text:
    DANIEL A. McCOOL, Respondent, v. CONRAD BOLLER, Appellant.

      Order of publication of summons —requisites of — Code of Civil Procedure, § 440.
    An order for publication of a summons, after reciting- that it appeared from the affidavits that the party to be served vas a necessary party defendant, that he could not after due diligence be found within the State, but had departed therefrom, and that his present place of residence could not, after such diligence used, be ascertained, directed that the summons be served upon him by publication thereof in two papers therein specified, once in each week for six successive weeks, and by mailing copies of said summons and complaint, properly inclosed in a sealed wrapper, addressed to said defendant at his last place of residence, West Eighty-third street, near Eighth avenue, in New York, said publication and mailing to be commenced within three months from the date. Held, that the order was void, because (1) it did not require a copy of the ordei’, as well as of the summons and complaint, to be served ; (2) because it did not specify the post office in which they were to be deposited; (3) becau.se it did not require them to be mailed on or before the day of the first publication.
    Appeal from an order denying defendant’s motion to vacate an order of publication.

      Albert S. Cruik,shank, for the appellant.

      It. Gugenheimer, for the respondent.
   Brady, J.:

The order of publication is as follows: Upon reading and filing the annexed affidavits of Randolph Gugenheimer, Samuel Untemeyer and Morris Steinort, and upon the complaint duly filed in the office of the clerk of this court, a copy whereof is hereto annexed; and, it appearing to my satisfaction thereby, that Conrad Boiler is a necessary party defendant to this action, and cannot, after due diligence, be found within this State, but has departed therefrom, and that his present place of residence cannot, after such diligence used, be ascertained: Now, on motion of Randolph Gugenheimer, plaintiff’s attorney, it is ordered that the summons in this action, a copy of which is hereto annexed, bo served upon said defendant, Conrad Boiler, by publication thereof, in the Daily Register and New York Herald, two newspapers published in the eity and county of New York, once in each week, for six successive weeks, and by mailing copies of said summons and complaint properly enclosed in a sealed wrapper, addressed to said defendant at his last place of residence, West Eighty-third street, near Eighth avenue, in the city of New York, the postage thereon being fully prepaid, said publication and mailing to be commenced within three months from the date hereof. And it is further ordered that, at the expiration of said time the summons herein be deemed to have been served upon said defendant. It does not distinctly appear upon what ground the order of publication was granted, but from a statement made in the respondent’s points, it seems that the defendant who was implicated in certain political frauds, suddenly disappeared from this State about a year ago, leaving numerous creditors, and that no information as to his whereabouts could be obtained. In such a case an order of publication may be obtained under the second subdivision of section 438, of the Code of Civil Procedure, which provides as follows; “ Where the defendant being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to evade the service of a summons, or keeps himself concealed therein with like intent, an order directing the service of a summons without the State, or by publication, may be made.”

Section 440 of the Code mentioned, declares that “the order of publication must contain a direction that on or before the day of the first publication the plaintiff deposit, in a specified post office, one or more sets of copies of the summons, complaint and order, each contained in a securely closed, post-paid wrapper, directed to the defendant at a place specified in the order, or a statement that the judge, being satisfied by the affidavits upon which the order was granted that the plaintiff can not Avith reasonable diligence ascertain a place or places Avhere the defendant Avould probably receive matter transmitted through the post office, dispenses Avith the deposit of any papers therein.” It avíII be perceÍAred, on examination of the order granted herein, that there is no post office specified, and that the deposit to be made is not by direction to be made on or before the day of the first publication, but within three months from the date of the order. It avíII also be perccived that it contains no direction to serve a copy of the order of publication, which is required by section 440 (supra). Indeed, it is apparent that the attorney for the plaintiff has mingled two proceedings, namely: proceeding for a substituted service, and one for publication under the section referred to. The order entered complies with neither of the requisites of these proceedings, and is therefore irregular and void.

The defendant having disappeared from the State, and the case being one within subdivision two already mentioned, the order should contain a direction in reference to the service at a specified post office, or a statement that the judge was satisfied by the affidavits upon which the order was granted that the plaintiff could not with reasonable diligence ascertain where the defendant would probably receive matter transmitted through the post office. It contains neither.

We think the order ivas erroneous and void, on the authority of Tousley v. McDonald (32 Barb., 604); Warren v. Tiffany (17 How., 107); Hyatt v. Wagenright (18 How., 248.)

The order should be reversed.

Davis, P. J., and Ingalls, J., concurred.

Order reversed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    HENRY COLTON, Appellant, v. ZACHARIAH E. SIMMONS and others, Respondents.

      Taxation of costs — stenographer’s fees — cannot he taxed.

    Upon the trial of this action before a referee, the attorneys for the respective parties agreed, for convenience, to employ a stenographer to take the minutes, each party to pay one-half of the expenses of his so doing. The defendant having been successful, claimed upon presenting his bill of costs for adjustment, to be allowed the sum of $1,847 paid by him to the stenographer.

      Held, that the item was properly rejected by the clerk, that such item was not a disbursement within the meaning of the law regulating the adjustment of

      Appeals from orders of the Special Term directing certain referee’s and stenographer’s fees to he adjusted by the clerk as disbursements in the action.

      F. II. Pulz, for the appellant.

      W. D. Herman, for the respondents. .
   Davis, P. J.:

On the 20th day of December, 1869, the appellant and one Samuel D. Dickinson as plaintiffs, commenced an action in this court against the respondent for the purpose of securing a dissolution of a part ownership and a sale of the property owned and enjoyed on a joint account.

On the third day of October, 1870, the appellant alone commenced this action against the respondents for an accounting of the part ownership, but including also the interests of the parties in the State lottery of Louisiana in which they were concerned. The two cases were by an order of this court, made in them severally, on the 29th of June, 1872, referred to the Hon. C. A. Peabody as sole referee to hear and determine the same. It appears that the first meeting at which any step was taken before the referee, was on the loth of November, 1873, and it was then agreed by the respective counsel present that the two cases should be tried together, and the titles of both were thereupon entered in the referee’s minutes. The affidavit of the attorney, Mr. Pulz, shows, and in this he is sustained by the affidavit of the referee, that it was at that meeting agreed between the respective counsel that all the testimony, oral and documentary, taken or offered upon the trial, should apply so far as practicable to both cases then on trial, and this agreement was made in the hearing and presence of the referee. The affidavit of Mr. Pulz further states that there was no stenographer present at this hearing, and it was agreed between the attorneys that for convenience a stenographer should be employed, and that each party should pay one-half of the expenses of reporting the testimony. This statement is substantially admitted by the respondents, but it is asserted on their part that it was not entered upon the stenographer’s minutes until it considerable portion of the testimony in the case had been taken. Everything in the papers tend to show that the cases thenceforwards proceeded pari passu, the testimony being taken in and for each by the stenographer, and the referee acting simultaneously as such in both cases. Pending the trial a settlement was made between the parties of that part of the' controversy in the action of Colton and Dickinson in relation to.-, the state lottery of Louisiana. y.

When the plaintiff rested in both suits the defendants moved to dismiss the complaint in this action on the ground as stated in the case, that there was at the time of the commencement of this suit, another suit pending between the parties hereto for the same-causes of action set forth in the complaint in this suit, except that the cause or causes of action in this suit stated, relating to lottery grants and franchises in and of the state of Louisiana, and the lotteries based thereon, were not included in the earlier suit.

That since the commencement of this suit the claim or cause of action based upon or relating to lottery grants and lotteries of and in the said State of Louisiana, has been settled between the plaintiff herein and certain of the defendants herein, and said cause of action, and all claim by reason thereof has been ended and withdrawn, so that this> suit, as it now stands, is based wholly and exclusively on the cause of action stated and set forth in the earlier suit pending at the time this suit was commenced and now pending. The referee granted the motion and dismissed the complaint with costs against the plaintiff.

The other suit, to wit, that of Colton against Dickinson, is still undetermined and pending before the referee.

On presenting the bill of costs for adjustment to the clerk, the defendants claimed as a disbursement the sum of $1,847, paid by him to the stenographer for his services. The clerk refused to adjust that item on the ground that it "was not a taxable disbursement. The Special Term has overruled the decision of the clerk, and directed the taxation of this item. We think the clerk was right in rejecting the item. It was not a disbursement within the meaning of the law regulating the adjustment of cods. The parties for their mutual convenience agreed upon the employment of a stenographer, and that each should pay half the expense of his services in taking notes of the evidence; he was not rendering any official service, nor was he acting within any provision of the Code which allows the expense in taking notes or furnishing the parties thereto, to be treated as disbursements in the case.

It is very clear that if they had employed, under such mutual agreement, any clerk of ordinary capacity, to take notes for them and furnish them copies of his notes, his services could not be regarded as a disbursement, nor was it ever known under the former system that charges could be made by one party against the other for the talcing of notes of the testimony on the trial. The fact that the person thus employed was a stenographer, and used a shorter and easier mode of taking notes, could not make any difference in the rule applicable to the case.

Either party could have employed his own stenographer, and certainly could not have charged the other party with the expense thereby incurred as a disbursement in the action, and the fact that they unite in such employment for the purpose of lessening the expense of each gives no force to the suggestion, that what one pays as his proportion can be taxed against the other on the termination of the action. The clerk was right, therefore, in rejecting the whole of this item, and it is not necessary to go into the inquiry whether it should have been distributed between the two actions then pending and on trial.

The plaintiff claimed also as a disbursement, the sum of $1,340, for referee’s fees. The clerk allowed and adjusted this item.

The referee states that that was the amount of his fees up to the time of the dismissal of the complaint in this action, for his services as referee on the trial of both actions, and of that sum $450 have been paid by the plaintiff’s attorneys. Of course the $450 .should have been deducted, even if the services of the referee were wholly chargeable as disbursements in this action. The Special Term have ordered that to be done, and directed the taxation of the residue of the item, to wit, $889, against the plaintiff. But we think this was erroneous,. because upon the papers before us, the referee’s services were rendered simultaneously in both actions, and his charges were for services in both. Inasmuch as he held in dismissing the complaint in this case on the ground that the prior action then on trial before him was pending for the same cause, it must be inferred, even if it luid not appeared in the papers, that the evidence taken, whether documentary or oral, was, equally applicable to both actions. There is no difficulty, therefore, in discerning that the referee’s services were of equal value to the parties in both actions, and there is. also no difficulty in making a proper apportionment of those fees instead of doing what was done in the case. The court should have divided the gross sum of referee’s fees into equal parts of $670 each, and allowed one moiety thereof, as taxable in this case, and should have deducted therefrom one-half of the $450, already paid by the plaintiff, to wit, $225, leaving to be properly taxed the sum of $445, as referee’s fees in this action.

The order of the court below must be modified accordingly, and as the appellant wholly succeeds upon the questions presented to the court below, he should have $10 costs, besides disbursements of this appeal.

Brady and Ingalls, JJ., concurred.

Order modified as directed in opinion, with $10 costs and disbursements.


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    GEORGE BEACH, an infant, by JOSEPH BEACH, his Guardian, Appellant, v. THE MAYOR, etc., OF THE CITY OF NEW YORK, Respondent.

      Order ferr examination of party before trial — Affidavits.

    Upon an application to examine a party under sections 870, etc., of the Code of Civil Procedure, the affidavits must conform to the requirements of the sections, and an order made on argumentative affidavits will not be sustained.
    Upon an application by the defendant to examine the plaintiff, in an action brought by the latter to recover damages for an injury sustained in consequence of a defective pavement, the affidavit stated that the facts and circumstances connected with the happening of the alleged accident, and the hour of the day or night on which it is stated to have occurred, and the names of the by-standers or witnesses, if any there were, and the nature and extent of plaintiff’s injuries, were not within the defendant’s knowledge, and in order to enable defendant to prepare properly for the defense of the action it would be necessary to examine the plaintiff before trial.

      Held, that this statement of facts was not sufficient, or such as was required by the statute; that it did not show that the testimony was material and necessary for the party making the application, for the prosecution or defense of the action.
    Appeal from an order of the Special Term denying a motion of the plaintiff to vacate an order of examination under sections 870, 872, 873 and 874 of the Code of Civil Procedure. The application for the order of examination was made upon the following affidavit:
    -, being duly sworn, says: That he is an attorney and counsellor at law, and employed in the office of the counsel to the corporation; that this action is brought to recover the sum of $5,000, on account of sundry injuries, which plaintiff alleges he sustained while riding or driving through Ninth avenue between 55th and 56th streets in the city of New York, by reason of the alleged unsafe and dangerous condition of the pavement of said avenue; that the answer herein sets up a general denial, and in addition thereto avers, upon information and belief, that the said alleged injuries were caused solely by the carelessness and negligence of this plaintiff; that all the facts and circumstances connected with the happening of the alleged accident, the hour of the day or night at which it is said to have occurred, the names of the by-standers or witnesses, if any there were, and the nature and extent of the plaintiff’s alleged injuries, are peculiarly within the knowledge of this plaintiff and not at all within the knowledge of defendants’ department of law, and that in order to enable these defendants to prepare properly for the defense of this action, it will be necessary for them to examine this plaintiff before trial under the provisions of §§ 872, 873, etc., of the Code of Civil Procedure; that this action is at issue and about to be tiled; that the plaintiff herein appears by his attorneys, Messrs. Winfield, Leeds & Morse, of No. 120 Broadway, N. Y.; and deponent further says, upon information and belief, that the plaintiff resides within the city and county of New York.
    Sworn to before me, this 14th day of November, 1877.

      Winfield, Leeds <& Morse, for appellant.

      Thomas P. Wishes, for respondent.
   Davis, P. J.:

To entitle a party to an action to examine another party thereto, or a person not a party, before trial, it is required by section 872 of the Code of Civil Procedure, that the person desiring to make such examination, present to one of the judges named in such section, an affidavit setting forth as follows, names and residences of all the parties in the action, and whether or not they have appeared, and if either of them have appeared by attorney, the name, residence and office address of the attorney, the nature of the action and the substance of the cause .of action and the judgment demanded, the nature of the defense if any has been interposed, the name and residence of the person to be examined and that the testimony of such person is material and necessary to the party making such application, for the prosecution or defense of such action, and either the place where such party is sojourning, or where he regularly transacts business, and any other fact necessary to show that the case comes within sections 870 or 871, or relevant to the questions specified in section 873 of the Code of Civil Procedure.

Nothing seems easier than to prepare an affidavit in such case, in conformity to the requirements of the section, and the court ought not, therefore, to allow slipshod and argumentative affidavits as a substitute for those required by the statute. An examination of the affidavit in this case shows that it fails to comply with the requirements in several particulars. For instance, the affidavit does not state the names and residences of all the parties to the action, and whether or not they have appeared. Those are the facts required to be verified by affidavit; they are not indicated in any way except as the names are given by the title of the action preceding the affidavit. The attorneys of the plaintiff are named, and an address is given, but it is not stated whether it is the residence or office address of the attorney.

The name of the person to be examined is not stated, except by calling him the plaintiff, and his testimony is not stated to be material and necessary for the party making the application for the prosecution or defense of the action. The action is brought to recover for an alleged injury suffered by the plaintiff- while riding or driving on one of the avenues in the city of New York, by means of the alleged unsafe and dangerous condition of the pavement; and it is further stated that all the facts and circumstances connected with the happening of the alleged accident, and the hoar of the day or night on which it is stated to have occurred, and the names of the bystanders or witnesses, if any there were, and the nature and extent of the plaintiff's injuries, are not at all within the knowledge of the defendant's department of law, and it is stated that in order to enable the defendant to prepare properly for the defense of this action, it will be necessary for them to examine this plaintiff before trial under the provisions of the Code above named. This is hot stating that the testimony is material or necessary for the party making the application, for the prosecution or defense of the action, but, at most,- is a statement that it is necessary for the purpose of enabling the plaintiff to prepare properly for the defense of the action.

The provisions of the Code contemplate an examination of the party as a witness in the action itself, with the view to the use of his deposition as testimony upon the trial. But this application shows that the object was not to get his testimony to use upon the trial, but to force him by an examination to furnish-to the defendants the information necessary to enable them to look up witnesses to be used against him. This doubtless may be done by resorting to such an examination, as one of the necessary incidents to the taking of testimony, but where it is stated to be the object and purpose of the examination, the party fails in material respects to comply with the requirements of the Code in his affidavit.

We are of the opinion that the court below should have vacated its order, and that the order denying the motion should be reversed and the motion granted, with ten dollars costs • besides disbursements.

Brady and Ingalls, JJ., concurred.

Order reversed, motion granted with ten dollars costs and disbursements.


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    BENJAMIN G. ARNOLD, and others, Plaintiffs, v. THE PACIFIC MUTUAL INSURANCE COMPANY Defendants.

      Policy of ‘marine insurance — voyage described in — deviation from.

    íhe defendants issued to the plaintiffs a policy of marine insurance upon their intei-est in a cargo of coffee from Santos to New York, Baltimore or Boston direct, or, via Hampton Roads for orders. On June 28th, plaintiffs’ agent in Brazil chartered a vessel for a voyage from Santos to New York, Philadelphia or Baltimore, via Hampton Roads for orders. Subsequently on plaintiffs’ application, defendant indorsed on the policy “Aug. 1, bar-k Eliza and Maria from Santos to New York.” The defendant had no knowledge of the charter or the voyage.
    "The vessel arrived at Hampton Roads on August 25th, and remained waiting-orders from the plaintiff until September. 13th, when she was struck by a steamer and sunk, the cargo being destroyed. In an action to recover upon the policy, held, that the indorsement upon it limited the voyage to a direct one from Santos to New York, and, that the stoppage of the vessel at Hampton Roads for such a length of time, no necessity being shown therefor, constituted a deviation and avoided the policy.
    Motion for a new trial on exceptions, ordered at Circuit to be heard at the General Term in the first instance.

      William G. Choate, for plaintiffs.

      Joseph H. Choate, for defendants.
   Davis, P. J.:

This is an action upon a policy of marine insurance. A verdict was rendered for the plaintiffs by direction of the court, and the defendants’ exceptions were ordered to be heard in the first instance at the General Term.

But two important questions are presented by the exceptions.

The first arises upon the indorsement made upon the policy by the defendants upon the report of the plaintiffs that the voyage of the ship Eliza and Maria was from Santos to New York. It does not seem that there would ■ have been any doubt that the policy would have attached immediately upon the lading of the coffee on board at Santos, if the voyage provided for by the charter party had been within the terms of the policy; but it was not. The policy provides for voyages from Santos to New York, Baltimore or Boston direct, or, via Hampton Roads for orders. The voyage of this vessel, however, when she sailed from Santos was to New York, Philadelphia or Boston, via Hampton Roads for orders. We think it was evidently the purpose and intention of the parties, that all shipments made by the plaintiffs at the ports of shipment mentioned in the policy to the ports of discharge therein mentioned, should be protected by insurance from the time of their lading. But a shipment to Philadelphia would clearly not have been within the policy.

The policy contained this provision: “ Risks applicable hereto to be reported to this company for indorsement on the policy as soon as known to the assured..”

The Eliza and Maria had in fact been chartered on the 28th of June by the plaintiffs’ agents in Brazil for a voyage from Santos to New York, Philadelphia or Baltimore, via Hampton Roads for orders. On the first of August following, the plaintiffs having received advices of such shipment of the cargo from Santos, sent to the insurance company an application for indorsement upon the policy, in these words: “ Enter on open policy to B. Gr. Arnold & Co., $18,279, gold, for one-sixth of goods as per policy value on $109,675, on board bark Eliza and Maria, from Santos to New York. New York, August 1st, 1872. One per cent.” To this was subscribed the initials of the insurance brokers and of the vice-president of the defendants; and thereupon an indorsement was entered upon the policy in the words and figures following: “ August 1st; bark Eliza and Maria from Santos to New York; amount insured, $18,279; rate of policy, 1 per cent.; amount of premium, $182.79; remarks, one-sixth.”

The charter was not known to the defendants nor the voyage, so far as anything appears, otherwise than as described in the indorsement. The vessel arrived at Hampton Roads in safety, on the 25th of August, and there remained at anchor until the 13th of September, 1872, when she was destroyed with her cargo by being run down and sunk by a steamer. The captain’s instructions from the plaintiffs’ agent at Santos were to proceed to Hampton Roads and await orders, and communicate with the plaintiiis in New York. On arriving at the Roads, he telegraphed to the plaintiiis that he had arrived and was there awaiting orders. He rvas instructed by the plaintiiis to remain there and arvait their instructions as to orders whither he should go to discharge his cargo. No further instructions Avere received by the master, and on the 12th of September, the plaintiiis directed him by letter, which Avas not received until after the loss of the vessel, to sail for New York on the 16th, unless in the meantime he should be advised by telegraph to the contrary.

During the interval after the arrival of the vessel in the Roads and the 13th of September, the plaintiffs Avere making diligent search to find a market for the cargo, but Avithout success. It is claimed on the part of the defendants that the going to and lying at Hampton Roads, as above described, Avas a deviation from the voyage for Avliioh the vessel Avas insured fatal to a recovery, or, in other Avords, that the insurance was for the voyage indorsed upon the policy, from Santos to Nerv York direct. We think the effect of the indorsement made under these circumstances upon the policy, AAras to define and restrict the same from Santos to New York direct, and that although the policy Avas an open one, and the rate of premium entered thereon in advance, nevertheless Avhen the parties assured caused to be indorsed upon a policy a description of the voyage in the form above stated, the insurance became operatiA'o only upon such a voyage as Avas therein described. No other risk Avas reported and none other knoAvn to the insurance company. The sailing to Hampton Roads, and anchoring there for the period mentioned without any necessity being shown Avhich Avould excuse the deviation, we think operated to relieve the defendants. It avus a deviation not contemplated or allowed in the indorsement of the policy, and as a new port of destination, to wit, Philadelphia, not embraced in the policy was included in the charter party, the plaintiffs had a clear right to order the vessel to Philadelphia to discharge her cargo, Avhile she was lying in Hampton Roads, and this would be a voyage not within the policy. If this right existed and the policy coArered the cargo until her arrival at Hampton Roads, and the giving of orders to go to Philadelphia, then the insurance avus terminated by such arrival, for it can not be stated to be within the agreement of the defendants that the vessel might lie in Hampton Roads for a period of eighteen days till the plaintiff should exercise an option whether the voyage should finally be one within the policy or not.

We think the election of the voyage was made by the indorsement,, and that that act alone brought this particular cargo within the terms of the policy. None of the cases cited are precisely analogous, although the principles which govern such a case seem, to be well settled. (Orient Mutual Ins. Co. v. Wright, 23 How. U. S. Rep., 401, and cases cited.) As these views determine that the motion for a new trial should be granted, it is not necessary to consider the question whether the delay of eighteen days in Hampton Roads was also such a deficiency as would defeat the plaintiff’s right to recover.

Exceptions sustained; new trial ordered with costs to abide the event.

Brady, J., concurred.

Ordered accordingly.


text:
    ISAAC H. BAILEY, Receiver, etc., Plaintiff, v. SUSAN SPOFFORD and others, Executors, etc., Defendants.

      Executor — power of to charge estate, by indorsing note.

    One of several executors has no power to chai’ge either the estate or his co-executor by indorsing a note in the,name of the estate, even though it be given in renewal of one indorsed by the testator in his lifetime.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a dismissal of the complaint at the Circuit.

      George Bliss, for plaintiff.
    The indorsement;, “Estate of Paul Spofford, by P. N. Spofford, Ex’r,” if made merely in renewal of a liability of the testator, bound the estate, and the plaintiff was entitled to have the case submitted to the jury. The act of the one executor is as binding as if all had joined in it. (Wheeler v. Wheeler, 9 Cow., 34; People v. Key ser, 28 N. Y., 226, 232; 2 Williams on Executors, 1013, [Ed. of 1877]; Dunham v. Dey, 15 Johns., 554.) There seems to be no decision directly in point, either in this State or elsewhere, but the position taken by the plaintiff is fairly deducible from the decided cases. (MeSorley v. Leary, 1 N. Y. Leg. Obs., 410; Bank of Troy v. Topping, 13 Wend., 557; Chouteau v. Suydam, 21 N. Y., 179; Cary v. Gregory, 38 N. Y. Superior, 127; Schoonmaker v. lioosa, 17 Johns., 301.)

      J. H. Choate, for defendant.
    Assuming that the testator, at the time of his death, was indebted to the bank, upon notes or otherwise, to an amount equal to that of the notes, the executors had no authority to bind the estate by indorsing a note for that amount, payable at a future day to the bank. (Austin v. Monroe, 47 N. Y., 360; Ferrin v. Myrick, 41 id., 315; Reynolds v. Reynolds, 3 Wend., 244; Myer v. Cole, 12 Johnson, 349; De Mott v. Field's Administrator, 7 Cow., 58.) In this case, however, as to the three executors, Susan Spofford, Gardiner S. Spofford, and Joseph L. Spofford, no case whatever was made out; for no principle is better settled than tliat, where there are several co-executors, one cannot bind the others by a new promise to pay in future even a debt of the estate, and that such a promise, or an admission of an indebtedness, on the part of the estate, by one, cannot be received in evidence as against his co-executors. (Jlamrnon v. Huntley, 4 Cow., 493; Forsyth v. Ganson, 5 Wend., 558; Flwood v. Diefendorf, 5 Barb., 398; Cayuqa Co. Bank v. Bennett, 5 Hill, 236.)
   Davis, P. J.:

The court below dismissd the complaint on the ground that the indorsement of the several notes shown to have been made by Paul N. Spofford, one of the executors, did not charge the estate of the testator. If this ground of dismissal was a sound one, the evidence tending to establish the protests of the notes by entries in the book of the bank made by the deceased clerk, became wholly immaterial.

It appears that the testator in his lifetime was a second indorsor of a series of notes given to and discounted by the National Bank of the Commonwealth, of which the plaintiff is receiver. The executors of the testator are Susan Spofford, Paul N. Spofford, Gardner Spring Spofford and Joseph L. Spofford. After the maturity of the last of the notes indorsed by the testator, several renewal notes were given by B. J. Howland, the maker, which were indorsed by the payee, and also by Paul N. Spofford, one of the executors, in the following form : “ Estate of Paul Spofford, by Paul N. Spofford, executor.” These renewals and indorsements were repeated from time to time, down to the making and indorsement of the notes in suit, both of which were indorsed in the form above stated by Paul N. Spofford, one of the executors.

The court in dismissing the complaint held that these indorsements did not charge the estate, and that an action would not lie thereupon against the executors. We are of the opinion that this decision was correct, and that one of the several co-executors can not bind the others nor the estate by an instrument executed by himself alone, although it be in fact an extension or admission of an indebtedness which existed against the testator before his decease. This view is sustained in principle by Hammon v. Huntley (4 Cow., 493); Forsyth v. Ganson (5 Wend., 558); Jumes v. Hackley (16 Johns., 273); Elwood v. Diefendorf (5 Barb., 398.) It is not shown that Paul N. Spofford, one of the executors, was authorized by his co-executors to make the indorsements, nor does it appear in the evidence that the other executors knew of or consented in any form to the renewed indorsement. Another question would be presented if all the executors had concurred in the act of indorsement; but that question is not now before us, nor is the question before us whether or not Paul N. Spofford could in a proper action be held liable individually by that indorsement. We think the case should bo disposed of on the naked proposition passed upon by the court below, to wit, that one of several executors had not power to charge either the estate or his co-executors by an indorsement made by himself alone. And this conclusion renders it unnecessary to pass upon the question whether the bank book was properly excluded, because that question becomes -wholly immaterial in the case.

The motion for a new trial should, he denied, and judgment ordered on the exceptions for the defendant.

Brady and Ingalls, J J., concurred.

Motion for a new trial denied, and judgment ordered on the exceptions for the defendant.


text:
    FREDERICK H. JOHNSON, Respondent, v. THE ADAMS TOBACCO COMPANY, Appellant.

      Want of jurisdiction- in- the court — how taken advantage of.

    Upon an appeal from an order denying a motion to dismiss the summons and complaint, on the ground that both the plaintiff' and defendant were non-residents, and that the subject matter of the action was not situated, nor did the cause of action originate in this State.

      Held; that the question as to the jurisdiction of the court could not be tried on a motion.
    That if the w«*ut of jurisdiction appeared on the face of the complaint, it should be taken advantage of by demurrer; and if it did not so appear it should be set up in the answer.
    Appeal from an order denying defendant's motion to dismiss the summons and complaint in this action, on the ground that the plaintiff was a 11011-resident of this State, while the defendant is a foreign corporation, and that the subject matter of the action is not situated, nor did the cause of action arise in this State.

      George De Forest Lord, for the appellant.

      J. J. Thompson, for the respondent.
   Davis, P. J.:

This motion was rightly disposed of below for two reasons: First, the cause of action arose in this State, although the contract was made in Canada, yet it was to be performed by its terms in Canada or in the United States. It was, in fact, mostly performed by the plaintiff in the city-of Now York. By the resolution to terminate the employment of the plaintiff, it is provided that the engagement of the plaintiff with the defendants should terminate upon the receipt of a copy of the resolution by the latter. A copy of the resolution was received by the plaintiff at the city of New York. By the terms of the resolution, it thereupon operated as his discharge and consequently as a breach of the contract at this city. The cause of action arose upon such breach, and therefore may be properly said to have arisen in the city of New York.

But we think, also, the question of jurisdiction should not be permitted to be tried upon affidavits in the manner attempted in this case. Under the provisions of the Code, if a want of jurisdiction appears upon the face of the complaint, it may be taken advantage of by demurrer, if it fails so to appear, by answer; (Code of Civil Procedure, §§ 488, 498.) And we think the proper remedy in this case, if the appellants desire to raise the question, is to do so by answer.

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

Brady. J., concurred.

Present- — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. HENRY CLEWS.

      Person, indicted — by whom he may be let to bail.

    A person arrested on a warrant issued on an indictment found in any court of criminal jurisdiction may be let to bail under § 56 of 2 R. S., 728, by any justice of the Supreme Court of this State, provided it shall appear that the court having cognizance of the offense and jurisdiction to try the same is not sitting at the time the application for bail is made.
    •In the matter of Gorsline (21 How., 85 ; 10 Abb., 282), distinguished.

      Certiorari to the Hon. Charles Donohue, one of the justices of the Supreme Court residing in the city of New York, to review proceedings and an order on habeas corpus, letting the defendant to bail.

      E/ial F. Hall, for the people.

      Abbott Bros., for Henry Clews.
   Davis, P. J.:

The defendant Clews was indicted for an alleged felonious crime in the Court of Oyer and Terminer in and for the county of Chautauqua. The indictment by order of that court was sent to the Court of General Sessions in the county of Chautauqua and there remains for trial.

A warrant under the indictment for the arrest of the defendant was duly issued by the district-attorney of the county of Chautauqua, upon which warrant the defendant was arrested in the city of New York where he resides. He sued out' a writ of habeas corpus, granted and returnable before Justice Donohue for the purpose of giving bail for liis appearance to answer the indictment at the Court of Sessions in Chautauqua county.

On the- hearing of the writ, it being made to appear that the • Court of Sessions in Chautauqua county was not then in session, Justice Donohue held and decided that he had jurisdiction as a justice of the Supreme Court to let the defendant to bail, and an order Avas made accordingly and the defendant entered into a recognizance in the usual form Avith tAvo sufficient sureties to-appear at the next Court of General Sessions in Chautauqua county; Avhieh bail was approved by said justice, and thereupon he Avas discharged from arrest. The only question presented is Avhether Mr. Justice Donohue as one of the justices of this court had power under the facts above stated to let the defendant to bail.

It Avas held by Justice Bonney in the Gorsline case, (21 How. 85, 10 Abb. 282), that a justice of the Supreme Court had not power on habeas corpus or otherAvise to let a defendant to bail after his arrest on a bench warrant, but in that case as the facts. are stated, it did not appear that the County Court of Sessions was not then in session, nor was any allusion made to the section •of the statute by which it is now claimed on behalf of the defendant that the power to let to bail in such ease as the present is given by the Leglislature.

In The People ex rel. Sichel v. Chapman (30 How., 202), the case under consideration was one in which a prisoner had been arrested upon the warrant of a police magistrate for the purpose of an examination before indictment; and so also is the case of Clark v. Cleveland (6 Hill, 344.)

In The People ex rel. Sichel v. Chapman, Mr. Justice Smith refers to Gorsline’s case, and in respect to it makes this remark: “ In deciding that case the learned justice probably overlooked section 56 of the statute (2 R. S. [1st ed.], 728), which gives power in certain cases to any justice of the Supreme Court to let to bail persons indicted.”

Section 56 referred to by Mr. Justice Smith is in these words: In the cases where by law persons indicted may be let to bail for their appearance at the court having cognizance of the offense, they may be so let to bail by the court having jurisdiction to try the offense charged, or if such court be not sitting, by the chancellor, any justice of the Supreme Court, circuit judge or Supreme Court commissioner, and if the offense charged may be tried in the court of General Sessions, such persons may be let to bail'by any judge, of the county courts of the county where such indictment ivas found.” (2 R. S., 728, § 56.)

It may be, as suggested by Mr. Justice Smith, that Justice Bonney wholly overlooked this section; or perhaps the case before him was one in which it appeared that the Court of Sessions was in actual session at the time, or that the relator in that case failed to show that that court was not in session, in either of which cases the jurisdiction of the judge to let to bail would not exist. We have carefully examined these several statutes and are of the opinion that the jurisdictional power of a justice of the Supreme Court, where the state of facts described in the statutes exists, is general and was properly exercised in the case before us. A person arrested on an indictment found in any court of criminal jurisdiction may be let to bail under section 56 of the Revised Statutes above referred to, by any justice of the Supreme Court of the State, provided it shall appear that the court having cognizance of the offense and jurisdiction to try the same, is not sitting at the time the application for bail is made. None of the authorities cited (except perhaps that of Grorsline’s case, which is not necessarily so) are in conflict with this view of the authority and power of justices of the Supreme Court in such cases, and we see no' reason to doubt that the intention of the legislature was to meet and provide for just such cases as that before us, where the indictment is found in a distant county and the court in which it may be tried is not in session, and the party indicted is arrested in another county, and appears for bail before a justice of this court.

The' proceedings and order of Mr. Justice Donohue therefore should be affirmed.

Brady and Ingalls, JJ., concurred.

Proceedings and order affirmed.


author: Beady, J.:

text:
    In the Matter of the Petition of PHILIP J. JETTER to vacate an Assessment.

      Petition to vacate assessment in New York' — not a special proceeding — costs — wider chapter 338 of 1858 — a motion not a special proceeding within ehapter 270 of 1854.
    A petition brought under chapter 338 of 1858 to vacate an assessment in the city of New York, is not a special proceeding within the meaning of chapter 270 of 1854, relating to costs, but is merely a motion, and no costs can be allowed; except costs of a motion and disbursements properly made.
    The allowance of costs in proceedings of this character is contrary to the established and now universal practice in this district.
    Appeal from an order denying a motion to vacate a judgment for costs, and to re-tax costs, in an application to vacate an assessment in the city of New York under chapter 338, of 1858.

      J. A. Beal, for the corporation of New York, appellant.

      B. O. Andrews, for the petitioner, respondent.
   Beady, J.:

The petitioner applied at Special Term to vacate an assessment' for paving Spring street from Broadway to West street, alleging that the resolution and ordinance of the common council authorizing the improvement were not published prior to their adoption, as required by chapter 446, of 1857, and that a previous assessment for paving the same street had been laid upon the petitioner’s property, which was duly paid.

A reference was ordered to take proof of the facts, and on the doming in of the referee’s report an order was granted vacating the assessment mentioned, with costs and disbursements. The amount of the assessment vacated was $63.45. The petitioner proceeded to tax the costs and disbursements which consisted of the following items, amongst others: costs of trial of issue of fact, $30; proceedings before notice of tidal, $15; costs for proceeding after notice and before trial, $15; referee’s fees, $25; all of which were allowed, notwithstanding the objections of the counsel,to the corporation.

It is claimed that the application of the petitioner is a special proceeding under the provisions of chapter 270 of Laws of 1854, the third section of which declares that in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed, shall be at the rates allowed for similar services in civil actions. We are decidedly of the opinion that this is not a special proceeding within the purview of that statute. It involves no issue of fact, to be tried in any other form or mode than upon a motion; and under provisions of the Code, a judge sitting at Special Term to whom the motion is presented, may make a reference for the purpose of taking proof or for the purpose of having the persons whose affidavits have been presented to him for consideration, examined orally in regard to the statements there made.

The proceeding to vacate an assessment amounts to a motion, and is nothing more, and therefore the only costs that can be allowed properly would be the costs of the motion and the disbursements properly made. It is very clear, therefore, that the charge of $30 for trial of issue of fact, for proceedings before notice of trial, and after notice and before trial, were not properly allowed and should have been stricken out on the objection of the corporation counsel.

A discretion having been exercised which embraces the other items taxed, it is not our province to interfere with the allowance secured in that mode. We regard the allowance of costs in proceedings of thin character as contrary to the established and now universal practice of the judges of this district; and while we feel compelled under the circumstances of this case to allow the amount of the costs and disbursements already mentioned, we desire it to be understood by the profession that this is not to be regarded as a precedent in reference to costs to any amount whatever.

The costs thus stricken out could not be granted upon the proposition that this is ajudgment, or bears any resemblance to a judgment in an action, for the reason that no presentation of any claim was made to the chief fiscal officer of the corporation. The statute of 1859 (chap. 262, § 2), declares in express terms that no costs, fees, disbursements or allowances shall be recovered or inserted in any • judgment against municipal corporations, unless the claim upon which the same is founded was presented to the chief fiscal officer of the corporation before the commencement of the action. We feel constrained, therefore, with the modification suggested, to affirm the order without costs to either party.

Davis and Ingalls, JJ., concurred.

Order affirmed without costs to either party.


text:
    MARTIN MAAS, Respondent, v. JAMES O’BRIEN, Sheriff, etc., Appellant.

      Imprisonment wider non-imprisonment act of 1831 — effect of proceedings in bankruptcy upon.

    On the 21st of December, 1867, one Latorre was arrested by the sheriff on a warrant issued under the non-imprisonment act of 1831. On December 31st, proceedings in bankruptcy were instituted against Latorre; on January 11th, 1868, he was declared a bankrupt, and on February 4th of that year all his estate was transferred to an assig-nee in bankruptcy. In an action against the sheriff to recover damages for an escape of the prisoner which occurred in June, 1868, held, that the pending proceedings under the non-imprisonment act were so far as the assignment for the discharge of Latorre from imprisonment was concerned, legally superseded by the adjudication in bankruptcy and the proceedings subsequent thereto; that even though he had not availed himself of the discharge to which he was entitled, but remained in custody at the time of the escape, that plaintiff was not entitled to recover damages therefor.

      Queare, whether in an action for an escape the sheriff could insist that the warrant upon which the prisoner was committed was void, because issued before any action had been commenced against him.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      A. J. Vanderpoel, for appellant.

      A. 11. Dyett, for respondent.
   Davis, P. J.:

This is an action against the sheriff for the voluntary escape of one Raymond S. Latorre, imprisoned in the county jail upon a warrant issued under the non-imprisonment act of 1831. The escape was in the act of a deputy-sheriff taking the prisoner from jail about the first of June, 1868, to the place of business of a third party in the city of New York, to enable him to make efforts to be discharged upon a compromise of his debts, and immediately thereafter returning him to the county jail where he in fact remained imprisoned until he was regularly discharged upon application to the court under the insolvent laws.

The first question urged upon our attention is that Latorre was not held under legal process; and this is made upon the alleged ground that the warrant under the non-imprisonment act, upon which he was originally arrested, was issued by the judge before the commencement of an action against Latorre. On being arrested Latorre was brought before the judge who issued the ■warrant, and failing to controvert any of the allegations of the affidavits upon which the warrant was issued, he was committed by the judge in conformity to the provisions of the non-imprisonment act. He made no question as to whether or not the warrant was issued before the commencement of the suit, and by his neglect to raise the question at that time must be regarded as having conceded that the process was regularly issued. The writ of committal on which the sheriff held Latorre was based upon the proceedings had at the time of the return of the warrant of arrest, in which it ivas recited amongst other things that an action had been commenced before the issuing of the writ. The sheriff’s duty was to execute, that process by detaining Latorre in his custody, and it is very doubtful whether after allowing an escape he could be permitted to go behind the process under which he held Latorre for the purpose of assailing the original warrant upon which Latorre was arrested, by raising a question which relates merely to the fact that the suit had not been properly commenced. We do not think it necessary, however, distinctly to pass upon that question, because there seems to us to be in the case another question, which effectually disposes of the appeal.

Latorre was committed to prison on the warrant of commitment on the 21st of December, 1867. On the 31st of December, 1867, certain creditors of Latorre filed a petition in bankruptcy in the District Court of the United States for the southern district of New York, and such proceedings Avere thereupon had, that on the 11th of January, 1868, Latorre was adjudged a bankrupt, and a warrant of seizure to the marshal, and notice to creditors, and all the various steps resulting in an assignment on February 4th, 1868, to the assignee, elected in bankruptcy, of Latorre’s estate, took place. At the time he was adjudged a bankrupt, Latorre, under the eleventh section of the non-imprisonment act, Avas required to remain in custody until a final judgment should have been rendered in his favor in the suit prosecuted by the creditor at Avhose instance he had been committed, or until he should have assigned his property and obtained his discharge as provided in the subsequent sections of that act.

Such subsequent sections provide for proceedings on the part of the imprisoned debtor resulting in an assignment to one or more assignees by the prisoner, and declare that the assignees shall be vested with all the rights and powers over the property assigned specified in the eighth article, title one, chapter five of the second part of the Revised Statutes, and shall be subject to the same duties, obligations and powers, in all respects and shall make dividends, etc., and that upon producing to such officer, evidence that such an assignment has been recorded, and the certificate of the assignees that all the property of such petitioner specified in his inventory has been delivered to them, or that he has given satisfactory security for the future delivery of the same, such officer shall grant to the debtor a discharge which shall protect him from being proceeded against by any creditor entitled to a dividend of the estate of such debtor under the several provisions of the non-imprisonment act and therein specially mentioned.

It is clearly manifest that these provisions are in direct conflict with the bankrupt act, and with the powers and rights of the creditors of the prisoner adjudged to be a bankrupt, and the result of this conflict is that the former must necessarily give way to the latter. The two assignments cannot stand together. They are in direct conflict with each other, and the assignee in bankruptcy would, we think, take the superior title. (Sturges v. Crowninshield, 4 Wheat., 122; Matter of Goldstein, 52 How., 426; Goodwin v. Sharkey, 3 Bank Reg. [2d ed.], 558; Zeigenfuss Case, 2 Iredell, 463; Reed, v. Taylor, 4 N. Bank Reg. [2d ed.], 710, 712.) It has been held in various cases in this State; that the bankrupt act did not supersede the non-imprisonment act.' (Berthelon v. Beet, 4 Will., 577; Spear v. Wardell, 1 Comst., 149; Matter of Jacobs, 12 Abb. [N. S.], 273; Shears v. Solhinger, 10 Abb. [N. S.], 237.) But these cases do not go so far as to hold that where an actual adjudication of bankruptcy has taken place upon petition duly filed in the court of bankruptcy, the provisions relating to the making of assignments for‘the discharge of the party from imprisonment for debt are not superseded. On the contrary, we think there is nothing inconsistent with these cases, in holding that the adjudication in bankruptcy does have that effect. An assignment under the non-imprisonment act is for the benefit of the individual creditor who has caused the imprisonment of the debtor, and not for creditors in general. (Spear v. Wardell, 1 N. Y., 144; Hall v. Kellogg, 12 id., 325.) And it seems to us that nothing can be more inconsistent than to hold that a person adjudicated a bankrupt, whereby in law all his property is transferred to an assignee in bankruptcy,can, under any circumstances, make an assignment under the non-imprisonment act for the benefit of any individual creditor; the result is that the proceedings and adjudication in bankruptcy by operation of law, necessarily take away from the latter the power to comply with one of the conditions upon which he might be discharged from arrest under the committal; and in doing so the legal effect was to supersede the proceedings under the non-imprisonment act against him, and entitle him to his discharge. He was not even at liberty to pay the debt for -which he was in prison, even if he had the means of doing so, because the legal title of all his property was transferred to the assignee in bankruptcy; and so-it may, in truth, be said that nothing permitted to him by the provisions of the non-imprisonment act, as means of release was left, except the recovery of a final judgment on the trial of the action in which the warrant had been issued against him. Under such circumstances, it seems to us a plain duty to hold that the pending proceeding under the non-imprisonment act was legally superseded by the adjudication of bankruptcy and the proceedings subsequent thereto.

The court excluded all evidence of the proceedings in bankruptcy as a defense, except as far as they related to the question of damages. The alleged escape occurred in June, after Latorre had been adjudicated a bankrupt. If, at the time of his escape he was entitled to his discharge, he had not availed himself of it, but remained in custody, nevertheless the facts were receivable in evidence as affecting the right of the plaintiff to recover at all. They were received by the learned judge on the trial as affecting the measure of damages. If receivable for that purpose, it should have been held, we think, that at the time of the escape nothing beyond nominal damages could be suffered by the plaintiff, inasmuch as all property of every kind belonging to Latorre had become vested in the assignee in bankruptcy, and no acquisition of other property by him was shown. So that if it needed a mere formal proceeding to entitle Latorre to a formal discharge, yet the proof of his bankruptcy showed conclusively that no actual damage could have ensued to the plaintiff. The verdict in this case was for .the sum of $3,339.53; but with the evidence of the proceedings in bankruptcy before the court, we think that there was nothing in the case that could justify such a verdict.

Questions ai’o also raised as to the admissibility of Latorre’s statements as to the property he had prior to his imprisonment, made after his imprisonment. That evidence was of doubtful propriety, in our judgment; but we are not disposed to consider the question, because we think a new trial must be granted upon the question above discussed.

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

Brady J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

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


author: Brady, J.:

text:
    JUAN MARIA SPINETTE, Respondent, v. THE ATLAS STEAMSHIP COMPANY, limited, Appellant.

      Bill of lading — exemption from liability —for loss by theft, barratry of master or mariners — theft by purser not covered by exemption.

    Plaintiff’s agent in New York delivered to the purser of defendant’s ship a box containing two bags, each containing $5,000 in gold coin, to be delivered to plaintiff at Maracaibo, and received a bill of lading which recited among other things, that the company was not liable for any loss or detention of, or damage or injury to the goods, or the consequences thereof, occasioned by any or several of the following, among other causes, namely: theft on land or afloat, barratry of master or mariners, any act, neglect, or default of the pilot, master, mariners, engineers, servants or agents of the company.
    One of the bags of coin was missing upon the delivery of the box to the plainiff. Upon the trial of an action brought to recover the value of the same, evidence having been given tending to show that it was stolen by the purser, the court charged that under the bill of lading the defendant was liable if the bag was stolen by the purser.

      Held, that this was correct; that the clause “theft on land or afloat ” could not have been intended to exempt the earner from a theft committed by the purser, who was placed in charge of the articles by the company itself.
    That the phrase “barratry of master and mariners,” did not include the purser of the ship, whose duties and responsibilities were entirely different from those of either of the classes of persons designated.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action Avas tried.

      Everett P. Wheeler, for appellant.

      Joseph II. Choate, for respondent.
   Brady, J.:

This action was commenced on the 2d of November, 1874, to recover the value of a bag of American gold coin, containing five thousand dollars, belonging to the plaintiff, shipped on board the defendant’s steamship Corinth on the loth of May, 1874, through' Messrs. Ribon & Munoz, plaintiff’s agents in New York, to bo carried to Maracaibo by Avay of Curacoa, and there delivered to the plaintiff.

The complaint alleged that the plaintiff caused to be delivered to the defendant a certain box, containing ten thousand dollars in gold coin, and that somewhere between Ncav York and Maracaibo one bag containing the five thousand dollars in question disappeared from said box, so that on arrival at the latter port the box Avas found to contain only one-half the quantity shipped in it.

The defendant, by its ansAver, denies that the box, when delivered to the defendant, contained ten thousand dollars in gold, and averred that it contained only five thousand dollars, and that if any part of the contents of the box were lost while in the custody of the defendant, the loss was occasioned by one of the following causes mentioned in the bill of lading, namely: theft on land or afloat, barratry of master or mariners, or by some act, neglect or default of the pilot, master, mariners, engineers, servants or agents of the defendant, and not by the negligence of the defendant itself.

It Avas admitted that the defendant is a corporation created and organized under the laAvs of Great Britain, and is a common carrier of goods for hire from NeAv York to Maracaibo in Venezuela.

The plaintiff proved the delivery of the box containing the ten thousand dollars, properly screwed up, strapped and sealed, on board the A'essel, in the cabin, to the purser, and that he gave a ship’s receipt for it. On the same day the receipt was surrendered upon the delivery of a bill of lading, which recites among other things as follows: “ The company is not liable for any loss or detention of or damage or injury to the goods or the consequences thereof, occasioned by any or several of the following causes, namely: * # * theft on land or afloat; * * * barratry of master or mariners; * * * interruption to , navigation by ice, transshipment; any act, neglect or default of the pilot, master, mariners, engineers, servants or agents of the company.”

The vessel sailed from New York for Curagoa on the 15th of May, 1874. It arrived at Curagoa in about twelve days. The box containing the gold was, all the time, in the personal custody of the purser, being deposited in the specie locker of which he alone had the key, to which no one else had access, such locker opening only in to the purser’s room.

The plaintiff proved that, shortly before the saili.ig of the vessel from New York, there, was delivered to the purser another parcel of pencils and penholders wrapped in brown paper, which was addressed in the handwriting of Victor W. Brundage, a clerk of LeRoy W. Fairchild & Co., and sealed with their seals, and bearing a printed label of that Arm pasted upon it, all directed to Mr. J. C. Rodrigues, which was a private adventure of the purser, and that, on the arrival of the wooden box at Maracaibo, which was opened at the custom house in the presence of the plaintiff and the agent of the defendant at that port, it was found to contain .only five thousand dollars in gold, which was inclosed in one specie bag, and that the remaining space in that box contained various papers, among which was the brown paper wrapping of the pencil package, which was identified with that which had been upon it on its delivery to the purser in New York. The plaintiff having rested, the defendant moved that the complaint be dismissed, on the ground that the evidence tended to show that the loss-of the gold had happened by one of the perils excepted in the bill of lading, and that there was no proof of negligence on the part of the defendant.

The defendant’s principal witness was the purser, who denied having taken the gold, but his cross-examination greatly impaired the effect of his denial, and showed him to be a suspicious character. He admitted having taken and kept in his stateroom the paper wrapping from the package of pencils, but could give no satisfactory or consistent reason for so doing, claiming to-have opened it at Porto Cabello after the steamer had landed the box at Curagoa, and sailed from that port to Porto Cabello. The agent of the defendant testified that the purser had been in their employ for two or three years, and that they had had no fault to find with him; that they had taken him upon written recommendation of a merchant who was known to them; that they had heard nothing, except the charge in this case, to his detriment, and retained him in their employ still; that trading by the purser on his own account was contrary to the regulations of the company, and that, if they knew of a purser trading for himself or his brother, they would discharge him at once.

It appeared that the box was delivered by the purser at Curagoa to the house of Jesurum & Zoon, defendant’s agents at Curagoa. The captain of the Pico, by which steamer it was conveyed from Curagoa to Maracaibo, testified that it lay in the counting-house of Jesurum & Zoon for several days waiting for the Pico, and that he received it there, and it looked as if the seals were then intact, but that Jesurum’s clerk took it for granted there was an error in the New York invoice, because he said it fell short of the weight of the New York invoice.

At the defendant’s request, the court submitted to the jury the two questions, whether the plaintiff delivered to the defendant two bags of five thousand dollars each or only one bag, and whether the missing bag of gold was taken from the box while it was in the defendant’s custody? . The court charged that the burden of proof was on the plaintiff to satisfy the jury on the whole case, that two bags of five thousand dollars each were delivered to the defendant, and that the defendant was liable for the gold, if the jury found that it was delivered to the purser on board and lost through negligence of the company or its agents, or by any other means not excepted in the bill of lading; to this proposition the defendant did not except; that theft by the purser is not barratry, and, if lost by such means, defendant is liable; and that the defendant is liable for diligence in keeping the gold while in charge of its agents at Curagoa before shipment on the Pico, and, if there lost by negligence of the company, defendant is liable; and that, the delivery of the gold being shown, the defendant is bound to account for it, and that, if they fail to show the loss by any one of the excepted perils, the defendant is liable.

The defendant excepted to . the refusal of the court to order a verdict for the defendant, and to the refusal of the court to charge that the defendant is not liable for any loss of the gold at Curagoa, unless negligence is shown on the part of itself or its agents, and that there was no proof of such negligence, and to the charge that theft by the purser is not barratry, and to the charge that the defendant was liable for theft by the purser: this is adopted as a correct statement of the facts.

4 Two points are presented for our consideration by this appeal, which are thus stated by the appellant’s counsel:

First■ — -Is the defendant liable under the bill of lading for theft by the purser?

Second — Is the defendant liable for loss of the specie while it was stored at Curagoa, in the absence of proof of negligence on its part.

In reference to the first question, we think that a reasonable construction should be given to the clause “theft on land or afloat,” and that it could not have been intended to exempt the carrier by that phrase from the theft committed by the purser placed in charge of the articles by the carriers. A contrary interpretation of the contract would, to a great extent, render the engagement of the carrier valueless. Indeed it may be said that if such a phrase should be held to relieve the carrier from the loss occasioned by such a theft as mentioned, it would be very easy by collusion with the purser to secure the possession and benefit of large amounts of property. If the carrier desired to absolve himself from liability by such a circumstance, he should make the terms of the contract clear beyond all cavil. In the case of Simmons v. Law (3 Keyes, 217), the condition of the bill of lading was “the property is to be delivered in like good order and condition at the port of New York, dangers of the seas, land carriage, and river navigation, thieves and robbers excepted,” and it was conceded by the defendant’s counsel in that case, and the view was concurred in by the court, that if the missing treasure was stolen by the servants of the carrier, the carrier would be responsible for the loss, notwithstanding the exemption of the contract. We regard this as an indication, if not an authority, on the question considered, and accept it as a just exposition of the law. We are entirely satisfied that the phrase “ barratry of masters and mariners,” does not include the purser of the ship whose duties and responsibilities are entirely different from either of the classes of persons designated.

In regard to the second question, the evidence shows that the specie, when landed at Curacoa, was placed in the custody of the defendant’s agents at that place. There was also some evidence bearing upon their negligence in caring for it while in their custody, and the question of negligence was submitted to the jury with proper instructions, and their finding upon that subject cannot be disturbed. We may add that the purser should be regarded as the fiscal agent of the owners, that is, of the company, and that his custody of the specie was their possession of it, the ship being only the vehicle or means of transportation, on board of which ho acts its custodian of the things placed ,in his charge. If, it may also be said, the specie was not stolen by the purser, there is no evidence to warrant the assumption that it was stolen by any other person; and this conclusion renders the defendants liable for the loss unless they prove that it was within one of the excepted perils. This was not done.

We think for these reasons the judgment should be affirmed.

Davis, P. J., and Ingalls, J., concurred.

Judgment affirmed.


text:
    WALLACE & SONS, a corporation created by and existing under the laws of the state of Connecticut, Respondent, v. SAMUEL A. CASTLE, HENRY S. MAGRANE and RUFUS E. HITCHCOCK, Applelants.

      Factor under del eredere commission — when Tie receives mmiey in a fiduciary . capacity.

    The fact that a factor to whom goods are consigned, is acting under a del eredere commission, does not necessarily destroy the fiduciary relation existing between himself and the consignor; and when in such a case he is in fact paid by the debtor, the money so received is the money of the consignor and not of the factor, and for a conversion thereof the latter is liable to arrest.
    Appeal from an order made at the Special Term denying a motion to vacate an order of arrest.
    This action was brought to recover certain moneys collected by the defendants on the sale of articles, sent by plaintiffs to them for sale on commission.
    The defendants claimed that an agreement had been made by which they were not to account for articles sold by them during each month until the twentieth of the succeeding month. An affidavit produced in behalf of the plaintiff stated:
    “ Deponent further says that on the ninth day of August, 1875, in pursuance of such agreement and understanding, he called on the defendants and requested the defendants to pay him the proceeds of whatever goods they had sold for the plaintiffs up to that time, and, on that day they gave deponent a check for $137^0, a part of such proceeds, and stated that .they had sold goods for andón account of the plaintiff for the value of $666 nf0, which amount had been collected by them.
    ‘ ‘ The next morning deponent again called and saw the defendant Castle, and said Castle then told deponent that unexpectedly something had happened after deponent saw him on the ninth day of August as aforesaid, and that it had compelled the defendants to suspend payment, and that therefore he could not make any more payments, and could not give deponent a check or pay the money as he had promised to do.

      “ Deponent then called on the defendant Magrane and told him that the defendant Castle had told deponent that he (Castle) could not pay the money they had collected for the plaintiff, and which they owed plaintiff, on account of the defendants having suspended payment. The defendant, Magrane, then said to deponent that the plaintiffs’ account ought to have been paid, and that he would have paid it if he had charge of the finances.
    “Deponent further says, that on the twelfth day of August, 1875, the defendants made, and at 3:35 i\ m. of that day filed with the clerk of the city and county of New York, an assignment for the benefit of their creditors, and deponent is informed and believes that their property will not pay more than twenty-five cents on the dollar. That an action has been commenced in this court in favor of the plaintiffs against the defendants upon the cause of action hereinbefore set forth, to recover the said sum of ¿666 f-0\ with interest from August 10th, 1875, and the defendants have all appeared therein, but no judgment has yet been entered therein.”
    The defendants claimed that nothing was due to the plaintiffs at the time of commencing the action, as the twentieth of August had not then arrived, and that as they sold under a del credere commission, they were not obliged to pay over the identical money received, and could not therefore be arrested for a conversion of it.
    The following is the opinion delivered at the Special Term by Barrett, J.:
    “In Ostell v. Brough (24 How. Pr., 274), it was held that a del credere commission (.loes not necessarily destroy the factor’s fiduciary relation. If he has actually received the proceeds of the sale, he is liable to arrest for a failure to pay them over. If, however, he has not received such proceeds and is sued upon his guaranty, he is not liable to arrest. The case was cited with approval in The German Bank v. Edwards (53 N. Y., 541), and in Duguid v. Edwards (50 Barb., 288.) The point, too, was there directly involved, while in Sutton v. DeCamp (4 Abb. [N. S.], 483), it appeared that the defendants 1 had not received any part of the proceeds of the sale.’ It is true that the principal must show himself entitled to the specific moneys collected • by his factor. (Liddell v. Paton, 7 Hun, 196; Morange v. Waldron, 6 id., 529.) But he has done this-when the relation of principal and factor is made out, and the burden is then upon the latter, if he would relieve himself from his ordinary responsibility of showing some special agreement or bringing home to the principal some course of dealing inconsistent with the strict relation (Duguid v. Edwards) above cited.
    “This brings us to a- consideration of the papers. Under the above test, the plaintiffs made out a clear case for an order of arrest. The defendants’ papers nowhere show any affirmative agreement giving them tile right to mingle the proceeds of the sales with their own moneys. They simply aver the absence of a special agreement to remit the identical moneys collected; but that, as we have seen, is implied, and it was for them to establish the converse. Nor do they show a custom to that effect, of which the plaintiffs had knowledge. True, the defendants remitted to plaintiffs from time to time, by checks upon a particular bank; but there is no evidence that plaintiffs knew that such checks were drawn against defendants’ general balance. Won constat, they believed that the checks were drawn against special deposits of the proceeds of the sale. As to the claim that credit was given until the twentieth of each*month following the sales, it might be sufficient to say that this was disposed of by the General Term, adversely to the defendants, upon the appeal from the order vacating the attachment. But it is quite evident upon all the proofs that no agreement was made upon the subject, and that it was a mere understanding to the effect that for mutual convenience plaintiffs’ agent would not calL from day to day for small sums (as collected), but would take then one lump sum upon the twentieth of each month. The right to call and collect from day to day, however, remained; this disposes of the main question. Mr. Dyett’s affidavit fully explains the application for the order to Mr. Justiee Donohue; and his action in so applying was perfectly proper. As to the objection that an attachment has been issued in the case, it appears from the opposing affidavits that so far the plaintiffs have realized nothing whatever thereupon. It Avould seem at the present time to be about as valuable a security to the plaintiffs as was the attachment in The People v. Tweed,
      when the motion in that case was made to vacate the order of arrest. The reasoning of the General Term in that case is applicable to and decisive of the point in question.
    “ The motion to vacate the order of arrest must therefore be denied with teu dollars costs.”

      Hart & Bamburger, for the appellants.

      A. It. JDijett, for the respondent.
   Brady, J.:

The opinion of Justice Barrett satisfactorily disposes of this appeal on the facts and the law. The defendant ivas a factor and although entitled to del credere commission his character ivas not changed. His responsibility and his compensation were enlarged but that was in fact and in law the only change accomplished by the agreement del credere. He guaranteed the payment of the sum for which the goods were sold, but his liability did not accrue until the purchaser failed to pay. In this case the payment ivas made and the contract of liability therefore, occurring through the del credere commission ivas not called into existence.

The relation of factor continued Avith all its obligations and burdens. The money received Avas the plaintiff’s money and not the defendant’s. It came from the plaintiff’s debtor and should have been paid to the plaintiff as his fund, whatever its amount, less the commissions earned. The identical money received was-therefore the property of the plaintiffs. (See Duquid v. Edwards, 50 Barb. Rep., 297, cited by Judge Barrett.)

Order affirmed Avith ten dollars costs and disbursements of this appeal.

Davis P. J,, and Ingalls. J., concurred.

Order affirmed Avith ten dollars costs and disbursements.


text:
    DANIEL E. SICKLES, and others, Respondents, v. BENJAMIN RICHARDSON, impleaded with others, Appellants.

      Extra allowance — when suljeet of action has money value.

    This action was brought to have 3,574 bonds of a railway company, which were in the hands of the defendant, declared invalid and void and to have them delivered up and cancelled. The defendant claimed that they were valid, but offered to surrender 2,974 upon receiving $50 per bond, which he claimed to have paid for them, and interest from the time of purchase. The court decided that plaintiff was. entitled to the relief demanded in the complaint, and granted an extra allowance of $2,000.

      Eeld, that there was sufficient evidence as to the value of the subject of the action to authorize the allowance, and that the order granting it should be affirmed.
    Appeal from an order of. the Special Term granting an additional allowance of $2,000.

      Dexter A. Hawkins, for the appellants.
    There was no recovery in this action of anything of value, and none was asked for in the complaint. There is no money basis on which to calculate a percentage; it is a case in respect to which there is no provision made by law for an allowance. {Spofford v. Texas Land Co., '41 Supr. Ct. R., 228 and 231; Coates v. Goddard, 34 id., 132; People v. The A. & Susq. P. P. Co., 5 Lans., 36; Coleman v. Chauncey, 7 Robt., 578; At. Dock Co. v. Libby, 45 N. Y., 499; O. & L. C. P. P. Co. v. V. é C. P. P. Co., 63 id., 179; People v. The N. Y. & S. L Ferry Co., N. Y. Weekly Digest, Yol. 4', page 10.

      Flihu Poot, for the respondents.
    There was a subject matter involved in the case having a money value, upon which an allowance may be properly computed. The value of the property to be directly affected by the result of the action affords a proper basis for' computing a percentage. (The People v. Albany dé Vermont P. P. Co., 16 Abbott, 465; The People v. Ff. Y. & 8. I. Ferry Co., 7 Him, 105; Ogdensburgh & L. C. R. R. Co, v. Vt. & Car. R. R. Co., 63 N. Y., 176.) It was suggested by counsel for defendant below, that because the $3,574,000 in bonds held by Richardson, had been declared void, there is no property which is the subject of this litigation and therefore there is no basis to compute an extra allowance. The answer is very plain. The question in the action ivas whether they were property or not, and the whole value of the bonds or of the property they would have controlled had they been held valid, was the subject matter involved in the action. (Gomins v. Supervisors of Jefferson, 3 T. & C., 296; Same case, 64 N. Y., 626.)
   Brady, J.:

The action was brought for the purpose of having 3,574 bonds of the Chicago, Saganaw and Canada Railway Company in the possession of the defendant, Richardson, declared invalid aud void.

The complaint, after reciting the facts, demanded judgment, declaring these bonds void, and perpetually enjoining the trustees of the mortgage, under which the bonds. purported to have been issued, from recognizing the validity of such bonds, and perpetually enjoining the defendant, Richardson, from selling, pledging, issuing, delivering or disposing of, or parting with the said bonds in any way, and further that they should be delivered up and cancelled. The learned justice at Special Term, arrived at the conclusion that the plaintiff was entitled to the relief demanded, aud the effect, of this result was that the bonds were pronounced invalid, and therefore valueless.

The defendant Richardson substantially maintained the validity of the-bonds and claimed to have a lien upon them, but offered to surrender 2,974 of them upon receiving $50 per bond, which he alleged he paid for them, together with interest from the time of the purchase at the rate of seven per cent.

The question involved by the issues presented, was whether these bonds were legally issued or not, and necessarily involved the question of their value; because if held to be valid, they were binding obligations upon the 'company. If they had been held valid that finding would have furnished a basis of value of which an allowance to the defendants could be predicated. It is evident indeed that the bonds claimed by the defendant Richardson were regarded by him as property, and would have been so held by him, unless declared otherwise by some court of competent jurisdiction.

Under these circumstances we think there was sufficient evidence on the subject of value to warrant the allowance made, which considering the magnitude of the controversy is not at all unreasonable. (See Comins v. The Supervisors of Jefferson, 64, N. Y., 626.)

Davis, P. J., concurred in the result. •

Present — Davis, P. J,, Brady and Ingalls, JJ.

Order affirmed.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRANCES WHEELER, v. DELILAH L. SHORB, Respondent.

      Landlord and tenant — when relation exists — when it maybe created between assignor and assignee of a lease.

    One Shorb, who was the owner of a lease of certain premises for the term of three years, the 'rent being payable quarterly, executed an instrument by which she assigned the whole of the said term to one Wheeler; the instrument contained a clause as follows: “ Provided always that the said Frances Wheeler, her executors, administrators and assigns shall pay monthly in advance to me, said Shorb, the rent secured by the terms of said lease, which the said Frances Wheeler, by the acceptance of this assignment, promises and agrees to do.”

      Held, that by the instrument the relation of landlord and tenant was created between Shorb andWheeler, and that upon the failure of the latter to pay the monthly rent, she could be dispossessed in summary proceedings.
    Certiorari to review the determination of the justice of the Sixth District Court of the city of New York, made in proceedings taken by the respondent as landlord, under the landlord and tenant act, to dispossess the relator as tenant of premises No. 91 Fifth avenue.
    The respondent on November 4, 1876, was in possession and occupancy of said premises under a lease from George Griswold for a term ending May 1, 1879. On 4th November, 1876, Shorb made and delivered to Wheeler an instrument, which appears to bo on its face, an absolute assignment by Shorb of the residue of her term, but which instrument contained the following clause: “ Provided always that the said Frances "Wheeler, her executors, administrators and assigns, shall pay monthly in advance to me, said Shorb, the rent secured by the terms of said lease, which the said Frances Wheeler, by the acceptance of this assignment, promises and agrees to do.” Under this instrument, Wheeler went into possession of said premises. These proceedings were instituted to dispossess Wheeler for non-payment of rent, due September 1, 1877, which, by the terms of said instrument, was payable by Wheeler to Shorb, for the use of said premises.

      John T. McKenzie, for relator.

      George II. Adams, for respondent.
   Brady, J.:

The question we are called upon to consider in this case is whether by the instrument under which the - parties respectively claimed possession, the relation of landlord and tenant existed between them. The respondent assigned the lease granted her by George Griswold, her lessor, by proper phrase and covenant to accomplish that purpose, and then covenanted to pay the rent reserved by the lease in the manner and form therein expressed, “ Provided always that the said Frances Wheeler, her executors, administrators and assigns, shall pay monthly in advance to mo, said Shorb, the rent secured by the terms of said lease, which said Frances Wheeler, by the acceptance of this assignment, promises and agrees to do.” The rent reserved to bo paid to the lessor, was by the lease divided into quarterly payments, but this same rent was, it will have been perceived, to be paid by the relator to the respondent in monthly payments in advance. It is quite important to note, as the evidence shows, that the parties themselves treated the agreement as a letting for the whole term; the relator paying and the respondent receiving the monthly payments provided for as rent; and this fact develops clearly the intention of the parties by the paper executed and the understanding by them of its effect. The relator covenanted to pay the rent monthly in advance, and the respondent, that being done, was obligated to pay it to her lessor. The design of the agreement was doubtless to protect the respondent from the payment of the rent out of her own money, by requiring it to be paid monthly in advance, a process by which when the quarter day arrived she would be in funds to meet the covenant in her lease requiring the payment of the rent reserved. The arrangement was perfectly consistent with the assignment which it qualified and for the reason assigned. It is not necessary perhaps to suggest that in order to ascertain what relation was created between the parties by the so-called assignment, the whole instrument must be considered; all its provisions being construed with regard to each other. We have arrived at the conclusion, upon due- deliberation, that the relation of landlord and tenant existed between the relator and respondent, and that the proceeding to dispossess was therefore well founded. There is no other question requiring particular examination. We thinlc the writ should'for these reasons be dismissed, and the proceedings reviewed affirmed in all things.

Davis, P. J., concurred; Ingalls, J., not sitting.

Writ dismissed; proceedings affirmed.


text:
    FREDERICK B. WENDT, as Executor, etc., Appellant, v. JOHN F. PEYSER and others, Respondents.

      Verification of answer —where defendants severally interested, answer together.

    A copy of the summons and a verified complaint were served upon two of the defendants herein, and an unverified complaint on the third. The defendants served an unverified joint answer.

      Held, that as their interests were several this could not be done, and that the two defendants upon whom the verified complaints were served must serve verified answers.

      Appeal from an order directing the plaintiff' to treat the answers of the defendants, John F. Peyser, Henry M. Peyser and ■Julia H. Cracaner, as sufficient.

      Chas. Wehle, for appellant.

      Scudder ffi Carte.r, for respondents.
   Brady, J.:

The nature of this action is such, that we do not discover any particular necessity for exacting from the defendants, the respondents herein, a verified answer. The action is one brought, it seems, for the construction of a will, and the defendants, the respondents, are alleged to have some interest in the estate to which it relates. It appears, however, that the copies of the complaint served upon Henry M. Peyser and Julia H. Cracaner were properly verified, and that the copy served upon John F. Peyser, or obtained for him through the instrumentality of his attorney, was not verified. The Code of Civil Procedure, section 525, declares that the verification must be made by the affidavit of the party, or if there should be two or more parties united in interest and verifying together, by at least one of them, who is acquainted with the facts, except in certain cases, of which this is not one. A section similar to this in the Code of Procedure (section 157) was interpreted in the case of Gray v. Kendall, by the General Term of the Superior Court (10 Abb., 66), and they declared that when the Code requires the verification to be made by the affidavit of the party, it required the affidavit to be made by every party who united in the pleading and whose interest was several, and that if that was not done, the adverse party could not be required to treat it as a pleading verified according to the provisions of the Code. We think this view of the subject is correct, and that an unverified answer could not pi’operly be served to the verified complaint herein, the interest of the defendants being several. The result is that the plaintiff was entitled to a verified answer from the defendants Henry M. Peyser and Julia H. Cracaner.

The order appealed from is therefore erroneous, and must be reversed, so far as it affects the defendants last named. We think, however, that they should have an opportunity to answer, and the time should be extended for that purpose twenty days after the entry of this order; and that no costs should be awarded on this appeal to either party.

Davis, P.J., and Ingalls, J., concurred.

Order reversed without costs to either party.


author: Beady, J. :

text:
    FRANCIS H. TAYLOR, Plaintiff, v. EUSTIS SURGET, Defendant.

      Promissory note— title to— transfer after death of payee — what must be shown to establish.

      ■ Upon the trial of this action it appeared that the note upon which it was brought was payable to the order of one Norton, and that it remained in his possession, with his name written on its back, up to the time of his death; that his executor transferred it to the plaintiff after its maturity, without indorsing it, and without receivinar any consideration for it.

      Held, that the plaintiff had no title, either legal or equitable, to the note, and that the complaint was properly dismissed.
    ' Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a dismissal of the complaint at the circuit.
    The action ivas brought upon a promissory note. The complaint was dismissed on the ground that the plaintiff had no title to the note. ’

      Samuel Boardman, for the plaintiff.
    The indorsement of the note by the payee having been admitted by the defendant on the ■trial, the possession of the note by the plaintiff, and the introduction and reading thereof by him in evidence was prima facie proof that it had been delivered to him, that he was the owner thereof and had a right to recover thereon. (Dean v. lleioett, 5 Wend., 257; Seeley v. Engell, 17 Barb., 530; James v. Chalmers, 6 N. Y. [2 SeldcnJ, 209; Case v. Mech. Bank Ass., 4 N. Y. [Corns.], 166; First Fíat. Bank v. Green, 43 N. Y., 298; Wiltsee v.
      JTortham, 5 Boswovth, 421-28; Brown v. Ponfield, 36 N. Y., 473,,4-5; Bedell v. Oarü, 33.N. Y., 581; Westerveltv. Allcock, 3 E. D. Smith, 243; Barlote v. Meyers, 64 N. Y., 41-6.)

      John B. Ward, for the defendant.
    Plaintiff has no title to the note sued on, which will enable him to maintain the action. Under the provisions of the Code, every action must be prosecuted in the name of the real party in interest. (Code, § 111; Killmore v. Culver, 24 Barb., 656; Lord v. Cheeseboro, 4 Sand., 696; Parkerson v. Totten, 10 How. Pr., 233; While v. Broten, 14 How. Pr., 282.) Even under the provisions of the common law, the note sued on being the property of the payee, Norton, at the time of his death, the title passed to his executors, and could only have been transferred to the plaintiff by their indorsement and delivery. Indorsement by the payee in his lifetime, and delivery by the executor after his death, without the indorsement of such executor, gives no title upon which the plaintiff can maintain an action. (Bromage v. Lord,' 1 Exch., 32; Clark v. Sigourney, 17 Conn., 511; Clark v. Boyd, 2 Ohio, 56; Michigan Ins. Co. v. Leavenworth, 30 Vermont, 11; Parsons on Notes and Bills, vol. 1, chap. 5, 159; Story on Prom. Notes, § 120 to 123; Story on Bills, § 195.)
   Beady, J. :

The note in controversy was payable to the order of Captain Aleck Norton, and was at its maturity in his possession, where it continued down to the time of his death. It then formed a part of his estate.. It was transferred by his executor to the plaintiff in tins suit, by delivery, and without indorsement. There was no consideration paid for it, and, the plaintiff was a stranger to the executor. It is very apparent that the transfer was made for the purpose of prosecuting the note, and that the plaintiff to whom it was transferred received it for that purpose. He failed to show any legal title to the note, because of the manner in which it was transferred. He also failed to show any equitable title, because there Avas no proof that he parted with any consideration for it. On the contrary, the evidence tends to show quite strongly that he paid nothing. ■ Under such circumstances' the complaint was properly dismissed. (Clark v. Phillips, 21 How., 87.) Although the case of Brisbane v. Pratt (4 Denio, 63), may lie regarded as overruled by the cases of James v. Chalmers (6 N. Y., 209); Seeley v. Engell (17 Barb., 534), and Smith v. Schank (18 Barb., 344), and the possession of a note may be presumptive evidence of ownership, the presumption can be overcome, and is overcome when the evidence shows that no consideration was paid for it.

The motion for a new trial should be denied, and judgment' ordered for the defendant on the dismissal.

Davis, P. J., and Ingalls, J., concurred.

Motion for new trial denied; judgment ordered for defendant.