reduced to writing. In Beaumont v. Reeve, Shirley’s L. C., 7, and Porterfield v. Butler, 47 Miss., 165, the question whs, whether a moral obligation furnishes sufficient consideration to uphold a subsequent express promise. In Duvoll v. Wilson, 9 Barb., 487, and Wilbur v. Warren, 104 N. Y., 192; 5 N. Y. State Rep., 602, the proposition involved was, whether an executory covenant against incumbrances in a deed given in consideration of natural love and affection could be enforced. In Vanderbilt v. Schreyer, 91 N. Y., 392, the plaintiff contracted with defendant to build a house, agreeing to accept in part payment therefor a specific bond and mortgage. Afterwards he refused to finish his contract unless the defendant would guarantee its payment, which was done. It was held that the guarantee could not be enforced for want of consideration. For, in building the house, the plaintiff only did that which he had contracted to do.

And in Robinson v. Jewett, 116 N. Y., 40; 26 N. Y. State Rep., 387, the court simply held that “ The performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a new contract.” It will be observed that the agreement which we have been considering was within the condemnation of the statute of frauds, because "not to be performed within a year, and not in writing. But this defense the promisor could waive, and his letter and oral statements subsequent to the daté of final performance on the part of the promisee must be held to amount to a waiver. Were it otherwise, the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and therefore such defense could not be made available unless set up in the answer. Porter v. Wormser, 94 N. Y., 431, 450. ■ This was not done.

In further consideration of the questions presented, then, it must be deemed established for the purposes of this appeal that on the 31st day of January, 1875, defendant’s testator was indebted to William E. Story, 2d, in the sum of $5,000, and if this action were founded on that contract it would be barred by the statute of limitations, which had been pleaded, but on that date the nephew wrote to his uncle as follows:

“Dear Uncle—I am 21 years old to-day and I am now my own boss, and I believe, according to agreement, that there is due me $5,000. I have lived up to the contract to the letter in every sense of the word.”

A few days latter and on February 6th, the uncle replied, and so far as it is material to this controversy the reply is as follows:

“ Dear FTephew—Your letter of the 31st ult., came to hand all right saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have $5,000 as D promised you. I had the money in the bank the day you was 21 years old that I intend for you and you
shall have the money certain. How, Willie, I don’t intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right and lose this money in one year. *■ * * This money you have earned much easier . than I did, besides acquiring good habits at the same time and you are quite welcome to the money. Hope you will make good use of it. * * *
“W. E. Story.
“ P. S.—You can consider this money on interest.”

The trial court found as a fact that “ said letter was received by said William E. Story, 2d, who thereafter consented that said money should remain with the said William E. Story in accordance with the terms and conditions of said letter. And further, ■“ that afterwards, on the 1st day'of March, 1877, with the knowledge and consent of his said uncle, he duly sold, transferred and assigned all his right, title and interest in and to said sum of $5,000 to his wife, Libbie H. Story, who thereafter duly sold, transferred and assigned the same to the plaintiff in this action.”

We must now consider the effect of the letter and the nephew's assent thereto. Were the relations of the parties thereafter that of debtor and creditor simply, or that of trustee and cestui que trust? If the former, then this action is not maintainable, because barred by lapse of time. If the latter, the result must be otherwise. Ho particular expressions are necessary to create a trust. Any language clearly showing the settlor’s intention is sufficient if the property and disposition of it are definitely stated. Lewin on Trusts, 55.

A person in the legal possession of money or property acknowledging a trust, with the assent of the cestui que trust, becomes from that time a trustee if the acknowledgment be founded on a valuable consideration. His antecedent relation to the subject, whatever it may have been, no longer controls. 2 Story’s Eq., § 972. If before a declaration of trust a party be a mere debtor, a subsequent agreement recognizing the fund as already in his hands, and stipulating for its investment on the creditor’s account, will have the effect to create a trust. Day v. Roth, 18 N. Y., 448.

It is essential that the letter interpreted in the light of surrounding circumstances must show an intention on the part of the uncle to become a trustee before he will be held to have become such; but in an effort to ascertain the construction which should be given to it, we are also to observe the rule that the language of the promisor is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. White v. Hoyt, 73 N. Y., 505, 511.

At the time the uncle wrote the letter he was indebted to his nephew in the sum of $5,000, and payment had been requested. The uncle, recognizing the indebtedness, wrote the nephew that he would keep the money until he deemed him capable of taking care of it. He did not say, “ I will pay you at some other time,” or use language that would indicate that the relation of debtor .and creditor would continue. On the contrary, his language indicated that he had set apart the money the nephew had “ earned ” for him so that when he should be capable of taking care of it he should receive it, with interest He said: “ I had the money in the bank the day you were twenty-one years old that I intended for you and you shall have the money certain.” That he had set apart the money is further evidenced by the next sentence : “Now Willie, I don’t intend to interfere with this money in any way until I think you are capable of taking care of it.” Certainly the uncle must have intended that his nephew should understand that the promise not “ to interfere with this money ” referred to the' money in the bank which he declared was not only there when the nephew became twenty-one years old, but was intended for him. True, he did not use the word “ trust,” or state that the money was deposited in the name of William E. Story, 2d, or in his own name in trust for him, but the language used must have been intended to assure tl^e nephew that his money had been set apart for him, to be kept without interference until he should be capable of taking care of it, for the uncle said in substance and in effect: “ This money you have earned much easier than I did * * * you are quite welcome to. I had it in the bank the day you were twenty-one years old and don’t intend to interfere with it in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me.” In this declaration there is not lacking a single element necessary for the creation of a valid trust, and to that declaration the nephew assented.

The learned judge who wrote the opinion of the general term seems to have taken the view that the trust was executed during the lifetime of defendant’s testator by payment to the nephew, but as it does not appear from the order that the judgment was reversed on the facts, we must assume the facts to be as found by the trial court, and those facts support its judgment.

The order appealed from should be reversed and the judgment of the special term affirmed, with costs payable out of the estate.

All concur.


text:
    John J. P. Read, Resp’t, v. The Bank of Attica, App’lt.

      (Court of Appeals, Second Division,

      Filed April 14, 1891.)

    1. Evidence—Variation of written contract by parol—Banks—Certificate of DEPOSIT.
    The terms of a certificate of deposit cannot be varied by an oral agreement to pay interest made by an officer of the bank at the time.of its delivery to the depositor.
    3. Same.
    Had the depositor after receiving the certificate made a demand for payment, and the bank in order to secure the use of the money for a longer time promised to pay interest thereon, such an agreement could have been proven and enforced.

      Appeal from judgment of the general term of the supreme court, in the fifth judicial department, entered on an order affirming a judgment of the court at circuit.

      Marshall, Clinton & Wilson, for app’lt; 0. 0. Cottle, for resp’t.

       Reversing 38 N. Y. State Rep., 650.

   Parker, J.

We agree with the court below in all respects save one. The admission of parol testimony tending to show an agreement by the defendant to pay interest was error, because its purpose was to vary the terms of the certificate of deposit, which was as follows:

“ $4,152.64 Bank of Attica, State of New York, )
Buffalo, March 25, 1879. j
“ J. J. P. Read has deposited in this bank forty-one hundred and fifty-two 64-100 dollars, payable to the order of J. J. P. Read on return of this certificate.
“W. K Allen, Cashier. J. W. Smith, Teller."

Had the plaintiff after receiving the certificate made a demand for payment, and the defendants in order to secure the use of the money for a longer period had promised to pay interest thereon, the plaintiff consenting, it is not questioned but such agreement could have been proven and enforced. But we do not understand the record before us to present such a situation.

On the contrary, the "writing and the alleged oral agreement appear to have constituted one transaction. The testimony on that subject is as follows: The plaintiff testified that after the certificate had been handed to him by Allen (the cashier) he had a conversation as to the bank paying interest on the deposit. Allen told him the deposit would bear three per cent interest if left for any length of time. Defendant’s cashier testified on direct examination that after the certificate of deposit was made out and delivered he had some conversation with plaintiff in regard to the interest; the understanding was that the certificate should bear interest at three per cent. On cross-examination he was asked : “ Are you in the habit of making a private arrangement that certificates should bear interest and not note it in the certificate?” He answered: “No, sir; my intention was to have written in there the rate of interest that we agreed to allow him. The conversation was this; when I handed him the certificate he says, You are to allow me interest on this are you? I said, You are a man pretty flush in money and you ought not to ask interest of us. Well, he says, I can’t afford to leave it without something. Well, I said, will three per cent do you ? Yes. Then a customer came and spoke to me and drew my attention away and Mr. Read walked out. This conversation occurred at the time I handed the certificate to him.”

What was said then respecting the payment of interest occurred at the moment of delivering the certificate. And the terms of commercial paper cannot be varied by oral agreements forming part of the same transaction. Without that evidence the plaintiff could not have recovered interest.

The judgment should be reversed and a new trial granted with costs to abide the event unless the plaintiff within thirty days stipulates to modify the judgment by deducting the interest recovered amounting to $1,345.54, in which event the judgment as. so modified is affirmed, with costs of this court to the appellant.

All concur.


author: Vann, J.

text:
    Julius Kayser, App’lt, v. Anna M. Arnold et al., Resp'ts.

      (Court of Appeals, Second Division,

      Filed April 14, 1891.)

    Specific performance—Not decreed where terms - of contract uncertain.
    Equity will not enforce specific performance of an oral agreement to sign an instrument not wholly written out where the written portion required re-writing in order to conform to the wishes of the parties, and important blanks had been left, in reference to -which no understanding-existed.
    Appeal from a judgment of the general term of the supreme-court, in the first judicial department, affirming a judgment entered upon the decision of the court at special term.
    Action to compel a specific performance of an oral agreement, to execute a written instrument granting to the plaintiff a license to use certain patents and inventions for the manufacture of gloves and mitts.
    In 1884 the plaintiff, a glove manufacturer, wishing to procure machinery that would automatically join and sew the seams of gloves and mitts, applied to the defendant Satterlee Arnold to-adapt to that purpose certain machines invented by him for seaming shirts and drawers.
    The inventions of Mr. Arnold had been patented, but the letters patent were at this time owned by his wife, Anna M. Arnold. At the suggestion of the plaintiff, Mr. Arnold, acting as agent for his wife, began to experiment, with the understanding that if he succeeded to the satisfaction of the plaintiff, the latter should acquire the exclusive right to use the improved machines, for the purpose aforesaid, upon terms to he thereafter adjusted. In April, 1885, when it was supposed ' that a machine had been made that would answer the purpose, a written instrument was prepared embodying the conditions agreed upon during previous negotiations and providing for a permanent arrangement between the parties. According to this proposed agreement, the plaintiff was to have the exclusive right to the letters patent already granted and to such ag should be thereafter granted to either Arnold or his wife “ for the purpose of making fabric gloves and mitts * * * having cut edges and of a weight not to exceed-per yard,” and in consideration thereof the plaintiff was to pay to said Anna M. Arnold a royalty of ten cents per dozen on gloves and two and one-half cents on mitts. Mrs. Arnold was also to furnish for the use of the plaintiff on or before January 6, 1886, 100 machines and attachments and as many more after that date as he should from time to time require, but they were to remain her property and were to be used only for the purpose aforesaid. The plaintiff was to deposit with her the sum of $10,000, “ in four payments of $2,500 each,” at specified times, “as security, without interest, * * * for said, machines and to ensure due performance ” of the agreement. The instrument embraced many details relating to the points already mentioned and concluded with an express covenant that it should continue until “ the -day of -, 1902.” It was verbally agreed that it should be signed whenever the plaintiff should express his satisfaction with the machine. In June, 1885, upon the statement of Mr. Arnold that he needed money to complete the machines, the plaintiff advanced $2,500 to Mrs. Arnold and received from her a receipt therefor stating that said sum was received by her “with the understanding and agreement that the said twenty-five hundred dollars is for the first payment mentioned in an unsigned agreement, submitted by Anna M. Arnold to said Julius Kayser, which is to be fulfilled between the parties when the said Anna M. Arnold has furnished five to ten sewing machines satisfactory to said Julius Kayser and gloves satisfactory to said Julius Kayser have been made thereon. In case,” as the receipt further stated, “the said machines should not prove to satisfaction of said Julius Kayser, or in case the unsigned agreement referred to above should not for any reason be consummated between the parties, the said twenty-five hundred dollars, shall be returned by me to said Julius Kayser January 25, 1886, with interest.”
    Mr. Arnold continued his efforts to perfect the machine until March 22, 1886, when the plaintiff expressed himself as satisfied therewith, and it was agreed that the parties should meet on the 31st and sign the agreement. On the 24th, however, it was ascertained that the attachment for closing the ends of the fingers of the gloves was a failure, and that that part of the work would have to be done in the old way, but at an increased cost. Thereupon it was agreed between the plaintiff and Mr. Arnold that in view of the extra expense the royalties should be reduced, and that a clause should be inserted in the written agreement to that effect. They also agreed that it should be further modified so that the plaintiff, instead of taking one hundred machines and depositing $100 for each, should take only forty, but should deposit. $150 for each, although if he finally took tbe other sixty, the deposit should be averaged at $100 for each machine. These changes were never, in fact, inserted in the written instrument. It was still understood that the parties should sign the agreement on the 31st, but when that day came Arnold and his wife failed to appear, and soon after notified the plaintiff that they had parted with their rights to other parties, and asked him to make out his bill for what they owed him. On the 2d of April, 1886, the firm of “A Gr. Jennings & Son,” without notice, so far as was alleged or proved, acquired by written assignment from Arnold and wife all the rights under said patents and inventions that the plaintiff had endeavored to obtain.
    Upon the trial at special term these facts, among others, appeared and the court dismissed the complaint upon the ground that the plaintiff “ saw fit to make his agreement dependent on the signing of the agreement and as it was not signed, and as, in fact, no distinct terms were reached," he was without remedy in this action. The affirmance by the general term was upon the ground that the blank left in the unsigned instrument in relation to the weight of the gloves and mitts was not filled up.

      A. J. Lillenhoefer, for app'lt; Frank F. Blackwell, for resp’ts Arnold; Sanford H. Slade, for resp’ts Jennings.

       Affirming 16 N. Y. State Rep., 105.

   Vann, J.

The plaintiff contends that it was the intention of the parties that the unsigned instrument should be considered simply as a memorial of terms already agreed upon, and not as the contract by which alone they were to be bound. This position finds some support in the early negotiations between the parties as well as in the first sentence of the receipt given by Mrs. Arnold, through the agency of her husband, for the sum advanced, as it provides that such money “is for the first payment mentioned in (the) unsigned agreement * * * which is to be fulfilled ” when the plaintiff is satisfied. Standing by itself, this would indicate that the instrument was to be “fulfilled” in the sense of performed, or carried into effect, upon the happening of the contingency named. The remainder of the receipt, however, shows, as we think, that the parties intended to leave the matter open and neither to make a binding agreement then nor to treat anything said or done in the past as yet binding. This follows from the requirement to return the money on a day named in case the machines should not be satisfactory to the plaintiff, or if the unsigned agreement should not, for any reason, Be consummated. This language overthrows the theory that any agreement, upon which the minds of the parties had finally met, was then in existence, for it assumes that neither party is yet bound to do anything except with reference to a return of the money advanced. All prior negotiations are presumed to be embraced in this receipt, which is a contract and is the only one relating to the subject that was ever signed by any of the parties. Renard v. Sampson, 12 N. Y., 561; Long v. N. Y. Central R. R. Co., 50 id., 76.

Nearly a year after the date of the receipt two of the parties, without the assent of the third, so far as appears, agreed to modify the proposed agreement in two material respects, and that all three should sign it, as amended, on a day named. The modification was not reduced to writing and the instrument, even at the time of the trial, was not completed or ready for the signatures of the parties. Taking the view most favorable to the plaintiff, this was simply an oral agreement to sign an instrument not yet in existence, because it had not been wholly written out. Even the written portion required rewriting in part in order to conform to the wishes of the parties.

It was virtually an oral agreement to prepare and sign a written agreement, not as evidence of an existing contract, but as an original contract. Whether specific performance of an oral agreement to execute a written instrument, in the nature of a license for sixteen years under letters patent, can be compelled by a court of equity, when such instrument is complete in all respects and in readiness to be signed, we shall not now consider, because that question is not presented by the record before us. Hot only was fhe writing in question incomplete, because it did not contain all that the parties had agreed should be inserted, but there were important blanks in the writing, with reference to which no agreement or understanding existed, and it had never been determined how they should be filled. The blanks existed not only in the paper, but also in the minds of the parties, which had never met upon the subject. Ho general right purported to be granted to the plaintiff, but only a special, though exclusive, fight of user, dependent wholly upon the weight of the fabric per yard, yet the blank for this vital particular was left unfilled. There was no agreement, verbal or written, express or implied, as to what that blank should contain. There was no evidence from which the court, even if it were otherwise practicable, could have filled the blank. Every right of the plaintiff rested upon this unadjusted matter, which was left blank in both places where it occurred in the proposed agreement. Careful provision was made for a forfeiture of his right if the plaintiff used the machines in violation of the license, limited to an undetermined weight per yard of the material manufactured into gloves. The learned counsel for the plaintiff contends that the instrument, if signed, would be so construed as to mean a reasonable weight per yard,” but the parties did not agree to this, and, if they had, there is no evidence to enable the court to determine what a reasonable weight would be. Ho standard of comparison is disclosed. Far from- agreeing upon that point, the parties did not even discuss it.

The proposed agreement was blank, also, as to its duration, to the'extent at least of an entire year, a consideration of some importance when it is borne in mind that the amount of the royalties was guaranteed by the plaintiff to be not less than $6,000 a year.

We agree with the learned general term in saying “it is impossible to deduce from this unsigned instrument the terms of a contract sufficiently clear and definite to enable a court to enforce the specific performance- thereof.” We do not think that the parties should be compelled to sign a writing so incomplete and indefinite as to be incapable of enforcement when signed.

The judgment should be affirmed, with costs to the defendants Jennings, but without costs to the defendants Arnold.

All concur.


text:
    Daniel E. Hayden, App’lt, v. The Bank of Syracuse and the Syracuse National Bank, Resp’ts.

      (Supreme Court, General Term,, Fourth Department,

      Filed February 20, 1891.)

    1. BfNKS—Officers—Service.
    The cashier or other officer of a banking association is simply its agent, and if continued down to the time of expiration of the corporate existence of the principal, upon the happening of that event such agency terminates and he is no longer a representative of the defunct concern.
    2. Same.
    The defendant bank of Syracuse was changed into the Syracuse National Bank in 1865. The summons in this case was served upon B., who was cashier" in both institutions. Held, that the existence of the original .carpo-, ration ceased at that time except that it was continued a body corporate, for three years to close its business; that the National Bank died on the expiration of the time for which it was chartered, twenty years, and that B. was not in any sense the cashier of defendants, nor did he hold any office in either, and that as neither had a legal existence, no action could be maintained against it.
    Appeal from order of special term, granting motion to set aside the service of the summons and complaint herein upon Orrin Ballard, upon the ground that each corporation (the defendants) have ceased to exist, and that Orrin Ballard was not an officer in either at the time the service was made.
    The following is the opinion at special term:
    Kennedy, J.—The defendant, the Bank of Syracuse, was in 1865, and had been for many years previous thereto, a state institution, chartered and organized under and in pursuance of the laws of New York. On the 24th day of June, 1865, upon proper legal application made by in, the said Bank of Syracuse was legally changed into The Syracuse National Bank, under and in pursuance of chap. 97 of the Laws of 1865, and the several acts of Congress relating thereto ; and the comptroller of thé currency of the United States issued to it the proper certificate, and it was thereupon duly changed from a state bank to an association for carrying on the business of banking under the laws of congress.
    This action, on the part of the bank of Syracuse operated as a surrender of its charter, and its existence as a corporation ceased, except that it was continued a body corporate for three years thereafter for the purpose of closing its business. 8th ed., R. S., 1551, § 168.
    The Bank of Syracuse having ceased to exist as a corporation for any purpose many years prior to the service of the summons and complaint herein on Orrin Ballard, such service did not operate as a revival of the institution, nor was Ballard an officer of it at that time.
    So far as the Bank of Syracuse is concerned, therefore, the service of the summons and complaint on Ballard is set aside. Claflin v. Farmers & Citizens’ Bank, 54 Barb., 228.
    ■ About the 24th day of June, 1865, the said Syracuse National Bank was organized as a national association, the said Bank of Syracuse being then changed into it, pursuant to the provisions of cbap. 97 of the Laws of 1865, before cited, and continued to do a banking business down to about the 24th day of October, 1875, when, by proper legal action taken, it went into voluntary liquidation, and took the requisite steps to redeem its circulation, dispose of its property, pay its debts, and generally to close its business. It then ceased to do business and has done none "since.
    This action on its part did not effect its dissolution or terminate its corporate existence. I think it could have been sued after that and a judgment obtained at any time during its charter life. National Bank v. Insurance Co., 104 U. S., 54.
    The defendant, the Syracuse National Bank, derived its corporate existence under the laws of Congress, pursuant to the provision of chap. 1 of title 62 of the United States Statutes, and such corporate existence was limited to twenty years from the time of its charter. Section 5136, subd. 2.
    It was chartered and its corporate life commenced on the 24th day of June, 1865, and expired by limitation on the 24th day of June, 1885 ; and it then by operation of law ceased to exist as a corporation.
    The documentary evidence necessary to establish the foregoing facts is not before me, but they are regarded as admitted by the complaint and other papers in the case.
    Begarding a corporation as a person, as we must, the Syracuse National Bank died on the expiration of the time for which it was chartered, and could no more be sued or a judgment obtained against it than against a deceased individual McCulloch v. Norwood, 58 N. Y., 562; Sturges, as Admr, v. Vanderbilt, Impl'd, 73 id., 384.
    The cashier or other officer of a banking association is simply its agent, and if continued down to the time of expiration of the corporate existence of the principal, upon the happening of that event such agency terminates and they are no longer representatives of the defunct concern.
    If right in the foregoing conclusions, Orrin Ballard, upon whom the service of the summons and complaint was made, was not in any sense cashier of the defendants, nor did he hold any other official position in either; and as neither had legal existence at that time no action could be commenced or judgment obtained against it in its corporate character.
    The case of the National Bank v. The Insurance Gompany, supra, referred to by the plaintiff's counsel, asserts no principle adverse to the above position. That was a case where the corporation went into voluntary liquidation during the continuance of its chartered life. This, did not operate to dissolve it or terminate its corporate existence, that continuing it may sue and be sued ; but upon its termination no action can be maintained against it unless by some express provision of law. My attention has not been called to any applicable to the case in hand.
    It follows that the motion as to both defendants should be granted.
    Motion granted, with ten dollars costs to defendants.

      T. K. Fuller, for app’lt; G. E. Lewis, for resp’ts.
   Order affirmed, with ten dollars costs and disbursements, on the opinion of Kennedy, J., delivered at special term.

Hardin, P. J., Martin and Merwin, JJ., concur.