text:
    CLINTON GILBERT and JAMES MARSH, Executors, etc., of JAMES MARSH, Sr., Deceased, Appellants, v. MARY S. MARSH, Executrix, Etc., of WALTER R. MARSH, Deceased, Respondent.

      Collateral securities — neglect of creditor to enforce — debtor not released by.

    Mere neglect on the part of a creditor in collecting securities, held by him as collateral to a debt, will not release the principal debtor.
    Appeal from a judgment in favor of the defendant entered on the verdict of a jury, and from an order denying a motion for a new trial.

      George P. Avery, for the apppellants.

      Field <& Deyo, for the respondent. .
   Daniels, J.:

The action was prosecuted to recover the amount unpaid on a promissory note made by the defendant’s testator to the testator of the plaintiffs. There was no doubt as to the liability on the note if it had not been paid, and payment was only claimed to have been made by means of other notes, made by another person and secured by his mortgage upon real estate in the State of Tennessee, which were received by the plaintiffs’ testator during his lifetime. This defense was controverted by the plaintiffs, who insisted that, the other notes and mortgage were received only as security for the payment of the note made by the testator of the defendant, and the evidence in the case rendered the question so presented a proper one for the consideration of the jury. In the charge of the learned justice presiding at the trial that was very properly and clearly submitted to them for their consideration. But after its delivery he was requested by the counsel for the defendant to charge, “ that if the plaintiffs were guilty of negligence in collecting the notes and mortgage ” they could not recover ,* and in response to that proposition the learned justice stated that he should “ leave it to the jury to say, whether the evidence established that there has been negligence on the part of the executors of James Marsh in collecting these notes; ” and to that the plaintiffs’ counsel excepted. This exception was clearly well taken. The jury could very naturally, and probably did infer from what was said to them responsive to this request that neglect in that respect, on the part of the plaintiffs, would constitute a defense; and in the condition of the evidence on the other point that may very well have been the cause of the verdict which they rendered in favor of the defendant.

The position taken was wrong for several reasons. No evidence had been given tending to establish such a defense, and it had not been alleged in the answer. In addition to that the proposition itself was unsound, for mere neglect on the part of the plaintiffs in collecting the collaterals was not a defense against the principal demand. No authority has extended as far as that. The most that has been held, is that the surety may be exonerated by the neglect of the creditor only when he has been requested to proceed and collect the securities held by him by means of legal proceedings; and his negligent failure to do so afterwards has resulted in injury to the surety in consequence of their depreciation, or loss. (Pain v. Packard, 13 Johns., 174; Fulton v. Matthews, 15 id., 433; Singer v. Troutman, 49 Barb., 182; Black River Bk. v. Page, 44 N. Y., 453; Wells v. Mann, 45 id., 327.) The request made and substantially charged failed to bring the proposition submitted within these authorities. And even if it had been alleged as a defense and proved by the evidence it could not, for that reason, be allowed to prevail. The judgment should be reversed and a new trial ordered, with costs to abide the event. And as that renders it unnecessary to consider the appeal from the order, that may be dismissed without costs.

Davis, P. J., and Brady, J., concurred.

Judgmen reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Danisls, J.:

license: Public Domain

text:
    MARY C. KINNEY, Respondent, v. GEORGE SCHMITT and CHRISTIAN KOEHNE, Appellants.

      Guaranty — Marilcs in — when filling m of, not a material alteration — when authority to fill in blanks presumed.

    Tlie defendants executed tlie following instrument, written upon the back of a lease given by the plaintiff to Francis X. Sehwer : “In consideration of the letting of the premises above mentioned to <rhe above-named Francis X. Sehwer, and of tbe sum of one dollar to me paid by the said party of the first part, toe do hereby covenant and agree to and with the party of the first part above named, and by her legal representatives, that if default shall at any time be made by the said Francis X. Sehwer in the payment of the rent and performance of the covenants above contained on his part to he paid and performed, that we will well and truly pay the said rent, or any arrears thereof,” etc. At the time of its execution inplace of the italics were blanks, which were subsequently filled in by plaintiff.
    In an action upon it, the defendants claimed that the insertion of these words constituted a material alteration and rendered the agreement void. Held, that, even without the insertion of these words, the instrument was sufficiently complete to disclose the facts, that it was intended that the defendants should become liable upon it for the payment of the rent and that they subscribed it ‘ for the purpose of assuming that obligation, and that as the filling in of the blanks in no way enlarged or extended it, the additions were not material and the validity of the instrument was not affected thereby.

      Semble, that from the intention of the parties and the fact that appropriate spaces were left for the words inserted, and they were simply useful for the purpose of fully expressing what was reasonably clear without them, authority for the plaintiff to fill them would be presumed.
    Appeal from a judgment in favor of tbe plaintiff, entered npon a verdict directed by tbe court.

      F. G. Salmon, for tbe appellants.
    Tbe alterations were alterations in material, particulars, and tbe instrument, when signed by tlie defendants imposed no liability upon tliem. Tbe agreement, under tbe statute of frauds, must be in writing. Tbe writing must, on its face, express a consideration and tbe whole terms of tbe contract. Nothing lacking in these particulars can be supplied by parol no matter what was originally tbe intention of the parties. (Galkens v. Fttlk 1 Abb. Ct. App. Oases, 291; Wright v. Weeks, 25 N. Y., 153, 159; Dams v. Shields, 26 Wend., 311; Wright v. Weeks, 25 N. Y., 160 ; Warn y. Walters, 5 East, 10; Abeel v. BadóUffe, 13 Johns., 297; Dodge y. Lean, id., 508 ; Baptist Chwreh y. Bigelow, 16 Wend., 30; Merrit v. Glasson, 12 Johns., 102; Bogert y. ■ Ogdens, 3 id., 399, 119.)

      Chas. Meyer, for the respondent.
   Danisls, J.:

The judgment in this case was for the rent unpaid upon a lease given by the plaintiff for the store and basement in the building known as 79 Cedar street. The lease was for one year at the annual rent of $3,500, payable in monthly installments on the first day of each month, which the tenant covenanted well and truly to pay. By the terms of the agreement entered into the tenant, Francis X. Schwer, was to furnish security for the payment of his rent and the performance of his covenants, and for that purpose the defendants executed a guaranty indorsed upon the lease, at the time when it was subscribed by the landlord and the tenant.

The defense relied upon at the trial on behalf of the defendants, who were the sureties, was that the guaranty had been materially altered after its execution. The alterations alleged consisted of the filling up of blank spaces claimed to have been left in the contract of guaranty when it was subscribed by the defendants. Whether they were so filled up or not was a controverted matter of fact upon the trial. But as the court declined to submit that point to the jury and directed a verdict in the plaintiff’s favor, the defendants are entitled to the presumption that the blanks were filled up after they had subscribed the instrument, for under the evidence the jury might have found on that subject in their favor. The agreement which they subscribed and which at the time was indorsed upon the lease was in the following form, except the words printed in italics -:

“ In consideration of the letting of the premises above mentioned to the above-named Wra/neis LL. Sehwer, and the sum of one dollar to me paid by the said party of the first part, we do hereby covenant and agree to and with the party of the first part above named, and Toy her legal representatives, that if default shall at any time be made by tbe said Francis X. Schwer in tbe payment of tbe rents and the performance of tbe covenants above contained, on his part to be paid and performed, that we will well and truly pay tbe said rent, or any arrears thereof, that may remain due unto tbe said party of tbe first part, and, also, all damages that may arise in consequence of tbe non-performance of said covenants, or either of them, without requiring notice of any such default from tbe said party of tbe first part.

Witness oivr band and seal, this twenty^ninth day of Ma/rch, in tbe year of our Lord one thousand eight hundred and —.”

SCHMIDT & KOEHNE. [l. s.]

Witness:

Wm. H. Butler.

They and no others were what was alleged to have been inserted after tbe execution, and because of their insertion it is insisted that tbe court erred in directing a verdict for tbe plaintiff. But without thorn tbe instrument was sufficiently complete to disclose tbe facts that it was intended that tbe defendants should become liable upon it for tbe payment of tbe rent and tbe performance by tbe tenant of tbe covenants contained in tbe lease, and that they subscribed it for tbe purpose of assuming that obligation. And as tbe filling of tbe blanks in no way enlarged or extended it tbe court could very well bold that the additions made were, in no legal sense, material. (People v. Muzzy, 1 Denio, 239.)

But even if that were otherwise, from tbe intention of tbe parties and tbe facts that appropriate spaces were left for tbe words inserted and they were simply useful for tbe purpose of fully expressing what was reasonably clear- without them, it was to be presumed that tbe plaintiff or her agent might be conceded tbe authority to fill them.

Tbe rule on this subject which has been well established concerning commercial paper, is that it may at delivery be left entirely blank above tbe signature, or in tbe form of an ordinary printed bill or note with tbe material parts in blank, and tbe spaces may be filled in with any date, time of payment, amount, place of payment or payee, provided this be done consistently with tbe legal import or tenor of tbe form signed or indorsed. And to that extent it has been, abundantly sustained by the authorities. (Russell v. Langstaffe, Doug., 514; Orick v. Colston, 7 Grat., 189; Douglas v. Scott, 8 Leigh, 43 ; Fullerton v. Sturges, 4 Ohio [N. S.], 529 ; Bank of Com. v. Curry, 2 Dana, 143; Huntington v. Bank, 3 Ala., 186 ; Norwich Bk. v. Hyde, 13 Conn., 279 ; Ives v. Bank, etc., 2 Allen, 236 ; Collis v. Emmett, 1 T. & Black., 313; Visher v. Webster, 8 Cal., 109 ; Spiller v. James, 32 Ind., 202; Violett v. Patton, 5 Cranch, 142 ; Mitchell v. Culver, 7 Cowen, 336; Michigan Bk. v. Eldred, 9 Wall., 544.) The authority arises out of the form of the instrument to which the signature of the party has been attached and the object to be accomplished by subscribing it, and no good reason exists for excluding that which the defendants gave from the operation of this rule. By subscribing as they did, and for the object which was at the time understood, they practically authorized the blank spaces to be supplied with the words which the context indicated to be proper. They were so supplied, and after what had transpired the defendants could not, with any legal propriety, be allowed to deny the validity of the instrument subscribed "by them because of its formal completion which was all that, in any view, can be affirmed to have been done. The judgment appealed from should, therefore, be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Daniels, J.:

text:
    H. S. HAGAR and others, Respondents, v. JOHN H. CLARK and SAMUEL H. SEAMAN, Appellants.

      Charter-pan'ty — when construed as leing a contract of affreightment, and when as one f<yr thehvre of a vessel.

    Tile plaintiffs, the owners of a steamer, entered into an agreement with the defendants, to the following effect: The plaintiffs freighting and chartering to the defendants all the vessel except the necessary room for crew, provisions, sails and cables, for a voyage from New York to New Orleans and return, the. vessel to be tight and fitted for the voyage, and to receive goods and merchandise from defendants and no one else; the defendants to furnish such cargo as they saw proper and to pay for the use of the vessel $7,000 and all expenses; the time allowed for lading was specified. The cargo was to be received and delivered within reach of the vessel’s tackles. In case of an accident to the machinery, whereby the vessel was detained, the plaintiffs were to pay the expenses of repairs, victualing and manning.

      Helclt that the contract was not a contract of affreightment, but that by it the defendants hired the vessel and had entire control of her during the voyage.
    That the exception of the necessary room for the crew, provisions, sails and cables being made, not for the benefit of the plaintiffs, but for such uses as were required in the navigation of the vessel, was not inconsistent with such construction nor was the provision that the cargo should be delivered within reach of the vessel’s tackle (seemingly inconsistent with defendants’ exclusive control) sufficiently decisive to change it.
    During the voyage the boiler gave way through the negligence of the engineer in allowing the water in it to get too low. This action was brought to recover a portion of the $7,000 stipulated to be paid, and damages for the demurrage caused by the failure of the boiler. Held, that, as under the proper construction of the contract, the engineer was the defendants’ servant they were responsible for the delay caused by his negligence.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tlie report of a referee.
    This action was brought to recover damages alleged to have been caused by a breach of the following agreement:
    “This charter-party, made and concluded upon in the city of New York the 27th day of July, in the year of our Lord eighteen hundred and sixty-five, between J. P. Mantón, agent for owners of the steamer H. S. Iiagar of New York, of the burden of 1,113 tons or thereabouts, register measurement, now lying in the harbor of New York, of the first part, and Messrs. II. B. Cromwell & Co., merchants of New York, of the second part, witnessetli: That the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the necessary room for the crew and stowage of provisions, sails and cables)' or sufficient room for the cargo hereinafter mentioned, unto the said party of the second part, for a voyage from New York to New Orleans and back to New York, on the terms following: The said* vessel shall be tight, staunch, strong and in every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchandise hereinafter mentioned, and no goods or merchandise shall be laden on board, otherwise than from the said party of the second part or their agent. The said party of the second part doth engage to provide and furnish to the said vessel such cargo of lawful merchandise as they may see proper, and to pay said party of the first part or agent, for the use of said vessel during the voyage aforesaid, seven thousand dollars for the voyage and all expenses, including stevedores’ bills, officers’ and crew’s wages, stores and supplies, coal and every thing requisite for the voyage, also levee dues, wharfages, health bills, port charges, pilotages, and every thing pertaining to the voyage, including government tax, leaving a net sum of seven thousand dollars to the owners, payable as follows: Three thousand dollars on discharge of the cargo at New Orleans and the balance, four thousand dollars, on discharge of the cargo at New York. It is agreed that the lay days for loading and discharging shall be as follows: Commencing from the time the captain reports himself ready to receive or discharge cargo. Yessel to be ready to receive cargo on the thirty-first July, and to sail on the second August, to sail from New Orleans within seven running days from arrival there, and to be discharged within three running days from arrival in New York, exclusive of Sunday, and that for each and every day’s detention by default of said party of second part or agent two hundred and fifty dollars per day, day by day, shall be paid by said party of second part or agent to said party of the first part or agent. The cargo or cargoes to be received and delivered within reach of vessel’s tackles at ports of loading and discharging. In case of accident to machinery, whereby vessel is detained for repairs, the actual expenses, including victualing and manning thereby incurred, are to be paid by owners. To the true and faithful performance of all and every of the foregoing agreement, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators and assigns, each to the other, in the penal sum of seven thousand dollars.

      “ In witness whereof we hereunto set our hands the day and year first above written.
    “ (Signed) JOS. P. MANTON,

      “Agent StecmHivp H. S. Hagar.

    ’ “H. P. CROMWELL & CO.”
    “ Sealed in the presence of

      The plaintiff sought to recover the $4,000 stipulated to be paid upon the discharge of the cargo at New York, and damages for delay in returning the vessel.

      John JE. JPwsons, for the appellants.

      John T. Wasliburn, for the respondents.
   Daniels, J.:

The judgment appealed from was for the amount held to be due upon a charter-party, made on the twenty-seventh day of July, 1865, for a voyage of the steamer Ha,gar from New York to New Orleans and back. The defendants resisted the recovery because of the failure of the boiler of the steamer soon after she entered upon the voyage, by reason of which she was delayed in reaching New Orleans for so long a period of time as to render them unable to obtain for her a remunerative return cargo. The foundation of the claim was that the charter was merely a contract for affreightment, and that the responsibility for the delay -was legally upon the plaintiffs as the owners of the steamer. But the referee held otherwise and that the steamer was hired to and navigated by the defendants, and for that reason the loss occasioned by the delay must be borne by themselves. This delay and consequent loss arose out of what the learned referee in his report held to be an accident; but in the further findings added upon the settlement of the case, it -was stated: “ That the cause of the giving way of the boiler of the Hagar, was the negligence of the engineer on watch at the time in allowing the water in the boiler to get too low.” It has been urged that this was inconsistent with the statement made in the report attributing the injury to an accident. But it is not very material to inquire whether this criticism is well founded or not, for if the fact was that the boiler gave way because of the negligence of the engineer on watch at the time, the responsibility for the delay created by that circumstance would still bo upon the defendants if he was their servant in their employ, as he was, if they possessed and navigated the steamer. This conclusion, as it was last stated, was supported by the evidence, and for that reason it is not necessary to consider the effect of the presumption arising as to the unseaworthy character of a vessel disabled, without any other apparent cause, within a few hours after she may have commenced her voyage. The steamer was a new one, having been in use less than one month before she was chartered to the defendants, and the evidence was sufficient to show that she was then tight, staunch, and strong, and in every way fitted for her voyage, as the charter required her to be when that instrument was executed. And the referee, upon this evidence found that to be her condition. The important point, therefore, in the case is the nature of the agreement which was entered into for her use. It contained no terms of demise, such as are often used in charters letting the vessel, and her control to the charterer. But that omission is not decisive of the case, for without such terms there may be a complete letting of a vessel, and the transfer of her exclusive possession to the charterer, where that still appears to be the intention of the parties as it may be gathered from the terms of their agreement. (Saville v. Campion, 2 Barn. & Ald., 503.)

But it has been strenuously maintained that no such disposition was made of this steamer, because of the existence of a clause in the charter excepting from the right to use the whole of her for freighting purposes, “ the necessary room for the crew and storage of provisions, sails and cables.” That exception, however, was not made in a form reserving that room to or for the plaintiffs. But it was simply for such uses as were required in the ordinary and proper navigation of the steamer, and for the benefit solely of the persons exercising that control over her during the prosecution of the contemplated voyage. There was no serious inconsistency in its 'existence with the fact that the management and possession of the steamer was at the same time designed to be given to the defendants. And it has been so held in other cases that are regarded as sound authority upon this subject. (Trinity House v. Clark, 4 Man. & S., 288; Sherman v. Fream, 30 Barb., 478; Christie v. Lewis, 2 Brod. & B., 410.)

This is a circumstance from which, with others when they exist, it may be inferred that the navigation and control of the vessel have been retained by her general owners, but it has in no instance been alone considered as conclusive. In the case of Clarkson v. Edes (4 Cow., 470), which has been regarded as an important authority in cases of this description, tlio vessel was, by tlie terms of tlio charter to be kept tight, strong, well manned, victualed, and appareled by tlie owners during the voyage. And it was for this reason combined with the reservation of sufficient room for the promotion of those purposes, that the agreement was held to be only a contract for affreightment. The same construction, for .similar reasons, was given to the charters made in the cases of Marcardier v. Chesapeake Ins. Co. (8 Cranch, 39); Donahoe v. Kettell (1 Clifford, 135}; and Leary v. United States (14 Wallace, 607). In each instauce the general owners stipulated to keep the vessels chartered in proper sailing condition, and also for a suitable reservation of room for tlieir own convenience and that of tlieir crew during the voyage. The controlling stipulation was considered to be that which bound them to keep the ship in proper sailing order, and competent for tlio transaction of the business to be done by her. (Fenton v. Dublin, etc., Co., 8 Ad. & E., 835.) And the reservation of the room was merely subsidiary, or incidental to the performance of that obligation.

In the present instance no such duty was, in any form, imposed upon tlie plaintiffs as the general owners of the steamer. They merely agreed that she should be tight, staunch, and strong, and in every way fitted for such a voyage. And that part of their agreement they performed by delivering her in that condition to the defendant. They did not bind themselves to keep her in that condition, but merely that she should be so at tlie time when they surrendered her for the performance of the terms of the charter. What they agreed in terms to do, was to charter the whole of the vessel, or sufficient room, subject only to the exception already stated, for tlie cargo afterwards mentioned. And that was such a cargo of lawful merchandise as the charterers might deem it proper to laden her with. In that respect tlie charter differed from tlie one which was before the court in the case of Hooe v. Groverman (1 Cranch, 124), where the charterers simply had the use of the whole tonnage of tlie vessel; while here they had the whole of the steamer for whatever lawful cargo they chose to lade her with, except that required for the convenience of the crew and the stowage of provisions, sails and cables, and even that was also necessarily enjoyed by them for those purposes. Besides, they were to, and in fact did pay all the expenses beyond the sum of $7,000, which was the stipulated amount of the charter, “including stevedores’ bills, officers’ and crew’s wages, stores and supplies, coal, and every thing requisite for tiie voyage; also levee dues, wharfages, health bills, port charges, pilotages, and every thing pertaining to, the voyage, including government tax, for the use of said vessel during the voyage.” And the only obligation to which the charter in this connection in terms subjected the plaintiffs, was that of paying the expenses of repairs rendered necessary by accidents to the machinery of the steamer, and which she should be actually detained in obtaining; and those of victualing the crew for the same time. All other expenses were to be borne by, and were made debts of, the defendants, who could olaee upon her such lawful cargo as they saw proper to the utmost extent -of her carrying capacity. And no freight whatever was reserved or payable to the plaintiffs for it beyond the $7,000 which, aside from the allowance for demurrage, was the stipulated price of the charter. Thfese circumstances are exceedingly significant, and much more consonant with a complete hiring and control of the steamer, than with a mere contract of affreightment. No good reason can be perceived for binding the defendants to pay all the navigating and harbor expenses,, unless they were intended to have the possession, management and direction of the vessel. And then, in making such payments they would simply discharge their own obligations, created solely for the transaction of their business, the extent of which must have been entirely unknown when the charter was executed.

The case cannot be affirmed to be a clear one against the defendants, but enough appears to render it reasonably certain that it was the intention of the paifies in making the charter that they should have the possession, control and direction of the steamer for the time mentioned in it. The governing point in the determination of this class of cases has been considered to be whether there has been an entire letting, or parting with the possession of the ship, so that during the voyage, the absolute owner has surrendered his control over her. If such possession has been agreed upon (and that seeing to have been done in this instance), then the charterer receiving her under the agreement must be considered her owner for the stipulated employment. (Christie v. Lewis and Leary v. United States supra ; Gracie v. Palmer, 8 Wheaton. 605.)

It lias been urged, that as tlie steamer bad lier officers employed, and on board at the time of the charter, that this circumstance oi itself showed that the plaintiffs were to supply the crew. But the case last referred to holds that to be an unimportant fact. For the steamer could as well be transferred to the possession of the defendants with a complete crew already on board, as though its members ■were to be afterwards wholly employed by the charterers. (Id., G83.)

The evidence very directly tended to show, and the referee found from it, that in point of fact, the possession of the steamer with her officer son board was turned over to, and accepted by, the defendants. The agent acting for them in the procurement and execution of the charter, distinctly testified to the existence of those facts. And the residue of the crew were either employed by the defendants or the officers on board the steamer, acting for them after that time. She sailed under their direction, and received such merchandise for transportation as they could obtain for her. And they were in no respect interfered with by the plaintiffs. Their acts under the charter were consistent with the existence of no other intention than that they were to, as they did, have possession of the steamer during its continuance. And that, in a case of doubtful construction, is a circumstance of importance in ascertaining and determining the design governing the parties in the making of their agreement. (Reed v. Proprietors of Locks, etc., 8 How. [U. S.], 274.)

The clause in the charter that the cargoes to be received and delivered should be placed within reach of the steamer’s tackles, at the ports of loading and discharging, must be conceded to be in conflict with the construction now given to that instrument. For there would seem to be no reason for the general owner’s solicitude on that subject, if the steamer was to be delivered over to the exclusive control and possession of the defendants. But the other stipulations at variance with this provision, and the unequivocal acts of the parties themselves, indicating their understanding of the agreement they had made to be that of a letting of the vessel, are too decisive in their effect to permit this to control the disposition which should be made of the case. There was but one contingency upon which responsibility or expense was placed on the plaintiffs, and that was only for accidents to the steamer’s machinery. In all other respects the burthens, as well as the risks and profits of the voyage were placed upon, and secured to the defendants. Tbe engineer through whose negligence the boiler was strained and injured, was, therefore, both by the theory of the charter, and as a matter of fact, their servant and in their employment. And for that reason they, and not the plaintiffs, -were responsible for the detention and consequent loss, resulting from his negligent act. (Donahoe v. Kettell, 1 Clifford, 135, 138.) If, as the referee considered it, that was an accident, then the plaintiffs were relieved from all liability on account of it beyond that for expenses of repairs and supporting the crew, by the express terms of the charter. But if he was in error in that conclusion the error did not affect the result in the case, for the injury was produced by the negligent act of the defendant’s servant.

It-has also been urged that the recovery of $1,250 allowed for detention beyond the time mentioned in the charter was unwarranted. But there was evidence in the case from which it could be very well found, that such detention was caused solely by the default of the defendants’ agent at New Orleans. The referee relied upon that evidence and found the fact accordingly, and there is nothing in the case on which it can be held that he acted erroneously. Neither did he improperly decline to find other facts supported by the evidence and material to the disposition of the case. The judgment seems to have been rightfully directed, and it should, therefore, be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    LAWRENCE DRAKE, Respondent, v. JOHN HENRY SMITH and BENJAMIN S. NELSON, Appellants.

      Cause of action for cowo&i'sion of personal property — assignment of.

      A cause of action arising from the conversion of personal property is capable oí assignment, and the assignee thereof may maintain an action to recover dam ages therefor in his own name.

      Appeal from an order made at Special Term denying motions made by tbe defendants respectively to. vacate orders directing their arrest. The action was brought to recover damages for the conversion by the defendants of a horse belonging to one Barremore. Barremore had, subsequent to the conversion, and after he had demanded the horse from the defendants, assigned to the plaintiff his claim and demand against the said defendants for damages for the conversion. The principal question was as to whether or not such a cause, of action was assignable.

      M. C. Place, for the appellants.

      James F. Chandler, for the respondent.
   Daniels, J.:

It has been urged in support of this appeal, that a cause of action for damages for the conversion of personal property cannot be so effectually assigned, as to allow the assignee to maintain a suit for their recovery in his own name. In the case of Zabriskie v. Smith (3 Kernan, 322), which was for damages for deceit, it was conceded to be the law, on a very thorough examination of the authorities, that causes of action which would survive to the personal representatives of a deceased person were assignable. (Id., 334.) A demand for the conversion of personal property is one of that description, and has been declared to be so by statute, and the only exception made to the generality of the provision upon this subject is that it shall not extend to actions for slander, libel, assault and battery, false imprisonment or for injuries to the person of the plaintiff or of the testator or intestate, or of any executor or administrator. (3 B. S. [5th ed.], 146, §§ 1, 2.) The result is that this demaud vas assignable within that rule, for it was for a wrong only to the property of the assignor, as that term has been used in this statute, and in case of the decease of the assignee it would have survived to his personal representative. (McKee v. Judd, 2 Kernan, 622; McBride v. Farmers’ Bank, 26 N. Y., 450.) Whatever question oí» doubt formerly existed upon this subject has finally been settled against the position now taken in favor of the defendant. Ward v. Benson (31 How., 411), cited by their counsel, is really an authority against their present position. The order should be affirmed, with ten dollars costs and disbursements on appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    ROBERT BONYNGE, Respondent, v. NELSON J. WATERBURY, impleaded with HENRY W. GENET, Appellant.

      Attorney — personal liability of — to pay fees of stenographers and others for services in the action — New ti'idl onground of newly-discovered evidence — -when granted.

    As a general rule, an attorney will incur no personal liability by simply requesting tbe performance, for Ms client, of services rendered necessary by the progress of the case, e. g., for the fees of a stenographer employed to take down and furnish a copy of the testimony, unless he expressly Muds himself for their payment.

      Quaere, as to whether an exception exists as to the fees of clerks, sheriffs and other similar officers.
    The law exacts from parties and their counsel in the trial of an action only reasonable diligence, and when that has been observed, and notwithstanding its exercise, material evidence, not of a cumulative character, wMch would probably change the result, has eluded their discovery, and is subsequently discovered, a proper case is presented for a new trial.
    Appeal from au order denying a motion made by defendant for a new trial on the ground of newly-discovered evidence.

      Nelson J. Waterbwy, appellant in person.

      George W. Palmer, for the respondent.
   Daniels, J.:

The demand made by the plaintiff, and for which he recovered in this action, was for his services as stenographer in taking and reporting the evidence and proceedings upon the trial of an indictment in which the defendant acted as one of the counsel for the prisoner.

It appeared that the plaintiff understood that to be the defendant’s relation to the case, at the time when it was claimed the employment took place. And before that the plaintiff had been requested to report the case by the client himself, and he also had sought that employment. The defendant was an agent for a known principal, and ordinarily would not incur a personal liability simply by requesting the performance of such a service for his client. Of course he could bind himself personally, and that would be the result when it followed from the nature of the agreement made and the intention of the parties. But without something more than the mere performance of his duties as counsel for his client such a liability would not be created, unless it might be for the fees of clerks, sheriffs and other similar officers. The rule of law upon this subject arose out of the peculiar relation existing between the client and his attorney and counsel, and the courts have not considered themselves at liberty to extend it, but in other cases, not within its terms, have regarded these officers as entitled to the same immunity as other agents acting on behalf of known principals. Bor that reason it has been held that an attorney who has not specially obligated himself to pay cannot be rendered liable for the fees of a referee. (Judson v. Gray, 1 Kernan, 408.) And it would seem to follow, from the reasoning of the opinion in that case as well as the authorities referred to in support of it, that the services and demand of the plaintiff should be controlled by that decision. The trial proceeded upon that theory and evidence was accordingly given in support of the action, tending to show that the defendant intended to become personally bound for the payment of the plaintiff’s compensation. But while it probably justified the submission of the case to the jury it was far from being conclusive. The plaintiff’s own relation of what transpired was given in an answer stating that “ Mr. "Waterbury requested me to furnish the minutes in court. He told me what I should furnish, what I should report, and I did so.” And after the trial he stated that the defendant requested that his opening speech should be written out, “ and he told me that if I would proceed and get out his opening I should be paid my bill.” And in answer to the question whether Mr. Waterbury said he would pay it himself the plaintiff reponded he did. That was some time after the trial and, consequently, was only evidence tending to establish a liability by showing a recognition of the obligation claimed to have been previously- incurred. This was denied by the defendant, and in the conflict existing between the parties in their evidence the fact would liavo been very important if it had been shown, that the plaintiff had been definitely- employed to report the case by the client himself, before any interview was had upon that subject with the defendant. It might very well have turned the scale against the plaintiff.

The affidavits produced upon the hearing of the motion render it probable that the fact of such an employment could be established by the evidence of Jonas, whose knowledge upon this subject is shown to have been discovered since the trial took place. He was in the plaintiff’s service, and though present in court when the trial was had it was not known to the defendant that he could give evidence which would probably be sufficient to prove that fact. He might possibly have suspected from what was said in the course of the trial that Jonas possessed that knowledge. But in the excitement and progress of a contested trial laches cannot consistently be imputed to a party because ho has failed to discover and avail himself of such a possibility. The plaintiff was engaged in the effort to show that the defendant had become liable to him. lie was the contesting party in the case, and had no good reason for believing that proof could be elicited from a subordinate of the plaintiff which would tend to show the demand made to be a groundless one. Since the trial the defendant swears that he first made that discovery; and he is probably quite accurate in that statement, for if he had acquired that knowledge before the trial was closed he would not have failed to introduce proof of the fact into the case. Both himself and the person whose evidence is relied upon for a different result in the action swear in their affidavits that the information acquired was first communicated to the defendant long after the trial was had.

What the law exacts from the parties and their counsel in an action is reasonable diligence; and when that has been observed, and notwithstanding its exercise, material evidence, not of a cumulative character, has eluded their discovery which would probably change the result a case is presented for another trial of the cause.

The evidence relied upon in support of the motion in this case exclusively related to what had been done through the agency of Jonas, between tlie plaintiff and tlie defendant’s client. He was not a party to it and was not in fault for not having given it in evidence because be did not know of its existence. Upon tbe proofs before tbe court tbe motion for a new trial should have been allowed to prevail. Tbe order appealed from should accordingly be reversed, with costs to tbe appellant on tbe appeal, and an order entered setting aside tbe verdict and directing a new trial upon tbe payment by tbe defendant of tbe costs of tbe trial already bad.

Davis, P. J., and Beady, J., concurred.

Order reversed, with costs to tbe appellant on tbe appeal. Yer-dict set aside, new trial ordered upon payment by defendant of tbe costs of tbe trial already bad.


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    MAX FREUND, ALEXANDER C. KELLER and ADOLPHUS GOLDSMITH, Appellants, v. THE IMPORTERS AND TRADERS’ NATIONAL BANK, Respondent.

      Cheek — certification of — liability of bank for — power of drawer to stop payment of.

    December 1, 1869, the plaintiffs drew their check for $788.88 upon the defendant to the order and for the accommodation of M. Oppenheimer & Sons, who on the same day delivered it unindorsed to 3ST. Blun & Sons, to whom they were then indebted for goods sold, on account of which they had given them a check on an Ohio bank for $938.88, notice of presentment and non-payment of which was on that day received by N. Blun & Sons. N. Blun & Sons on the same day procured plaintiff’s chock to be certified by the defendant. They applied this check on the Ohio check, and succeeded in recovering all the goods sold by them except a portion thereof of the value of $425, which they omitted to claim upon the faith of plaintiff’s check.
    After the check had been certified, the plaintiff notified defendant not to pay it, notwithstanding which the defendant, after taking a bond of indemnity from N. Blun & Sons, did pay it to them out of plaintiff’s deposit, upon their indorsing it in the name of the payees. In this action by the plaintiff to recover the amount so paid, held, that the defendant having certified the check, was, under the circumstances, bound to pay it. That title to the check could be legally transferred by its mere delivery, especially when that was made for a valuable consideration.
    Appeal from judgment recovered on tbe dismissal of plaintiffs .lomplaint at tbe Circuit.

      B. T. Walden, for the appellants.
    The check was not indorsed by the payees. It was indorsed in the name of the payees by N. Blnn, and there is no evidence of authority on his part to indorse it. It is well settled that the transferee of an unindorsed check has no right to sign the name of the transferer as indorser upon the same. (Byles on Bills, 150; Narlop v. Fisher, 10 Com. B. [N. S.], 196, 202, 203.) The obligation of the bank not being absolute, but limited, it had no right to pay the check against the notice of plaintiffs, unless the holder had rights superior to the plaintiffs, and which pould not be controlled by them. (lant v. Bh. of N. America, 49 Barb., 221; AEtna Nat. Bh. v. Fourth Nat. Bh., 46 N. Y., 82-88.) A bank may, as a general rule, oil certifying a check, charge it to the account of the drawer. It cannot ,do so if it pays after notice from the drawer not to pay, unless the obligation' under the certificate is such as to make it liable to the holder, independent of the relation of the drawer; that is, unless the holder has acquired rights which he can enforce against the bank, although the drawer be not liable upon the check. (Schneider v. Irving Bh., 1 Daly, 500; S. C., 30 IIow. Pr., 190; Stevens v. Oom. Ex. Bh., 10 N. Y. S. C. B. [3 Hun], 147; Kelly v. Roberts, 40 N. Y., 432; Nassau Bh. v. Broadway Bh., 54 Barb., 236, 240.) They were not indorsees. They were, at most, transferees. The transferee stands in the place of his transferer, subject to all the equities existing against him. (Edwards on Bills, 286,287; Chamberlañn v. Gorham, 20 Johns., 144; Hedges v. Seeley, 9 Barb., 214; Gilbert v. Sharpe, 2 Bans., 412; Miller v. Pa/rdon, 55 N. Y., 325, 332, 333; Bush v. Lathrop 22 id., 535.)

      A. R. Dyet and R. W. Townsend, for the respondent.
    The evidence in this case showed that the check m question was given by the plaintiffs to the payees as a loan for their accommodation, and there was no proof of any fraud in the obtaining of it. Conceding, then, that N. Blun & Son took it for a past indebtedness, it is too well settled to permit discussion that they were entitled to recover upon it, though they knew the consideration of the check. (Cole v. Saulspcmgh, 48 Barb., 104; East Rimer Bh. v. Butterworth, 45 Barb., 476; Grocers’ Bh. v. Penfield, 7 Hun, 279; Schiffer v. ' Oampenter, 51 N. Y., 602.) The certification of the check alone was, as between the plaintiffs and defendant, an appropriation of so much of tlie former’s funds to its payment and a payment of the check. (Cooke v. State Nat. Bh., 52 N. Y., 114, 115.) And the defendants were absolutely liable to pay the check and estopped from disputing its validity, and could not escape from that liability. (15 Wend., 640; 25 id., 411; 29 N. Y., 569, 570.)
   Daniels, J.:

The plaintiffs had a deposit account with the defendant, and on the 1st of December, 1869, drew their check upon it payable to M. Oppenheimer & Sons, or order, for the sum of $738.88, and delivered it to the payees as a loan. On the same day the payees transferred it by delivery and without indorsement, to N. Blun & Sons, to whom they were indebted for goods sold, and Blun & Sons procured it to be certified by the proper officer of the defendant on that day. Blun & Sons had previously received, on the sale of their goods to the payees, a check for $938.88, on a bank in Massilon, Ohio. That was protested for non-payment on presentment, and notice thereof was received by Blun & Sons on the day when they received the plaintiffs’ check. The amount of the latter they then credited by indorsement upon the Massilon check. They also recovered the larger portion of the goods they had sold to Oppenheimer & Sons. But they omitted to reclaim others amounting to the sum of $425 in value, upon the credit and faith of the plaintiffs’ check, which they had then received. It has been claimed that those goods might have been recovered, if diligence in the effort to do so had been observed after they knew that the plaintiffs had prohibited the defendant from paying the check. But the evidence in the case is not sufficient to justify that conclusion. It was after the rights of the parties had become fixed by the transfer of the check to Blun & Sons, its certification by the defendant, the indorsement of the amount of it upon the dishonored Massilon check, that the plaintiffs prohibited payment; and that the evidence showed, became known for the first time to Blun & Sons a day too late to enable them to recover the goods in price amounting to the sum of $425. The defendant, after that, paid the check to Blun & Sons, having first received from them a bond of indemnity. And the plaintiffs, after reducing their deposit account to the amount of the check brought this action to recover the balance.

Tbe ease differs very materially in tbe facts proven from tbe condition in wbicb it was presented when it was previously before this court. (Freund v. Importers and Traders' Bk., 10 N. Y. Sup. Ct. Rep., 689.) It now appears, but did not at that time, that the defendant had actually delivered its certificate upon the check to Blun & Sons, who had received it for a good consideration, which, to the extent of $425, they abstained from efforts to recover, upon its credit, before they, or the defendant, were forbidden to collect, or pay the amount of it.' And those facts are sufficient to materially change the legal aspect of the case. There can be no room for doubt, as the plaintiffs’ counsel has claimed, that the cheek of itself would not have deprived them of the right to recover the amount from the defendant. That results from the fact that it would not transfer to the payee any portion of the drawer’s deposit account, and consequently could impose no legal obligation upon the bank to pay it. (Nassau Bank v. Broadway Bank, 54 Barb., 236; Lunt v Bk. of North America, 49 id., 221; Ætna National Bk. v. Fourth National Bank, 46 N. Y., 82; Schneider v. Irving Bk. 30 How. Pr. Rep., 191.) But, after a check of the depositor has been in good faith certified by the bank upon which it has been drawn, a very different case is presented. Then the circumstances on which the depositor’s right to recover have been placed when nothing but his own unaccepted chfeck appeared in the way, no longer exist; for by the certificate the bank becomes liable directly ‘ to the holder of the check, and bound to retain and hold so much of the drawer’s funds for him as will be required to meet and pay it. (Meads v. Merchants' Bk. of Albany, 25 N. Y., 143; Cooke v. National Bk. of Boston, 52 id, 97 ; First Nat. Bk. of Jersey City v. Leach, id., 350; Marine Nat. Bk. v. Nat. City Bk., 59 id., 67.) A new contract concerning so much of the plaintiffs’ funds was created in this case, by which, with their authority and under their direction, the defendant became bound to pay the holder of the check, who had received it for a good consideration, the sum of money in dispute. And that was ¡not in a condition to be revoked or rescinded by the mere act of the plaintiffs, when they directed the defendant not to pay. The case, in this- respect, was materially different from that of Kelly v. Roberts (40 N. Y., 432), where there had been no assent to, or acceptance of the arrangement made by the third party. Here the transaction had produced an entire change in the relations of the defendant. For it had resulted in the creation of an obligation directly to the holders of the check, which they were entitled to insist upon being observed by the defendant. The check was drawn and loaned by the plaintiffs, to be used by the payees, in any mode which might subserve their interests. It wa? an unrestrained and unqualified loan. And the persons receiving iJ had the right to use it in any form which might be beneficial to them selves. (East River Bk. v. Butterworth, 45 Barb., 476; Cole v. Saul paugh, 48 id., 104; Grocers’ Bk. v. Penfield, 14 N. Y. Sup. Ct. Rep., 279; Schepp v. Carpenter, 51 N. Y., 602.) And it was so used by them by the transfer they made of it to Blun & Sons, for a good consideration, before the payee’s authority to dispose of it had been in the least impaired by any action taken by the plaintiffs. The fact that the payees did not indorse the check, will not change the legal effect of the transaction. For, as a chose in action, title to it could be legally created by its mere delivery, especially when that was made for a valid consideration, actually received by the persons transferring it. After what had transpired under the authority of the plaintiffs they were not in a condition to recover the amount claimed by them from the defendant. And the circumstance that a bond of indemnity was taken, before it made the payment, can afford them no assistance. For the effect of that was only to bind the persons receiving the money to return it, in case it did not lawfully belong to them. Under the circumstances they were entitled to the money which was paid to them on the plaintiffs’ account, and rio right to recover it on the bond existed. -

The judgment was right and it should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


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    BRIDGET TORMEY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Municipal corporation — liability of, for acts of municipal boards or departments.

    Although, where a board or department of a city government is created by legislative enactment, and is not subject to the control or direction of the city, government, the latter deriving no pecuniary benefit from the existence of the former, the city government is not responsible for damages occasioned by the negligence and malfeasance of the former; yet where the city does deriye a benefit from the existence of the board, and its employes participate in the wrong, by which the injury is occasioned, it is liable therefor.
    Appeal from an order overruling a demurrer to the complaint, on Che ground that it did not state facts constituting a cause of action. The complaint alleged among other things, that the defendants were a municipal corporation, and that there was a department in said corporation created by the charter, and known as the “ health depart aaent ” or board of health of said city, which said board was authorized to adopt, and had adopted certain sanitary ordinances or “ sanitary code,” and were also authorized to add additional provisions thereto. That by reason of the premises the defendants as a municipal corporation as aforesaid, received and derived and still receive, and derive a personal and pecuniary benefit from the existence and- acts of the said health department or board of health. That the said defendants were authorized by law, through their said health department or board of health, to adopt measures to prevent the spread of small-pox, and to remove persons affected by such disease, and were required to procure suitable places for the reception of persons sick of such disease, and to properly provide for them therein in case they should remove them thereto. That, on the 27th day of May, 1871, this plaintiff was at her residence in _ No. 34 First street, in the city of New York, and was then sick of a disease which, although it required her to be kept from exposure, was of a simple nature, and was not dangerous to life or health; that on said day the defendants, through their said department or board of health, falsely claiming that this plaintiff was sick with small-pox, took her from her house and family, and placed her in a wagon, used for the transportation of small-pox patients, and wholly unfit and improper for the conveyance of any sick or other person, and removed her to Bellevue .hospital; that this was done without any report having been made to them by any physician or ocher reputable person, that this plaintiff was afflicted with smallpox, and without any medical or other examination made by them, to ascertain whether such was the fact, and without reasonable cause or the exercise of that precaution and investigation which the defendants were bound to exercise in such matters; but said servants and agents of the defendants, although expressly requested thereto, wholly failed and neglected to cause any such medical examination to be made, and refused to allow the husband of this plaintiff to send for a physician to make the same, but persisted in removing this plaintiff to said hospital at once, and in spite of all objections made by this plaintiff and her said husband; and plaintiff alleges that the defendants, through their agents, were guilty of gross carelessness and negligence in the matter. This plaintiff fip’ther alleges, that upon the arrival of this plaintiff at said hospital she was left in an open shed fronting upon the river, and which was a wholly unfit and dangerous place for her to remain in, and was, through the carelessness and negligence of the defendants’ agents and employes, obliged to remain therein, and in the com pany of persons actually sick of small-pox, for a long time, to wit, for tho space of about one hour. That, after this plaintiff had remained at said hospital as aforesaid, she was examined by a number of physicians belonging thereto, and who were employed by said defendants to examine the patients therein, who all stated that she was sick, not with small-pox, but with measles, and that her removal from her house was wholly without justification; yet that these same physicians and the other agents and employes of the defendants having charge of said hospital, alleging that they had no power in the premises, under the regulations of the defendants’ board of health, to rescind the previous irregular action of said officials, but were bound to abide thereby, refused to permit said plaintiff to be taken back by her said husband to her residence — as both she and her husband desired should be done — but sent her, against her will and that of her husband, to another hospital at Blackwell’s Island, and that by negligence and carelessness of the defendants’ employes having charge of her removal she was compelled, although in a sick and enfeebled condition, to walk a long distance through wet grass, and at a late hour at night, so that at the time of her arrival at such hospital her clothing was soaked with water, all of which exposure was wholly unnecessary, and arose from, and was a violation of the duty which said defendants owed to this plaintiff, and was extremely dangerous and injurious to the plaintiff. That the plaintiff was kept in said hospital upon said island for a long time, to wit, for the space of seven days, against her will and without any cause whatever; that during that period she was deprived of the society of her family and friends, and was treated with great carelessness and brutality upon the part of the employes of said defendants having charge of said hospital, being deprived of the medicine and attendance required by her in her enfeebled condition, compelled to closely associate with persons afflicted with malignant and infectious diseases, obliged to listen and submit to foul and ab'usive language, the money in her possession upon her entrance being stolen.

      D. J. Hearn,, for the appellant.
    The principal statute defining the powers of the board of health, is the act chapter 74, Laws-of 1876, by which the metropolitan sanitary district was created, and the metropolitan board of health was instituted to administer the sanitary government thereof. By sections 90 to 93, chapter 137, Laws of 1870, the metropolitan board of health was abolished and the health department created and empowered to exercise within the city of New York all the powers theretofore conferred upon the metropolitan board of health. The health department thus created continued to be as independent and incapable of control by the city corporation as was the pro-existing “ metropolitan board of health.” {Ham v. Mayor, 37 Superior Ct. Rep., 467; Selvreyer v. Mayor, 89 id., 1; Hannatt v. Mayor, 6 Ilun, 90; affirmed by Court of Appeals.) The rule of respondeat superior is based upon the right of the employer to select his servants and discharge them if careless or unskillful. The rule has no applica- _ tion to a case in which this power does not exist. {Paele v. The Mayor, 8 N. Y., 222; Kelly v. Mayor, 11 id., 432; Plaice v. Kerris, 5 id., 48; Laugher v. Pointer, 5 Bam. & Cress., 460;
      Quarmcm v. Bennett, 4 Mees. & W., 499; 2 Dillon on Corp., § 772; Mayor v. Bailey, 2 Denio, 433, 437, and authorities cited by Hand, senator; Waleott v. Bwampscott, 1 Allen, 101; White v. Philips-ton, 10 Mete., 108; Biggs v. Foote, 4 Allen, 195, 197; Kimball v. Boston, 1 Allen, 417; Ghild v. Boston, 4 Allen, 41, 52; Morrison v. Lawrence, 98 Mass., 219 ; Maximilian v. The Mayor, 62 N. Y., 163.) A municipal corporation is not liable for the misfeasance or nonfeasance of one of its officers, in respect to a duty specifically imposed by statute on the officer. (Martin v. Mayor, 1 Hill, 545 ; Lorillard v. Town of Monroe, 11 N. Y., 392, 396.) Nor for acts of misfeasance of public officers not appointed by them, although performing certain acts for them under the law for which they are appointed. (Bank of Commonwealth v. The Mayor, 43 N. Y., 184.) Nor for the neglect of the board of police commissioners, who are not appointed by, or responsible to, the corporation. (.Atwater v. Baltimore, 31 Md., 4G2.) Nor for the negligence of the members appointed and paid by the city council, of a fire department established by the city council pursuant to an act of the legislature, as a department of the city. (Ilafford v. City of New Bedford, 82 Mass. [16 Gray], 297.) Nor for the negligence of a member of the fire department. (Fisher v. Boston, 104 Mass., 87.) Nor for an assault and battery committed by its police officers, even though it was done in an attempt to enforce an ordinance of the city. (Bwttriak v. City of Lowell, 83 Mass. [1 Allen], 172.) Nor for the negligence of a policeman, who injured the plaintiff by carelessly using a pistol while engaged in killing a rabid dog, pursuant to a corporate ordinance. (McKay v. Buffalo, 9 Hun, 402; Bassett v. The Mayor, 2 Denio, 473, 481.) The duty of 2>rotecting the public health, which is devolved upon the health department, is purely 2mblie and governmental; and even if exercised by the defendants, through the department, is not exercised for the benefit or emolument of the corporation, but solely as a means of exercising the sovereign power of the State for the benefit of all the citizens. (Dillon on Mun. Oorp., vol. 1, p. 150, "§ 39; Bailey v. The Mayor, 3 Hill, 531; O^Mea/ra v. The Mayor, 1 Daly, 425.) A municipal corporation is not liable for damages sustained by the plaintiff, in consequence of the negligence of an attendant in the performance of his duty in a hospital maintained by it (Richmond v. Long, 17 Grattan, 375); nor foi injury sustained by the plaintiff in consequence of' negligent treatment by the county physician at the county hospital, nor by reason of insufficient and unwholesome food there supplied to the patient. (Sherbourn v. Yuba, 21 Cal., 113; Oliver v. Worcester, 102 Mass., 489, 499; Detroit y. Cory, 9 Mich., 165.) No action can.be maintained against a town, upon which the duties of a “ school district ” were imposed by statute, for negligence in respect to the safe condition of school buildings. (Biglow v. Randolph, 14 Gray, 544; Eastman v. Meredith, 36 N. H., 284; Murphy v. Commissioners, 28 N. Y. Rep., 142; Whitfiéld v. Le Deprew, Cowp., 242; Mead y. New Haven, 40 Conn., 72; Brown v. Yinalhaven, 65 Maine, 402; Mitchell Y* Rocklcmd, 52 id., 118.) The duties imposed by the statute upon the health department, in relation to caring for the public health, are to be exercised according to discretion of the officers thei’eof; in this respect their functions are judicial, and no liability to action for damages can be predicated upon misfortunes arising from their errors. {Mills y. Brooldyn, 32 N. Y. Rep., 496; Cole y. Medina, 27 Barb., 218 ; Eanxmagh v. Brooldyn, 38 id., 232; Rochester White Lead Co. v, Rochester, 3 N. Y. Rep., 463 ; Hutson v. Mayor, 5 Selden, 163; Wilson y. Mayor, 1 Denio, 595 ; Levy v. Mayor, 1 Sandf., 468.)

      George IF". Wimgate, for the respondent.
    The admission of the allegation in the complaint, that the defendants, as a municipal corporation, received a personal and pecuniary benefit from the existence and acts of the board of health, takes this case out of the rule exempting the city from liability laid down in the case of Maximilian v. The Mayor, etc. (62 N. Y., 160). The board of health did not act judicially, because they made no examination whatever of the plaintiff, and received no report of her case, and they therefore had nothing before them to pass upon. {Miller v. Bri/nkerhoff, 4 Denio, 118; Metropolitan Bocvrd of Health v. Iluster, 37 N. Y., 661, 672.) The defendant was liable in this case. {Jones v. City of New Haven, 34 Conn., 15; Henly v. Mayor of Lyme, 5 Bing., 108; Scott v. Mayor of Manchester, 2 TI. & N., 205; City of Chicago v. Powers, 42 111., 19 ; City of Pittsburg v. Grier, 10 Harris [22 Pa.], 64; Mayor, etc., of Savannah v. Cullens,
      88 Ga., 334.) The distinction, drawn in the case of BaAley v. The Mayor (3 Hill, 531), between powers conferred upon the. corporate body in its public character, and those conferred for purposes of private advantage or emolument has been expressly overruled by the Court of Appeals; and is stated by them “ to have been substantially repudiated, and therefore cannot be considered as a precedent.” (Darlington v. The Mayor, 81 N. Y., 201-204.) This is also held substantially by the Supreme Court of the United States. (Barnes v. District of Columbia, 91 U. S. [1 Otto], 544-545, 547-554; Weightman v. Corporation of Washington, 1 Black [U S.], 39-50; Nebraska City v. Campbell, 2 Black, 590-592.) All the powers conferred upon a corporation for the local government of a town or city, are in the judgment of law for the private benefit of such corporation, although the public at large may also derive benefit from them. (Maym• of Memphis v. lassar, 9 Humph., 759.)
   Daniels, J.:

This action has been brought to recover damages for forcibly removing the plaintiff, against her will, from her own residence to the small-pox hospital, while she was afflicted only with the disease known as measles. According to the complaint the removal was in part the result of the authority and action of the board of health of the city of New York. And because that board exercises its authority wholly under the laws, and not under the control or direction of the municipal government of the city, the defendant demurred to the complaint upon the theory that it could not, under the circumstances, be held liable for the conduct or act of the servants of that board.

This theory derives support from the decisions made in the case of Maximilian v. Mayor, etc. (9 N. Y. Sup. Ct. Rep’ts, 263 ; affirmed 62 N. Y., 160). And it has been farther illustrated and sustained by the very able briefs presented by both parties upon the argument of this appeal. But in the present case other important facts are alleged for the purpose of supporting the defendant’s liability, beyond those upon which that case was considered and decided. And they show that the defendant, by means of its own employes, participated in the commission of the gross wrong which was suffered by the plaintiff. And if that were the case it may have made itself liable for the legal consequences of the plaintiffs removal and detention. - Upon this subject it was stated that “ the defendants, through their said department or board of health, falsely claiming that this plaintiff was sick with small-pox, took her from her house and family,” etc.; “that said servants and agents of the defendants, although expressly requested thereto, wholly failed and neglected to canse any medical examination to be made of her. disease before removing her; that the defendants, through their agents, were guilty of gross carelessness and negligence in the matter.”

It was also alleged that after her removal she was placed and detained in an open shed, “ and was, through the carelessness and negligence of the defendant’s agents and employes, obliged to remain therein and in the company of persons actually sick of small-pox, for the space of about one hour.” That after she was taken to the hospital “ she was examined by a number of physicians belonging thereto, and who were employed by said defendants to examine the patients therein, who discovered that her disease was not small-pox but measles, and yet these physicians and the other agents and employes of the defendants having charge of said hospital, alleging that they had no power in the premises, refused to permit said plaintiff to be taken to her residence, but sent her against her will to another hospital at Blackwell’s Island, and that by negligence and carelessness of the defendant’s employes having charge of her removal, she was compelled, although in a sick and enfeebled condition, to walk a long distance through wet grass a.nd at a late hour at night, so that at the time of her arrival at such hospital her clothing was soaked with water, and that she was there detained against her will for the space of seven days, where she was treated with great carelessness and brutality upon the part of the employes of said defendants having charge of said hospital.”

These are material allegations and consequently are admitted by the demurrer, and must, for the present consideration of the case, be accepted as the truth. They show that the plaintiff was made the subject of the most cruel wrongs on the part of persons in the employment of the defendant, and in the course of the discharge of their duties. And that being the case, as the defendant is alleged also to have derived a personal and pecuniary -benefit from the existence and acts of tbe health department or board of health, a case was presented which, under the authorities, was sufficient to render the defendant liable as a municipal corporation. (2 Dillon on Municipal Corporations, § 172, and cases referred to; Mayor v. Bailey, 2 Denio, 433 ; Weightman v. Corporation of Washington, 1 Black, 39 ; Nebraska City v. Campbell, 2 id., 590.)

It may be that the plaintiff has stated her case much more unfavorably to the defendant than the evidence will sustain, but if she has, no means exist for correcting it while the facts alleged are admitted on the record. The argument proceeded upon the assumption that such was the case, and it was not very positively denied by the learned counsel for the plaintiff. But as the case must be decided upon the facts disclosed by the record alone, and not upon concessions appearing to be made concerning the probable truth of their existence, what was said in that respect in the course of the argument, cannot be allowed to have any weight in the disposition which should be made of it. If the facts turn out as they have been alleged, and it must now be supposed that they will, then, even if the wrong was in part committed by the health department, acts of an unlawful nature are also shown to have been perpetrated by the officers and agents of the defendant, and for them, and to the extent the plaintiff was injured by them, it should be held to be legally liable.

It is seldom so grave wrongs are alleged against public agents and officials. And if they existed as they have been described, ^tliey should be criminally punished as well as civilly redressed. The public has such an interest in the case as should lead to its vindication for the protection of others, who may be in danger of similar abuses of authority.

The order should be affirmed, but with leave to the defendant to withdraw its demurrer and answer within twenty days, upon payment of the costs arising upon the demurrer and the appeal, and with the usual disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed with leave to defendant to withdraw demurrer, and answer in twenty days on payment of costs arising upon demurrer and the appeal, and with the usual disbursements.


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    THE HARTFORD AND NEW YORK STEAMBOAT COMPANY, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Lease of wha/if in New York — duty of city as to repair of— covenant as to, by lessee — rebuilding of.

    The complaint alleged that the defendant leased to the plaintiff a wharf for ten years from May 1, I860; that in 1867 the wharf fell down, and upon defendant’s refusal to rebuild the same, plaintiff did so at a cost, including damages to business, exceeding $80,000; that the wharf was old and insecure from natural wear and decay and hidden defects at the time the lease was made, and that these defects were the cause of its ■‘nil; that the defendant, previous to and at the time of the making of the lease, represented to plaintiff that the substantial repairs would be made by it, and that plaintiff would have to make only the ordinary and usual repairs. The lease contained a covenant, by which the plaintiff covenanted to repair and keep the said wharves in good repair at its own proper cost and charges, and surrender the same at the expiration of said term in as good condition as they were at the time it took possession thereof, the natural wear and decay excepted; that all alterations and improvements and repairs, of whatsoever kind, would be made at its expense, and that they would keep the wharves in good condition and in safe and proper repair, including especially the string-pieces and other superficial portions thereof, for safe usage.

      Meld, that, as no fraud or concealment on the part of the defendant was alleged, the express covenants of the written lease could not be varied by proof of the alleged representations.
    That whatever duty to keep the wharf in good repair the defendant might owe to persons lawfully traversing and using the wharf as a public street, the plain-, tiff could not, as against its express covenant, avail itself of it in this action.
    That even if it were the duty of the defendant to keep the wharf in repair, yet when it fell down, whether or not to rebuild it was a question resting in the discretion of the defendant, and the plaintiff could not impose any liability upon it by its action in rebuilding the same.
    Appeal from a judgment in favor of the defendant, entered upon an order sustaining a demurrer to the complaint.

      J. S. Icmrence, for tbe appellant.
    Tbe city was bound to maintain tbe pier and bulk-bead in a safe condition, to be used by tba public as a street. (Bradley on Distresses, 191; Buehbee v. Brown, 21 "Wend., 116; Dillon on Munic. Corp., § 69; 37 N. Y., 281; 1 Kern., 471; 3 Kent’s Com., 432.) It is for tlie public convenience that the legislature authorizes wharves to be erected on navigable rivers. (Thompson v. The Mayor, 1 Kern., 121; Smith v. Levinus, 4 Sold., 474; Marshall v. Yultee, 1 E. D. S., 306.) And where a public body is clothed by statute with power to do an act which concerns the public interests, the execution of the power may be insisted on as a duty, though the statute conferring it be only permissive in its terms. (Ilutson v. The Mayor, 5 Seld., 168; see Judge Edmond’s 13th Rule on Interpretation of Statutes in his introduction to his edition of the Revised Statutes; Kent’s note to city charter, No. 53; charter of 1873, § 119.) The covenant to repair is not a general, but a limited one. “If he covenants to keep the premises in repair and leave them in the same state as he found them, he is merely required to use his best endeavors to keep them in the same tenantable repair, for natural and unavoidable decay is no breach of this covenant.” (Taylor’s Landlord and Tenant, § 357; 1 Sheppard’s Touchstone, 168, 169; Melntosh v. Town, 49 Barb., 555.) Furthermore, in this case the consequence of natural wear and decay are expressly excepted from the operation of the covenant, and as the destruction of the pier and bulkhead in this case resulted from natural wear and decay, it necessarily follows that this covenant does not affect the case. The representations set forth in the third subdivision of the complaint may be proved (.Lindley v. Lacy, 17 C. B., 578; Morgan v. Griffith, 6 L. R. Ex., 70; Ersltine v. Adeane, 6 Eng. Rep. [Moak’s ed.], 594; Mann v. Nunn, 43 L. J. C., 241), where verbal representations were shown under similar circumstances. These representations concern the nature and qualities of the subject-matter to which the agreement refers, and on that ground are admissible. (1 Greenl. on Evi., § 286; Knapp v. Warner, 57 N. Y., 668.)

      D. J. Mean, for the respondent.
   Daniels, J.:

The complaint alleged that a wharf leased by the defendant to the plaintiff for the term of ten years from the 1st day of May, 1865, on or about the month of April, 1867, fell down and ivas wholly gone, and upon the refusal of the defendant to reconstruct it the plaintiff rebuilt it at an expense, including tbe loss of its business in the meantime, exceeding the sum of $30,000. It was alleged that the wharf was an old one and substantially destroyed by natural wear and decay, and hidden and secret defects concealed under the surface of the water at the time when the lease was made, and that it finally fell because of the defendant’s omission to substantially repair it; and for that reason, and also because it was represented by the defendant previous to the making of the lease that the substantial repairs would be made by it, and that the plaintiff should be under no obligation to make any other than the ordinary and usual repairs, it was claimed that the defendant was liable to reimburse the expenditures made and the loss incurred from the suspension of the plaintiff’s business. No fraud, either by intentional concealment or misrepresentation, was alleged against the defendant; and as the lease was in writing and subscribed by the parties in such a form as wholly to exclude proof of the representations mentioned* they can, neither of them, be considered for the purpose of determining the legal extent of the defendant’s obligation, for it is exceedingly well settled that all anterior representations of what either of the contracting parties may propose to do concerning the subject-matter of the contract become merged in the written instrument afterwards executed by them, and for that reason they are inoperative when no fraud or mistake has occasioned their omission from its terms. (2 Parsons on Contracts [5th ed.], 547, 549; Riley v. City of Brooklyn, 46 N. Y., 444.) As the plaintiff was in no way deceived or mistaken concerning the contents of the lease, it cannot impose any obligation upon the defendant in consequence of what may previously have been stated, but which Was allowed to form no part of it when it was afterwards reduced to writing and mutually executed.

An effort was made by the plaintiff’s .counsel to maintain the liability upon the duty resting upon the defendant to keep its wharves in a reasonably safe state of repair. But the serious difficulty in the way of sustaining that theory has been created by the stipulations which were inserted in the lease. They changed the burthen of the legal duty between these parties by imposing the obligation of its observance upon the plaintiff. They were plain and explicit, and expressed in the following manner: “And the parties of the second part (the plaintiffs) further covenant that during the continuance of said lease they will repair and keep the said wharves, piers or bulk-heads in good repair at their own proper cost and charges and surrender the same, at the expiration of said term, in as good condition as they are at the time they take possession thereof, the natural wear and decay excepted.

“And that all alterations and improvements and repairs, of whatsoever kind or nature, are to be made at the expense of the party of the second part.

“And the said parties of the second part for themselves, etc., hereby expressly covenant and agree that they will, during the continuance hereof, keep the wharves in good condition and safe and proper repair, including especially the string-pieces and other superficial portions thereof for safe usage, and in default of their so doing at any time after notice from the comptroller or other proper officer of the city that such repairs are necessary, and ten days thereafter the said parties of the first part may repair the same, and the said parties of the second part (plaintiffs) their successors and assigns agree to pay to the parties of the first part all expenses of such repairs and interest, damages by the elements alone excepted.”

And they subjected the plaintiff to the obligation of making all such repairs as should be required by the demised structure during the continuance of the term created in the lease. For that purpose no duty rested upon the defendant in the plaintiff’s favor. The duty insisted upon cannot be implied from their relations or from any thing contained in the written instrument. (Witty v. Matthews, 52 N. Y., 512 ; Lookrow v. Horgan, 58 id., 635.) For these reasons, and those also assigned in the opinion of Mr. Justice Donohue, upon the decision of the demurrer to the original complaint, the judgment ought to be affirmed.

Opinion of Donohue, J., at Special Term:

In this case the complaint in substance is that the plaintiffs, a corporation acting as common carrier by water, and having a large business, leased wharfage of the pier mentioned in the complaint, the plaintiffs to do the repairs of all and every kind during the lease. The ground of action is that the pier leased in April, 1865, in consequence of its then state from wear and tear and the additional use up to April, 1867, had to be repaired to the extent in the complaint stated; that the defendants were by law bound to keep the wharf in order and that the plaintiffs asked them to so put it, and that as the defendants would not plaintiffs did and ask to receive the money they paid for repairing it. To this defendants demur and I think the demurrer must be sustained.

Admitting all that is said about the public duty of the defendants, and that a man has a right to demand from the city the repair of the street in front of his house, and in default of the city doing it, he may, and charge them. Admitting for the argument all this, the plaintiffs have, by the terms of their lease, assumed all this duty, and whatever may be the rights of the public for injuries sustained by the non-performance by the city of its duties the plaintiff, who has assumed by the covenant of the lease this duty, cannot, as between it and the city, escape from its covenant.

In Taylor v. Atlantic Insurance Company (37 N. Y., 278) the General Term of the Superior Court held expressly, as between lessees of the pier and the city, that any obstructions which, as between the city and themselves, in order to enjoy their grant, the lessees were bound to remove, the duty being on them to do it, they had no redress for the loss except as against a. wrong-doer. (See 4th and 5th findings, page 278.) This was in no way disapproved by the Court of Appeals, but acquiesced in.

In Davenport v. Ruckman (37 N. Y., 568) the same principle, in substance, was stated, that the person whose duty it was to repair the sidewalks was responsible to third parties for defects in such sidewalk; and as to such third parties the city was also liable. That case was one where the city and householder held no relation by covenant with each other, and their obligations arose solely out of their obligations to the public.

In Robinson v. Chamberlain (34 N. Y., 389) the same doctrine, as contended for in this case by the defendant, is carried beyond what is required here. There it was expressly held that where a person acts as a public officer, but under a contract with the State to jaerform certain work, but does his work negligently, as to a party injured by such neglect to repair he was liable. If the principle contended for here by plaintiff is correct this could not be so.

In McCarthy v. The City of Syracuse (46 N. Y., 194) the casa turned entirely on the duty, as to third parties, of the city in keeping' the streets in repair, and so I find is the substance of the other cases cited by plaintiff. In none of them can I find any approval'of a principle holding that the city cannot, as between itself and its tenants, make such covenant as any other person can make, always saving the rights of third parties, and that it does not lie in the mouth of such tenant to say the covenant is improper, while he keeps the lease. In other words he cannot take all the benefit and throw all the loss on the city.

The statement of the case here is one showing no fraud or misrepresentation. Plaintiff had full means of ascertaining the condition of the pier, and did not offer to surrender but wanted to hold the contract and add to it a covenant to do what he had already covenanted to do.

The case, it seems to me, presents a single question on this covenant, who is bound for the expense, and it seems clear the plaintiff was. But it seems to me, further, that it is not for the plaintiff to assume what streets the defendant should keep open or what new streets it shall open, or what wharves the city shall keep uj) or what new ones build, and because it cannot get a pier to suit it as well as this rebuilt.

I know of no obligations on the city to rebuild or keep up any particular pier if they see fit to take it up, and it does not seem to mo that the city was bound, as regards this plaintiff, to build or rebuild a pier which would be more convenient to this plaintiff than in its dilapidated state.

In the judgment of the officers of the plaintiff this was the best pier for them; that judgment the city is not bound by. It has been a question of sound public policy whether these and similar steamboats should be allowed so low down at all. Whether plaintiffs áre to be allowed to determine this question and build or extend piers to suit them is not, it seems to me, open to question. They have no such right.

The city takes the ground that supposing they are wrong on both these points, that is as to the covenant obligations of plaintiff to do the work, and that the defendants were bound to maintain the existence of this wharf, it is not for the defendants to repair or rebuild and charge defendants with the price. It seems to me that on this point the city is equally right.

I know of no case going to the extent of holding that where a duty exists in a corporation of maintaining piers, that when they are in default any person claiming to be injured may do the duty thrown on the corporation and charge them with the value.

It is hardly necessary to discuss the question; such a principle would leave the corporate right much more embarrassed than either policy or justice would require.

Judgment for defendant.

Davis, P. J., and Brady, J., concurred in foregoing opinion o* Daniels, J.

Judgment affirmed.


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    SARAH A. PINCHBECK, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Payment of assessment by mistake — when the amount paid may be recovered— right to recover it does not pass by a conveyance of the la/nd.

    In 1869, W. F, Pinchbeck received a notice that an assessment had been made upon a lot owned by him, designated as ward No, 57 B, of block 536, which assessment he accordingly paid, and the amount received was applied to the' payment of the assessment against' the said lot. In fact he did not own that lot but did own a lot designated as ward No. 57 A, of block 536, the original lot No. 57 having been divided by the city without his knowledge. In June, 1873, he conveyed the lot to his son, who, on the same day, conveyed it to the plaintiff. The plaintiff, upon learning that her lot had been sold for nonpayment of the assessment, redeemed the same, being then acquainted with all the facts, and brought this action to recover the amount expended in so doing.

      Held, that the payment made by W. F. Pinchbeck was made through mistake and that he was entitled to recover the same from the city.
    That his right so to do had not been transferred to the plaintiff by the conveyance of the lot to her.
    That plaintiffwas not entitled to maintain this action to recover the sum paid by her to redeem the premises from the sale, which was regular, the assessment not having been paid on lot A.

    Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a «motion for a new trial made upon the minutes of the court.

      D. J. Dea/ii, for the appellant.

      Jas. G. White, for the respondent.
   Daniels, J.:

The verdict was directed for the sum of eighty-four dollars and eighty-one cents, on which the judgment was entered from which the appeal has been taken. It was for the amount paid and interest thereon, to redeem a lot of land owned by the plaintiff, from a sale made for the non-payment of an assessment upon it for the expenses of paving Fifty-second street. It appeared that the property was owned by William F. Pinchbeck, in 1869. lie received a notice from the clerk of arrears that an assessment had been made upon his property which, in figures placed above the notice, was designated as ward No. 57 B, of block 536, which he was required to pay. And on the ninth of November of that year he paid the assessment, then amounting to the sum of forty-one dollars and fifty cents, and it was applied in payment of the assessment against that lot. In point of fact he was not the owner of the lot designated as fifty-seven B, but owned an adjoining lot known as fifty-seven A. But as he was not informed of the designation which had been so made of the lots by the city authorities, because of a division of the lot originally known as fifty-seven, he supposed the notice related, as it was stated it did, to his own lot, and paid the assessment in the belief warranted by the circumstances that such was the fact. But as he did not own the lot designated as fifty-seven B, the payment did not extinguish the assessment made upon his own lot, but was applied by the officer receiving it to the satisfaction of that upon the other lot referred to by the figures and letter accompanying the notice. It was a case of clear mistake, and upon the discovery of the facts, authorized a recovery of the money from the defendant by the person paying it. (Dietrich v. Mayor, etc., 12 N. Y. Sup. Ct. Repts., 421; Mayer v. Mayor, etc., 63 N. Y., 455.)

After that payment was made, William F. Pinchbeck, the person making it, conveyed the lot ówned by him to his son, who on tho same day, the 28th of June, 1873, conveyed it to the plaintiff. And after that, upon the discovery that it had been sold for the non-pay ment of the assessment which William F. Pinchbeck intended to, but did not pay, and supposed he had paid, she redeemed it from the sale by making payment of the sum, which, with interest, was included in the verdict. In making the payment required for the redemption, there was no' mistake whatsoever on her part, or that of any other person. The facts relating to it were then all well and fully known, and the sale was regular because the assessment made upon the lot had not, in truth, been paid. There, was consequently; no legal ground on which a recovery could be had by her in the case. She paid only what her property was legally liable to pay, and there is nothing in the case from which it can be held that she succeeded to the right of her husband to recover the amount he had by mistake paid to extinguish the assessment upon the other lot. It was not an incident in any form to the land conveyed and described in the deeds. And for that reason was not transferred by them, as it would have been, if it had been incidental to the title she received. (Jackson v. Bowen, 7 Cowen, 13; Robinson v. Ryan, 25 N. Y., 320.) There seems to be no legal manner in which the recovery can be sustained. The judgment must therefore be reversed and a new trial ordered, with costs to abide the event. And as that disposes of the entire case, the appeal from the order should be dismissed without costs.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.