text:
    John D. Elwell, App’lt, v. Cyprien Fabre, Resp’t.

      New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Common carriers—Not excused from paying rent, although the FREIGHT HAS BEEN DELIVERED TO CONSIGNEE.
    Where a common carrier agreed with plaintiff, lessee of a pier, to pay rent per diem while the pier was occupied by freight and the carrier turned the freight over to the consignee who accepted it, and the freight thereafter remained upon the pier, in an action by the lessee against the carrier for rent, Reid, that the fact that the consignee had taken possession of the freight did not excuse the carrier from payment of the stipulated rent.
    3. Appeal—When the entire judgment must be affirmed or reversed.
    Where in an action against a single defendant the plaintiff succeeded at the trial term upon one branch of a case and the judgment in that respect is affirmed here and said plaintiff failed at the trial upon another branch, the judgment in which respect is reversed here, the plaintiff must stipulate that the whole judgment be affirmed; if he do not, the whole judgment must be reversed.
    Appeal from so much of the judgment in this action as adjudges the plaintiff is not entitled to recover upon the second •cause of action alleged in the complaint, for rent claimed by plaintiff for the use of his pier in the storage of cargo, and from an order denying plaintiff’s motion for a new trial.

      Eustace Conway, for app’lt; R. D. Benedict, for resp’t.
   Bischoff, J.

Plaintiff, being the lessee of the Columbia pier, and defendant, operating a line of steamers, entered into a written contract for the use of the pier during the year 1888. This agreement contained the following provision: “ The parties of the second part further and in addition agree to pay to the party of the first part twenty-five (25) dollars for each day outward cai-go, above the bulk of 200 barrels, for any of their steamers is on said pier previous to its arrival, and twenty-five (25) dollars each day inward or outward cargo remains on the pier after departure from, the pier for sea of any of their steamers, but a small quantity remaining on the pier after departure of steamers, say up to the bulk of 200 barrels, not to count if the pier is not employed for another steamer.”

On November 2d, defendant's steamer “ Burgundia ” arrived with a quantity of pomegranates and grapes, consigned to Pebrici & Story, which were discharged upon the pier, and there remained until December 28, the steamer having again left port on November 11th. For November 12ih, 13th, 14th, 15th and 16th, defendant paid the stipulated sum for the storage of these pomegranates and grapes, but declines to pay for the succeeding days, on the ground that on or before November 16th the merchandise had been turned over to and accepted by the consignees, and that he was thereafter discharged in respect to this merchandise from any further liability for the use of the pier. Plaintiff thereupon commenced this action to recover, among other things, the stipulated sum for the use of his pier from November 17th to December 28th, both inclusive, a period of forty-two days, which, at twenty-five dollars per day, amounted to $1,050, and on the trial the defendant was permitted to introduce evidence tending to show that some time prior to November 16th the consignees assumed the custody of the pomegranates and grapes and removed a part thereof, the bulk, however, remaining on the pier for the period stated. The court charged the jury that “ when a common carrier delivers the goods according to the terms of the bill of lading, and notifies the consignee at the port of arrival, and the consignee exercises any act of ownership over them, the liability of the common carrier ends.” This of course as a proposition of law is true, but clearly it can have reference only to the relations of the common carrier and the consignee and the liability of the former to the latter respecting the goods, and can in no wise affect the liability of the common carrier upon his promise to pay rent to a third party for the storage of goods earned by him and discharged upon premises let to him for that purpose. The proposition of law contained within this part of the charge had no application, therefore, to the facts of the case. It was misleading and we cannot say that the jury was not influenced thereby to the prejudice of the plaintiff. Greene v. White, 37 N. Y., 405, 407 ; Harding v. Barney, 7 Bosw., 353, 362.

Again, the court charged substantially that the defendant was not liable if the jury found from the evidence that the pomegranates and grapes had been delivered to the consignees and left by the latter upon the pier. This was erroneous, since the defendant’s liability to pay rent for cargo deposited on the pier could in no manner have been impaired by the failure of the consignees, who had no relations with the plaintiff, to remove the merchandise agreeably to an understanding between such consignees and the defendant, in the absence of proof that the plaintiff with knowledge of the delivery to the consignees assented to their further use of the pier for the storage of the merchandise.

The exceptions to the charge above referred to are sufficient to call for a reversal, but under the ruling of the court of appeals in Goodsell v. The Western Union Telegraph Co., 109 N. Y., 147; 15 N. Y. State Rep., 73, we feel compelled to direct a reversal of the entire judgment, unless plaintiff consents to affirmance upon this appeal.

Judgment reversed, new trial ordered, costs to abide event, unless plaintiff files a stipulation consenting to an affirmance thereof, in which event that part of the judgment which is affected by this appeal is affirmed with costs to defendant, respondent herein.

Allen and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Joseph E. Hinds et al., Resp’ts, v. James E. Kellogg, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Appeal—Certificate that case contains all the evidence.
    Where a case on appeal has no certificate that it contains all the evidence the court is confined to determining whether the facts found support the judgment.
    3. Statute of frauds—Goods to be manufactured.
    PlaintiSs agreed by parol to manufacture for defendants certain circulars to be delivered as soon as possible. They were designed exclusively for use in defendants’ business. Held, that although their value exceeded fifty dollars, and no part of the price was paid, the contract was not within the statute of frauds.
    3. Contract—“As soon as possible.”
    A contract to deliver “ as soon as possible” requires delivery within a reasonable time, and this latter means so much time as is necessary, under the circumstances, to do conveniently what the contract requires shall be done.
    4. Pleading—Insufficiency of complaint.
    Where the defendant intends to claim that the allegations of the complaint do not make out a cause of action his remedy is by demurrer or by motion to dismiss on the trial. Failing this, he cannot raise the point on appeal.
    5. Judgment—Code Civ. Pro., § 1033.
    Section 1033, Code Civ. Pro., provides that a referee in his report “ must direct the judgment to be entered thereupon.” This requirement is satisfied if from the whole or a part of the report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained.
    Action for work, labor and services, and materials furnished, which defendant refused to accept on the ground that the articles manufactured were not delivered within the time stipulated for delivery. Appeal from judgment of the general term of the city court affirming a judgment in favor of plaintiffs upon the report of a referee.

      J. E. Ludden, for resp’ts; Isaac N. Miller, for app’lt.
   Bischoff, J.

The case on appeal omits the requisite certificate that it contains all the evidence adduced upon the trial, and we are confined in our inquiry to ascertaining whether the facts found by the referee support the judgment appealed from. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479.

About' April 12, 1887, plaintiffs, at the request of the defendant, agreed to manufacture 100,000 circulars, to be delivered as soon as possible, and about July 7, 1887, at like request, further agreed to make 450,000 wraps, to be delivered during the following month of September. These circulars and wraps were designed exclusively for use in defendant’s business, and not adaptable to any other purpose, and neither contract was, therefore, within the Statute of Frauds, and required to be in writing. Passaic Mfg. Co. v. Hoffman, 3 Daly, 495; Deal v. Maxwell, 51 N. Y., 652; Parsons v. Loucks, 48 id., 17.

The design for the circulars was approved by the defendant on May 3, 1887, and on June 24th following part of the circulars were delivered to, paid for and accepted by the defendant; but when, on the next succeeding day, plaintiffs tendered the remainder, defendant refused to accept the same on the ground that the delivery thereof was not tendered in time.

A contract to deliver “ as soon as possible ” requires delivery “ within a reasonable time,” Hydraulic Eng’g Co. v. McHaffie, 29 English Rep., 102 (Moak’s Notes); Benjamin on Sales, Bennett’s Ed., par. 687; Arthur v. Wright, 32 N. Y. State Rep., 32. And “ reasonable time ” is defined to be “ so much time as is necessary under the circumstances to do conveniently what the contract required shall be done.” Wells on Questions of Law and Fact, p. 136, § 151, and cases cited; Bouvier’s Law Dictionary, vol. 2, “Reasonable Time.”

What is, or is not, a reasonable time for the performance of the act required is, therefore, a question dependent upon the intention of the parties, and the facts and circumstances of the particular case. Defendant urges, and the referee has so found, that it was possible for plaintiffs to deliver all the circulars within ten days after approval of the design. This may well be, but it does not follow that because it was possible to make delivery within less time, that the time within which plaintiffs tendered the remainder of the circulars was any the less reasonable under the definition of what «constitutes a “ reasonable time ” above referred to.

The unconditional acceptance and retention by the defendant of a portion of the circulars on June 24th and his payment therefor are conclusive upon him that the delivery thereof was reasonable, Read v. Randall, 29 N. Y., 358, and in the absence of all proof of any special circumstances it would be an unwarranted and arbitrary assumption to hold that the next succeeding day was beyond the boundary line of reasonable time. Thus it does not appear, when the defendant requested delay in the delivery of the circulare until May 10th, 1888, as found by the referee, that the plaintiffs were in default, and the request having been acted upon by the plaintiffs the defendant is estopped from claiming that an earlier delivery should have been made and that the omission to make the same excused defendant from acceptance on May 10th, 1888, on which day the remaining circulars appear to have been duly tendered. Friess v. Eider, 24 N. Y., 367.

So, too, the agreement by plaintiffs to deliver the wraps during the month of September, 1887, gave them the entire month within which to make such delivery, and the defendant’s request for delay until May following having been made and acquiesced in before the expiration of the month, and not appearing to have been withdrawn, the plaintiffs are not chargeable with default in delivery and no new consideration was required to support the defendant's promise to accept the wraps in May. Friess v. Rider, supra.

There is no force in appellant’s contention that the judgment appealed from should be reversed because the allegations of the complaint are insufficient to constitute a cause of action. If the complaint was not sufficient in this respect defendant’s remedy was by demurrer or motion for dismissal at the time of trial. Of neither did he avail himself, and evidence of all facts essential to plaintiffs’ recovery was received on the trial. In such a case the appellate court will disregard any insufficiency of the pleadings, Knapp v. Simon, 96 N. Y., 284, and if necessary in support of the judgment direct an amendment to conform to the proof. Reeder v. Sayre, 70 N. Y., 180: Harris v. Tumbridge, 83 N. Y., 92.

The case relied on by counsel for appellant, Pope v. Terre Haute Car Manf'g Co., 107 N. Y., 61; 11 N. Y. State Rep., 209, is not to the contrary, and a careful examination will be convincing that the court decided nothing more than that it was error for the trial court to deny the defendant’s motion for a dismissal of the complaint, the latter appearing to be defective, and the plaintiff failing to apply for leave to amend.

The objection as to the alleged omission to direct the judgment in the referee’s report is equally untenable. Section 1022 of the Code of Civil Procedure provides that the report “ must direct the judgment to be entered thereupon; ” but this does not comprehend an instruction or command to the person whose duty it is to enter judgment to perform that duty. The word “ direct ” as used in this connection is synonymous with the words “ to point out,” “to guide,” “to show,” “to regulate” (Webster’s International Dictionary), and as the Code fails to prescribe the particular manner in which the judgment shall be so directed, and the place in the report at which the direction shall appear, the judgment is sufficiently indicated to meet the requirements of the provision of the Code of Civil Procedure referred to, if from the whole or any part of the referee's report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained. In the present case the referee’s conelusion of law in concise and unambiguous terms states the amount of recovery to which the plaintiff is held to be entitled, and judgment thereupon was properly entered.

The evident purpose of the requirement that in a reference to hear and determine all the issues the report should point out or indicate the judgment to be entered in the action was to enable the clerk to comply with § 1228. of the Code of Civil Procedure, which authorizes him to enter judgment upon the report. If the report does not sufficiently point out the judgment to which the successful party is entitled, or because of some obscurity or ambiguity in the report a question as to the form of the j udgment, or the terms thereof, arises, the defect is not fatal and its effect is not to render the report a nullity. In such a case the party éntitled thereto must apply to the court to frame or settle the judgment to be entered. Maicas v. Leony, 22 Abb. 1 N. C., 1; 19 N. Y. State Rep., 705.

In an elaborate note to the case last cited the learned author says: “ If the referee decides the whole issues, that is to say, makes complete findings adequate for final judgment and fails merely to direct the form of the judgment, the court has power to supply the deficiency, and if necessary, by reason of the absence or disqualification of the referee, or otherwise, will do so. It may do so either by itself framing the judgment or referring it to a referee to report a proper form of judgment. But, properly viewed, this is not an assertion of the power of the court to finish the trial of a cause which the referee has not completely tried, but only an exercise of the power of the court to instruct the clerk as to what judgment is in legal effect directed by the report when the referee has fully tried the cause and fully reported, but merely failed to prescribe the form in which the record shall show it. * * * The function of the court in putting an informal report into the form of a judgment is really in aid of the clerical functions of the clerk, and not in aid of judicial functions of the referee.” This appears to be a correct view, and we adopt it.

An omission to apply to the court for judgment where such application is necessary to the entry of judgment is an irregularity only and does not render the judgment void, Bissell v. N. Y. C. & H. R. R. R. Co., 67 Barb., 385; the remedy is by motion to set aside the judgment, not by appeal. Rumsey’s Practice, vol. 2, p. 565 ; People ex rel. Oswald et al. v. Goff, 52 N. Y., 434; Kenney v, Apgar, 93 id., 539, and so long as the judgment is permitted to stand its validity is in no wise affected or impaired because of any informality in the entry thereof. Code of Civil Procedure, § 721, subd. 11. Such informality may be waived also by express stipulation, or by conduct which precludes the party from taking advantage thereof. An adoption of the judgment for the purposes of an appeal upon the merits of the controversy thereby determined constitutes such a waiver, as the appellant cannot assert the validity of the judgment on such appeal, and at the same time assert its invalidity because of a mere informality in its entry. Valentine v. Heydecker, 8 N. Y. W. Dig., 478.

The judgment appealed from should be affirmed, with costs.

Daly, Gh. J., concurs.


author: Daly, Ch. J.

text:
    Philip W. Germann, Resp’t, v. The Suburban Rapid Transit Co., App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Negligence—Railroads.
    The plaintiff was an employe of a contractor who was finishing an elevated station for defendant. Trains were constantly running and work had to be done at intervals. An engineer of defendant had brought in a train which was taken back by another engine. A person whom plaintiff was bound to obey ordered him to go under the platform. The engineer in question was about to back down and plaintiff knew this. The engineer could have seen plaintiff by looking out of the cab. He backed down without warning and plaintiff was caught between the tender and platform. Held, that a recovery was proper.
    2. Same—Damages.
    The plaintiff earned three dollars per day and received an injury from which it was likely that the pleura would always adhere to his lung. He testified, two years after the injury, that he had severe pain in the lung, and that at times he could not work. Held, that a recovery of $5,50(1 was not excessive.
    _ Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      James R. Marvin, for app’lt; Leopold Leo, for resp’t.
   Daly, Ch. J.

This is an appeal by the defendant, The Suburban Bapid Transit Company, from a judgment in favor of the plaintiff entered upon the verdict of the jury for the sum of $5,500 awarded for personal injuries sustained through the alleged negligence of the defendant, and from an order denying the defendant’s motion for a new trial.

The accident to the plaintiff occurred at the then terminus of the defendant’s road, at 170th street and Third avenue in the city of Mew York, where the defendant had a station elevated above the street, which station was then in process of erection or completion, the work upon it being performed by one Gustavesson under a contract with the railroad company. The plaintiff was a journeyman carpenter employed by Gustavesson in the said work, arid had been engaged upon it at said place five or six weeks with others in the same employment. Trains were arriving and departing at this terminus at intervals of five minutes, and the work by the mechanics there was done “byfits and snatches,” as “they had to wait their opportunity to jump in between trains all the time.” There was but a single track, and when a locomotive brought a train to the station it left it there and went a few feet beyond the end of the station platform; another engine came up and took the train out for the next trip, and then the first engine backed down after the outgoing train and went down the track and was switched off to wait for the next train, to take it out for the succeeding trip. The single track at the station was so close to the station platform that the locomotive tender and cars when alongside the platform were not more than five inches from it. The injury to the plaintiff was occasioned by'his being caught be"tween the end of the platform and the tender of a locomotive, which, having in the customary manner brought a train to the station and left it there, had gone a few feet beyond the northerly end of the station to back down to follow the outgoing train in order to be switched off and wait for another.

The plaintiff when caught was in a stooping posture, about to ■crawl under a short flight of steps at the northerly end of the station platform, in order to get down upon the cross beam which supported the station, for the purpose of assisting in raising some boards from the street up to the railway structure to be used in the work upon which he was engaged. He had seen this locomotive ■coming to the station with its train and had stepped aside to the west of the track to avoid it. He had seen it coupled from the ■cars apd move a few feet beyond .the station platform and come to ' a stand there. He was called by a fellow workman, who though not his foreman had some direction of the work he was engaged in, and whose orders he was bound to obey. This person stood •alongside of the short flight of steps above mentioned, in a very narrow space between those steps and the track. The plaintiff went across the track and went beside him, and when crossing was seen by the engineer of the locomotive. When the plaintiff reached the side of the person in question the latter ordered him to go down under the steps by which they stood to get the boards. The engineer saw them there. The plaintiff turned to obey this •order, stooped to crawl under the steps, the locomotive was backed down, the tender caught the plaintiff and crushed him against the corner of the station which was just ahead of the flight of steps under which he was creeping.

The engineer of the locomotive did not look to see if the plaintiff was still standing at this place. He could have seen, but it would have been necessary, he says, for him to put his head out at the window to do so. He gave no warning of the starting of the locomotive and none was ever given, but the plaintiff knew it and knew that the locomotive backed down very shortly after the ■departure of the train.

The jury found by their verdict that as between the plaintiff and the company the latter, in the operation of its locomotives and trains at that point, was the sole cause of the accident, and the ■evidence is sufficient to sustain its finding. There was no negligence on the part of the plaintiff which the jury were bound to find contributed to the injury. He was lawfully upon the defendant’s railroad structure in the performance of his duty in assisting to build a station, by defendant’s authority, and under the direction of his employer. The work had to be done, as described, “ by fits and starts,” as the coming or going of trains permitted, and the men had to watch their opportunity to jump in between trains all the time. It would have been negligence to have ■crossed in front of a moving train approaching so near as to render a collision probable, but it was not negligence to cross in front of a train which was standing still in order to stand beside it, and it was a fair question for the jury whether, the train being at a standstill, it was negligence for the plaintiff to stoop down and attempt to. creep under the steps in such a position that if the train moved it would be certain to strike him.

What conduct on the plaintiff’s part was prudent, tested by the standard of ordinary care which he was bound to exercise, depended upon the circumstances. He saw that he was observed by the engineer when he was called to cross in front of the tender, and after he stood beside the steps, and he might have had the right to rely upon the exercise of ordinary prudence on the part of the engineer in looking to see whether he had gotten out of the way.

There was evidence to sustain the finding of negligence on the part of the engineer of the locomotive. He knew that the carpenters were working there on and about the platform all the time at that" time; he had warned this plaintiff that day, or the day before ; he saw him cross before the tender on this occasion, and he saw him standing with the other workman who called him, beside the steps, and whether it was an act of ordinary prudence to back his engine, without warning, in the direction in which he had seen the plaintiff standing, and without .looking to see whether the plaintiff was so near as to be in peril, was a question for the jury. The other workman, whom the plaintiff calls the foreman and who remained where he and the plaintiff had been standing when the engineer saw them, was struck on the arm by the locomotive when it was backed down and narrowly escaped injury. So that, as the plaintiff stood before the locomotive backed down, he was in a position where he was likely to be hurt if the engine was moved, and it was at least a question for the jury whether the engineer ought to have mo.ved the locomotive without looking to see whether plaintiff had left the spot. The evidence, I think, showed want of ordinary care on his part and the verdict of the jury ought not to be disturbed.

There is one exception which has not been disposed of by the foregoing considerations; the admission of the evidence by the physician as to the effect of the plaintiff’s injury. It is claimed to be error, on the ground that the doctor had not examined the plaintiff since about six weeks after the injury and had not seen the plaintiff in eighteen months before the trial. The evidence is, however, that the doctor examined him six or seven months before the trial, and while he had attended him continuously for the first six weeks after the injury he had since that time treated him twelve or fifteen times.

It is claimed that the damages were excessive, because the plaintiff was enabled to continue his work at the end of six weeks after his injury, and there was not sufficient proof to show his injury would be permanent. The plaintiff at the trial, two years after the injury, testified that the pains in his lung were as severe as they were in the beginning; that he could not lie on his back because of the pain in his lung. He is fifty-five years old.

The injury was the breaking of two ribs and the laceration of the pleura of the left lung, and the reasonable certainty, according to the testimony of the physician, was that there would be permanent adhesion of the pleura to the lung tissue. He was unable to work for six months after the accident. His earnings had been $2.50 to $3.00 per day, and he could work every day in the week before the qccident Now he can only work a few days in the week sometimes.

A verdict for $5,500 is not excessive. I do not think the inj uries were exaggerated by the plaintiff, or that the jury were misled and overrated them, or awarded anything from passion or prejudice.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    William T. P. Brown, Resp’t, v. The Baldwin & Gleason Co., Limited, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Trial—Waiver of right to go to the jury.
    In an action for damages for the alleged wrongful discharge of plaintiff - from defendant’s service the appeal was from the judgment only, and the case exhibited no statement that it contained all the evidence. The defendant made no motion for a nonsuit, nor asked the direction of a verdict in its favor. The plaintiff asked such a direction, and it was granted. Thereafter the defendant asked to go the jury upon the question of the amount (of damages). Held, that this was a waiver of the right to go to the jury upon any other question, e. g., the question of wrongful discharge.
    2. Master and servant—Discharge—Evidence—Custom.
    In an action for wrongful discharge, the defendant offered to prove that by the custom of that trade it was the duty of a traveling salesman “ to get up his own samples.” This was excluded as immaterial. Held, error.
    3. Same—Drunkenness of a salesman.
    In such an action, under a general denial, the defendant may prove that the plaintiff was discharged for drunkenness.
    4. Same.
    The agreement of the parties was that plaintiff should receive twenty-five dollars a week, his ‘' traveling expenses to he borne ” by the defendant, Held, that a recovery for “hoard, car fare and lunches” incurred after he had left defendants’ service was improper.
    Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff on a verdict, in an action for damages by wrongful discharge from defendant’s service.

      De B. Wilmont, for resp’t; E. G. Duvall, Jr., for app’lt.
   Pryor, J.

The appeal is from a judgment only, and the case exhibits no statement that it contains all the evidence. We are confined therefore, to the review of errors of law duly raised by exceptions in the record.

Appellant urges that the trial court erred in directing a verdict; and, since the plaintiff himself was the only witness in his behalf, the contention would probably be valid, if the appellant had not ‘ waived its right to go to the jury on the question of the wrongful discharge of plaintiff. Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609; Wohlfahrt v. Beckert, 92 id., 490. True, the appellant made no motion for a nonsuit or the direction of a verdict; and had it rested there, it might now claim that whether respondent was wrongfully dismissed should have been submitted to the jury on conflicting evidence. Exit, appellant followed respondent’s motion for a direction in his favor by a request “to go to the jury upon the question as to the amount.”

Here was a distinct concession that, upon the evidence, there was no issue for the jury except the amount of damages, and a waiver of the right to go the jury on any other question. Since the evidence as to the fact was contradictory, we are to assume that the court would not have taken the question of respondent’s discharge from the jury had not appellant, in effect, admitted that the only issue for them was the amount of damages. Having so assured the court at' the trial, appellant cannot now and here retract the concession. Hence, the wrongful discharge of respondent is, on this appeal, an unimpeachable fact

But, if the court erred in the rejection of evidence proving the misconduct of respondent as the cause of his discharge, such error would be fatal to the judgment; for we could not say but that, had the trial judge received the evidence, he would have believed it, and have considered it as sufficient in law to justify respondent’s dismissal.

It appears by the contract between the parties that respondent was engaged “ to serve this company exclusively and actively as travelling salesmen for our Christmas, Valentine and Easter novelty business;” and the evidence tended to show that respondent was discharged because “ he refused to make up samples.” Appellant offered to prove that by the custom of the trade, it was tire duty of a travelling salesman “ in that line of business to get up his own samples.” The evidence was objected to on the ground that it was “ irrelevant and immaterial, the contract speaking for itself;” and being excluded, appellant duly excepted.

Irrelevant and immaterial the offei’ed evidence certainly was not; for it was directed to the essential issue in the case, the wrongful discharge of respondent. Doubtless the learned trial judge rejected the evidence on the ground that a written contract cannot be added to or in any way altered by oral testimony.

By the contract, the respondent was “ to serve as travelling salesman;” but what were his duties as such is not defined, nor does the law determine them. Parol evidence of trade usage ascertaining those duties was, therefore, in no sense contradictory of or inconsistent with the terms of the written instrument, but tended only to show the full meaning and effect of the words “ travelling salesman. ” “ Parol evidence is competent to annex incidents to written instruments, to explain a particular word or phrase appearing therein, or to clear up and render definite and precise what was indefinite and ambiguous.” Broom’s Comm, on the Com. Law, 518, (3d Eng. Ed.) In Metzner v. Bolton, 9 Exch., 518, a leading case, the declai'ation stated that the plaintiff entered into the service of the defendant as a commercial traveler at a yearly salary, and that the defendant agreed to continue him in his employ for a whole 'year, but discharged the plaintiff before the expiration of the time specified. The court ruled that evidence of a usage in the trade to dismiss with three months' notice was admissible to annex a term to the written contract; for, “ generally, usages are tacitly annexed to all contracts relating to the business with reference to which they are made, unless the terms of such contracts expressly or impliedly exclude them.” 2 Cowen & Hill’s Phillips on Evid., notes 510, 522 ; Hagan v. Machine Co., 9 Hun, 73; Knapp v. Warner, 57 N. Y., 668; Boorman v. Johnston, 12 Wend., 573. The evidence offered was clearly competent and its exclusion was error.

Another error by the court below also requires a reversal of the judgment, namely, the exclusion of evidence of plaintiff’s drunkenness. It was part of his case to prove, as alleged, his wrongful discharge; and, in conformity with a familiar rule, the defendant had the right, under a general denial, to negative any fact essential to the cause of action. Accordingly it was open to the defendant on the pleadings to show that the plaintiff’s dismissal was rightful because of intoxication. The evidence tendered should have been received.

Ruling by the learned trial judge, not noticed in appellant’s argument, should be indicated that it may be avoided on the new trial. By the contract it was stipulated that plaintiff should receive twenty-five dollars a week and his “ traveling expenses be borne ” by the defendant. By the verdict plaintiff was awarded $220 expenses for “ board, car fare and lunches,” incurred when he was no longer in defendant’s service and while he was “ m business for himself.” We are aware of no principle or precedent which justifies this recovery.

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

Daly, Oh, J., and Bischoff, J., concur.


author: Per Curiam.

text:
    Andrew W. Schelling, Resp’t, v. Cord Bischoff et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Sale—Fraud—Rescission.
    _ A judgment setting aside a bill of sale for fraud and false representations which is based on false representations found by the court, which representations appear by the testimony to have been made after the bill of sale was delivered, cannot be allowed to stand, although there were other circumstances of fraud which of themselves might require the cancellation of the bill of sale.
    Appeal by defendant from judgment entered upon findings and conclusions.

      Uriah W. Tompkins, for app’lts; Petter Coudon and G. A. Seixas, for resp’t.
   Per Curiam.

The action as it was tried involved the cancel-ling a bill of sale for fraud and false representation. The learned judge below, in his findings of fact, held that the bill of sale was obtained by means of fraudulent representations specified in the findings. The testimony of the plaintiff, however, was that the representations in the findings were not made before the bill of sale was delivered, but were made afterwards, when, as was alleged, the defendants procured from the plaintiff an offer to allow judgment to be taken against them in an action.

There were other circumstances of fraud found by the court which, it may be suggested, would suffice of themselves to require the cancelling of the bill of sale. But the findings show that the judgment was placed rather upon the fraudulent representations than upon the other circumstances of fraud.

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

Sedgwick, CL J., Truax and Dugro, JJ., concur.


text:
    Loring R. Millen et al., Resp’ts, v. John C. Fogg et al., Appl’ts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Reference—Long account.
    Where a long account is involved, and the character of the case as disclosed hy the papers shows that no difficult questions of law will arise, a reference may properly be ordered, although the only specific allegation as to such a fact is made by the plaintiff, who is not a lawyer.
    Appeal by defendants from an order of reference, granted on the ground that the trial of the action would involve the taking of a long account.

      L. J. Morrison, for app’lts; James G. Janeway, for resp’ts.
   Per Curiam.

Although the only specific allegation that there were no difficult questions of law was made by the plaintiff, who was not a lawyer, yet the character of the case, as disclosed by all the papers, showed there was no such question. Welsh v. Darragh, 52 N. Y., 590, and other cases, required that the judge below should malee the order appealed from.

Order affirmed, with ten dollars costs.

Sedgwick, Ch. J., Truax and Dugro, JJ., concur.


author: Truax, J.

text:
    Daniel Cunningham, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Railroads—Elevated—Damages.
    In the absence of evidence as to what the rents of the premises in question or those in the neighborhood were prior to the construction of defendant’s road, a finding of depreciation in rental value is not authorized by proof of the rental value of houses in other streets of a different size.
    Appeal from a judgment entered on the decision of the court at special term.
    The action was brought to enjoin the defendants and to recover -damages, etc.

      Davies & Rapallo, for app’lts ; Leo C. Dessar, for resp’t.
   Truax, J.

The trial court found that the plaintiff has suffered damage by reason of the lessening by defendants’ acts of the rental value of plaintiff’s premises in the sum of $2,300, and it also found that the plaintiff’s premises are worth $3,000 less than they would be worth if there had been no such taking of plaintiff’s easement of light, air and access.

To each of these findings the defendants excepted. Judgment was entered in the plaintiff’s favor for the said sum of $2,300, and ■the defendants were allowed to prevent the issuing of the injunction by purchasing the plaintiff’s easements for the said sum of $3,000.

I can find no evidence in the case showing any diminution to the rental value of plaintiff’s "premises. The plaintiff himself was called as a witness. He testified that he bought the premises after the Construction of the road. He gives the rentals that he had received for the said premises since the time that he purchased them, but there is no evidence in the case that shows, or tends to show, what the premises fetched. prior to the construction of the road, or what similar premises on this street or in this neighborhood fetched prior to the construction and operation of the defendant’s road. In other words, there is nothing with which comparison can be made.

It is true that the plaintiff did testify that he owned certain houses in the neighborhood, not on this street, but on other streets, and did give the rental value of some of those houses, particularly a house in Hew Chambers street, but no comparison can be made between this property and the property in Hew Chambers street. The house in Hew Chambers street is not quite the size of the property abutting the railroad. .

For the first floor above the store in Hew Chambers street the owner gets $23 50, while for the first floor in the property in suit he gets thirty-two dollars a month. For the second floor above the store in Hew Chambers street he gets twenty-two dollars a month, while for the second floor in the property in suit he gets thirty-one dollars a month. In fact, he seems to have got as much for the property in suit as for any other of his property in that immediate neighborhood. But even if he did not, we are unable to say from the evidence that the taking of the easements by the defendants caused the diminution in the rent.

The plaintiff also called a real estate agent and expert. This expert testified in reference to the sales of certain property in the immediate neighborhood of the property in question. For instance, he testified that Ho. 92 East Broadway sold in Hovember, 1875, for $8,600. In Hovember, 1884, Ho. 94 East Broadway, a building of the same size as 92, sold for $13,500. Ho. 76 East Broadway sold in May, 1878, for $12,000, and in August, 1888, for $21,750. Ho. 149 East Broadway sold in March, 1883, for $17,500, and in September, 1883, for $19,500. Ho. 146 sold in April, 1883, for $19,500, and in October, 1883, for $20,500, and in January, 1884, for $21,000. Ho. 47 sold in January, 1878, for $14,150;' in March, 1888, for $21,000, and in April, 1888, for $23,000.

This evidence does not warrant the findings of fact, or either of the findings of fact, above referred to.

It is impossible to say from this whether the plaintiff has suffered one dollar of $2,300 damages by reason of the lessening by the defendants’ acts of the rental value of the plaintiff’s premises ; and it is also impossible to say whether or not plaintiff’s premises are now worth $3,000 less than they would be if there had been no taking of plaintiff’s easements of light, air and access.

It may be that the evidence would warrant us in continuing the injunction against the defendant, but we think that the interests of all the parties will be best preserved by granting a new trial and leaving the plaintiff to such motion as he may see fit hereafter to make in reference to the injunction.

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

Dugro, J., concurs.


text:
    Diedrich J. Benson, Resp’t, v. The Manhattan Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Appeal from a judgment entered upon a decision of the court after a trial at an equity term.

      Davies & Rapallo, for app’lts ; Leo C. Dessar, for resp’t.
   Per Curiam.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event, for the reasons assigned by this court in Cunningham v. The Same Defendants, decided at this general term.

Truax and Dugro, JJ., concur.


text:
    Charles H. Traitteur, Resp't, v. James Levingston, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Appeal—Opening default.
    An order setting aside a default taken on failure of plaintiff to appear is discretionary and not appealable.
    2. Default—Pleading.
    On motion to open a default it is discretionary with the court to refuse to decide the question as to the effect of a failure to reply to a counterclaim and refer it for determination to the ordinary proceedings in the action.
    3. Same—Teems.
    Where it is claimed that the failure of plaintiff’s attorney was due to an arrangement with the other side, which arrangement was denied, but the preponderance of evidence as to its existence is in favor of plaintiff, the court has a right to consider this in settling terms.
    Appeal by defendant from an order setting aside a dismissal of complaint on payment of the disbursements.
    The action is one brought to recover damages alleged to have resulted from the negligence of the defendant. The defendant, by his answer, denied that there had been any negligence on his part, and, as a counterclaim, set up that the plaintiff himself was the party in fault; that by reason of plaintiff’s negligence defendant had‘been injured, and demanded judgment for his damages. To •this counterclaim the plaintiff failed to reply.

      George W. Stephens, for app’lt; George Finch, for resp’t.
   Per Curiam.

The dismissal of the complaint was ordered at trial term, the plaintiff not appearing. The court below used a judicial discretion in setting aside the default which cannot be reviewed.

The learned counsel for appellant argues that the record showed that the plaintiff had no right of recovery.

The action was for damages from defendant’s alleged negligence. The answer contained a general denial of the averment of the complaint. It then made a counterclaim, for damages from plaintiff's alleged negligence in a transaction which it will be assumed appears by the pleadings to be the same transaction that •the complaint referred to. The counterclaim averred that the plaintiff was negligent. To this counterclaim there was no reply, and the position for defendant is that by § 522, Code Civil Procedure, for the purposes of the action, the allegation of the answer must be taken as true.

It was within the discretion of the judge to' refuse to decide this matter upon motion and to refer it for determination to the ordinary proceedings in an action and especially in view of the possibility that the plaintiff would procure, if it were proper, relief against the consequences of a want of a reply.

The terms upon which the default was opened were complained of. It appears by the affidavits that the plaintiff’s attorney’s in not appearing acted upon what he supposed was an arrangement with the other side. The arrangement was denied, but the plaintiff may have believed it was made. As to its existence the preponderance of proof was with the plaintiff. The court had a right to consider this, in settling terms.

Order affirmed, without costs.

Sedgwick, Oh. J., and Truax, J., concur.


text:
    Artemas H. Holmes et al., App’lts, v. George S. Evans et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Refebexce—Opening—Code Civ. Pbo., § 734.
    • The court has no power under § 724 of the Code to vacate a report of a referee and direct the taking of new testimony by him. That section has no application to motions for new trial on the ground of newly discovered evidence, but is confined to cases of mistake, inadvertence, surprise or neglect.
    Appeal from an order denying a motion made by the plaintiffs to open and vacate the report and findings of the referee herein, and to take the testimony of another witness; and to direct the referee to proceed herein as if his said report had not been delivered.

      William B. Hornblower, for app’lts; Theodore C. Tomlinson, for resp’ts.
   Truax, J.

It was contended on the argument that the court had power under § 724 of the Code of Civil Procedure to grant the relief asked for. That section provides that the court may in its discretion * * * relieve a party from a judgment, prder or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.

The judge at special term said on denying the motion that the only way in which the relief plaintiffs desire can properly be sought is by a motion for a new trial upon the ground of newly discovered evidence, and that to hold otherwise would be to aid "in the establishment of a vicious precedent, and one contrary to settled rules, and that there can be no relief accorded under § 724 as there has been no mistake, inadvertence, surprise or neglect within the meaning of the terms as used in that section.

We are of the opinion that the learned judge did not err in making the order from which the appeal is taken. Section 724 has no application to motions for new trial on the ground of newly discovered evidence. First National Bank v. Heaton, 6 Thompson & Cook, 38.

The wording of the section is plain enough. It authorizes the court to relieve a party from his mistake, etc. Here there was no mistake, no inadvertence, no surprise, no excusable neglect.

Perhaps a motion for a new trial on the ground of newly discovered evidence would lie; but such is not this motion. In such a motion a case should be made and presented to the court. Thayer Manufacturing Company v. Steinau, 58 How., 315.

The order appealed from is affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Dugro, J.

text:
    Fred. Stone, Resp’t, v. John Devlin, App’lt.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Sale—Parties.
    Where the evidence when the plaintiff rests is such that the jury could properly find a sale and delivery of the goods in suit to defendant, and does not show that one R. was his partner, a refusal to dismiss on the ground of the non-joinder of R. as a party is proper.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action for goods sold and delivered. Defendant claims that one John W. Rutherford should have been joined as a defendant, and moved to dismiss on that ground, which motion was denied.

      Sanford H. Steele, for resp’t; Horace Graves, for app’lt.
   Dugro, J.

This is an appeal from a judgment entered upon the verdict of a jury, and an order denying a motion for a new trial upon the minutes.

When the plaintiff rested his case, there was evidence from which the jury could properly conclude that the materials in suit were sold and delivered to the defendant, and that he was justly indebted to the plaintiff for the amount of the verdict.

The plaintiff’s case did not show that Rutherford was defendant’s partner.

The charge presented the question at issue fully and fairly, and was subject to no valid exception.

The judgment and order should be affirmed.

•Truax, J., concurs.


author: Gray, J.

text:
    The People, App’lts, v. Alfred L. Simonson et al., Resp’ts.

      (Court of Appeals,

      Filed April 28, 1891.)

    1. Will—Trusts—Suspension op power op alienation.
    Testator by his will gave a large sum to a hospital to be called by his name, and directed his executors to apply for a charter therefor, and, in case of the death of the longest lived of them before it was granted, gave the fund to the city of New York for such purpose. Four executors were named, of whom three qualified. By a codicil he revoked the bequest and applied it to founding a musical college, and directed that appropriate legislation be adopted to perfect its incorporation as near the plan with regard to the hospital as possible. Held, that the will was void as suspending the power of alienation beyond two lives in being.
    2 Same—Attorney-general.
    It is not the province of the attorney-general to enforce the rights of the next of kin where it is claimed that there has been malversation in office by trustees or executors.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment dismissing plaintiff's complaint.

      B. E. Valentine, for app’lts; J. T. Marean and E. Schenck, for resp’ts.

       Affirming 28 N. Y. State Rep., 97.

   Gray, J.

The institution of this action by the attorney-general of the state was with the object of establishing a testamentary trust for public and charitable purposes, under the provisions of the will of Samuel Wood, deceased. The complaint charged the executors of the testator with wasting, squandering and appropriating to their own uses a large part of the residuary estate, and with having undertaken, by collusive proceedings in the courts, to defeat the testator’s charitable provisions. The defendants in their answers objected, among other things, that the charitable trusts attempted to be created by the will were invalid. When the issues came on for trial the defendants’ counsel moved for a dismissal of the complaint, inasmuch as upon its face it disclosed no cause of action, for the reason that the disposition of the residuary estate, made by will and codicil, was void. The trial judge took that view of the complaint and dismissed it, and his decision has been sustained by the general term.

We think their judgments were right. The testamentary dis-1 positions in question were illegal, because they clearly contravened those provisions of the law which limit the period of time during which the ownership and power of alienation of estates may be lawfully suspended. That is the only proposition we are asked to review upon this record. The determination below, adversely to the claim of the People, concluded their action at once, whatever other questions were raised upon the pleadings or might have been discussed. The charges against these executors are most grave and may not be without foundation as to their administration ; but the testator’s next of kin are the persons affected and the law affords adequate remedy for any malversation in office by trustees or executors. That is not the province of the attorney-general in such cases.

By his will Samuel Wood gave his residuary estate to his executors in trust “ to create, endow and forever maintain an institution in the city of New York to be called ‘The Samuel Wood Benevolent Institute,’ ’’ and he directed them, upon his decease, to apply to the legislature for an act incorporating it, with power to take and hold real estate and “ to be governed as hereinafter provided.” He then proceeds to define the purposes and object for which that institution should be entrusted with the property to be conveyed to it by his executors. By a subsequent clause of the will, “ in order' to secure harmony, efficiency and unity in the management of said institute,” he appoints his executors its “sole and permanent trustees,” and required that “they be inserted in any act of incorporation as such trustees,” and provided that they should fill vacancies occurring in their body “so long as such institute shall exist as a corporate body or otherwise.”

By a codicil the testator makes changes in his.will and directs “ that the devise and bequest provided in my said will, with regard to the founding of “The Samuel Wood Benevolent Institute, * * * be changed and the provisions thus made therefor be applied to the founding of a musical institution, to bo known and called ‘The Samuel Wood Musical College.’ * * * It is my wish that a college of music be formed in the city of New York and that appropriate legislation and means be adopted to perfect the incorporation and general plan of the institution as near or similar to the plan or method given in my will with regard to the formation, of ‘The Samuel Wood Benevolent Institute.’ ”

For some undisclosed reason the testator, by this codicil, abandoned his previous testamentary scheme for a benevolent institution, the general purposes of which, beyond the care of certain relatives, contemplated the maintenance of a hospital, and he directed the creation of a college of music; but, as it is quite apparent from the language he used in changing the application to be made by his executors of his residuary estate, the college of music was to be incorporated and organized upon the same plan as the Benevolent Institute. He says that the provisions made for the latter were to be applied to the founding of the musical college; so that it would be the duty of the executors, in carrying out the later residuary scheme, to have recourse to the directions in the will, in relation to such matters as concerned the period of time within which the charter should be obtained, and the plan for the government of the corporation which the act of incorporation should prescribe.

The effect of this codicil is to substitute for the direction to the executors in the main will, to found and incorporate the Benevolent Institute described there, the direction to found a public institution with another object, namely, the musical education of the people. There was no revocation of the testator’s will effected, by the codicil, save only as to the nature of the public institution designed to be incoporated and endowed. The effect practically was to write into the will “ The Samuel Wood Musical College,” in the place of “ The Samuel Wood Benevolent Institute,” as the beneficiary intended for the residuary gift, and to apply to it the same provisions as to incorporation and for a plan of corporate management. We have then, as we had in the will, the case of a gift to an unincorporated, non-existent institution, as in Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738 ; an authority which I think must be controlling upon the disposition of this appeal. Since the case of Burrill v. Boardman, 43 N. Y., 254, the non-existence of the corporate object of the testator’s bounty cannot be urged as a fact of itself sufficient to defeat a testamentary trust. In that case the residuary bequest was for the founding- and maintenance of the Roosevelt Hospital, in Hew York city. The trustees were directed to apply to the legislature for an act of incorporation and a limitation of two lives was inserted in the gift as the time within which the legislature must act; failing which action a gift over was made to the United States government. In that case it was determined, as a new question, that the non-existence of the corporation intended as the object of the testator’s bounty would not defeat his gift, if the incorporation was directed to be effected within the period allowed for the vesting of future estates.

An executory bequest to the use of a corporation so to be created was upheld as valid. That case was a very pronounced departure from what was supposed to be the rule governing charitable bequests. The principle of the decision was that the bequest was not one to take effect as a gift in presentí upon testator’s death, but was limited to take effect upon the formation of the corporation designed; and as the contingency upon which the limitation depended was possible and must happen within the period allowed by the law for the vesting of future estates, the bequest was as good in law as though it had been' to the use of an unborn child. The application of that legal principle prevented the avoidance of the bequest on the grounds urged, by Judge Comstock, the appellant’s counsel, that the corporate donee was uncertain, and that the doctrine of charitable uses could not be invoked in its support. The decision was placed without the sphere of that argument and within the doctrine and rules of law which govern in cases of executory bequests. Since that case to the present day, through various decisions of this court, of which Shipman v. Rollins, 98 N. Y., 311, and Cruikshank v. Home for the Friendless, 113 id., 337; 22 N. Y. State Rep., 738, are prominent exponents of our views, the non-existence, or non-incorporation of the corporation designed by the testator cannot be considered as facts determinative of the invalidity of the testamentary bequest. The question of validity is to be determined by a consideration of whether the conditions of the law are met as to the vesting of estates. Those conditions are to be strictly maintained and their violation sedulously guarded against. Since the decisión of Bascom v. Albertson, 34 N. Y., 584, which definitely held that the English law of charitable uses had been cast off in this state, it has been no longer open to question that a trust, or a use, is only valid when within our statutes which regulate the creation of uses and trusts and the period within which the ownership and the power of alienation of estates may be suspended. They constitute the sole guide in determining the validity of all trusts. The effect of the decision in Burrill v. Boardman, supra, was to extend the protection of the statutes to cases of executory bequests where the corporate beneficiary, in which the equitable title was to vest, might be non-existent; and to sustain the trust because the corporation was possible of creation and could take within the lawful period for the vesting of future estates. ■ The intended beneficiary, if capable of being incorporated under the law, in the manner and for the purposes described by the testator in his will, would not be obnoxious to the particular objection of indefiniteness.

In the recent case of Cruikshank v. The Home for the Friendless, supra, the executors were to apply as soon as practicable to the legislature for an act incorporating the home. The trust was held incapable of being sustained, for the reason that the incorporation was dependent upon the will of the legislature, and its consent, however reasonably to be anticipated, nevertheless, was not a certain result of the application to be made to it, and there would be a period of delay contingent upon the action of the state and not measured by lives.

In the present case it is contended that as at the time of testatator’s death a general law bad been enacted and was in existence, authorizing the kind of corporation mentioned by the testator, there was no necessity of applying to the legislature for a charter. The law referred to is contained in chapter 176 of the Laws of 1875, and was passed by the legislature before the making of the codicil and undoubtedly comprehended the several objects designed to be promoted by the testator by the use of his residuary estate. If the bequest were to a corporation to be created by the trustees of the will and which could be at once incorporated and organized under that general law, a new and interesting queS' tion would be presented. It might very well be said, in such a case, that as it would be the duty of the trustees of the will to act at once in procuring the incorporation, the delay in the incorporation would be but a mere incident to a certain result. Robert v. Corning, 89 N. Y., 225 ; Cruikshank v. Home for the Friendless, supra. The argument of appellants’ counsel upon this subject would find some apparent support from the reasoning in the opinions in the cases of Burrill v. Boardman and Cruikshank v. The Home for the Friendless.

If by the terms of a testamentary gift in trust of property its ownership must be necessarily uncertain for a period of time not measured by the statutory lives, the statute intervenes and condemns it. But where the delay is merely incidental and caused by the formalities and details of incorporation of the body to take, and its creation is possible and certain to be effected under the general law, in accordance with the directions of the testator, it might present a fair question whether the law would be violated, if we apply to such a case the principles stated in the opinions in Burrill v. Boardman and Robert v. Corning. But we are not called upon to decide that question now. Such is not the case before us.

It was argued in the Cruikshank case, in the endeavor to save the trust, that the home might be incorporated under the general law; but the argument was ineffectual. We held that the testator had not intended such a corporation, but had specifically required one formed under a special charter and that we could not substitute something different and outside of his expressed purpose. In the present case the same difficulty arises, if we would strive to sustain the trust for the musical college. The general law, enacted in 1875, requires incorporation under its provisions upon a different plan. The corporation to be created must have not less than seven trustees, whereas the testator here requires that the management shall be by his three executors as “sole and permanent trustees,” and provides for their being a self-perpetuating body. This requirement is in an especial clause of the will, following after the direction for the creation of the benevolent institute. It appears to be of the essence of the testamentary scheme and is the mode of government referred to in the previous direction for the creation of the institution by the language “to be governed as hereinafter provided.” These provisions are not revoked by the codicil, neither actually nor constructively. On the contrary, they are explicitly retained and made applicable to the institution substituted by the codicil in the place of the one mentioned in the will.

Thus, if we consider the argument that the musical college could be incorporated under the act of 1875 and thereby become competent to take-the testamentary gift, we are met by the difficulty that the restrictions of that act make it inappropriate to the testator’s design, an objection, which, under our decision in the Oruilcshank case, cannot be disregarded and passed over. If the argument is that appropriate legislation may be had, modifying the general law in the respects desired by the testator, so as to permit of the incorporation, we would still encounter the objection stated in the Cruikshank case that the creation of the corporation would be dependent upon the will of the legislature; and, hence, a delay would be certain to ensue, contingent not upon lives, but upon the consent of the legislative body, which might be withheld. As the period of time for obtaining a charter for an institution, of similar design in plan or method to that required for the benevolent institute, was limited by the testator to be within the life of the longest liver of his executors, of whom there were three named in the will, and in the codicil the number was increased to four, the delay in the vesting of the bequest would exceed that permitted by the law, which limits the suspension of ownership and of the power of alienation of property to two lives in being.

These views lead to an affirmance of the judgment. The respondents should have their costs of the appeal to he paid by the appellants.

All concur.


author: O’Brien, J.

text:
    William D. Shipman et al., Resp’ts, v. The Bank of the State of New York, App’lt.

      (Court of Appeals,

      Filed April 28, 1891.)

    1. Banks—Payment of checks with fobbed bndobsements—Estoppel.
    A clerk of the plaintiffs, a law firm, in charge of their loan department, by fraudulent representations induced them to give him checks drawn on the defendant bank, payable to names given by him, and which proved to be mostly fictitious, and then forged endorsements on such checks and procured payment thereof from defendant, either directly of through another bank, without inquiry by defendant as to the genuineness of the endorsements. This went on for four years, during which time plaintiffs’ bank book was written up thirteen times, some of these forged checks being returned each time and examined by their cashier. Reid, that there was nothing done or omitted by the plaintiffs in the general conduct and management of their business, or in the employment and confidence reposed in said clerk, that estopped them, in an action upon defendant’s implied promise to pay the money deposited by them, from alleging that the checks were paid without their authority, and such payment by defendant was no defense to said action.
    2. Same—Checks payable to fictitious pebson—1 R. S., 768, § 6.
    The provision of the statute that checks payable to the order of persons having no existence are in legal effect payable to bearer, applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person.
    3. Same.
    Ten of the eleven checks made payable to real persons were mad<e good by the clerk to the payees. Held, that this could not be set up by defendant as a partial equitable defense, and the refusal by the referee to find that plaintiffs are not entitled to any sum on account of or by reason of the payment by defendant of the same, was not error.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiffs, entered on report of referee.

      William Allen Butler, for app’lt; Elihu Root, for resp’ts.

       Affirming 36 N. Y. State Rep., 966.

   O’Brien, J.

This appeal brings here for review a judgment of over $223,000, recovered by the plaintiffs against the defendant upon a state of facts fully found and stated by the referee in his report, and, in regard to which, there is little if any serious dispute between the parties. The form of the action is for the recovery of a sum of money which it is claimed the defendant undertook, when accepting the plaintiffs’ deposits, to pay to them or upon their order and direction. It has been found, and is admitted on both sides, that on the 7th of April, 1884, the plaintiffs had upon deposit to their credit with the defendant the sum of $14,499.08. That from this date to the close of business on the 3d day of October, 1888, the defendant had and received to and for the use of the plaintiffs various other sum's of money, deposited from time to time between these dates by the plaintiffs with the defendant, amounting in the aggregate to $6,213,586.71. That' between the 7th day of April, 1884, and the close of business on the 3d day of October, 1888, the defendant paid to the order of the plaintiffs, on their checks drawn against the balance above stated and the deposits subsequently made, various sums of money amounting in the aggregate to $6,030,040.29. This would leave a balance due to the plaintiffs by the defendant of $198,045.50, which, with interest, is the sum that constitutes the subject of ihis controversy.

The defendant alleged in its answer that all moneys deposited with it by the plaintiffs were fully paid upon their order and by checks drawn upon it by them, and in order to meet and disprove the plaintiffs’ claim that there was due to them from the defendant at the close of business on the 3d day of October, 1888, the sum of $198,045.50, the defendant produced twenty-seven checks, all signed by the plaintiffs and drawn upon the defendant, directing the payment of sums respectively aggregating the total balance above mentioned, and to recover which the plaintiffs brought the action.

That the defendant actually paid these checks is not disputed and the case is thus made to turn upon the question whether they are available to the defendant as lawful vouchers, establishing the fact that the moneys claimed by the plaintiffs were paid out by the defendant upon these checks according to the order and direction of the plaintiffs. A clear understanding of the question involved requires a brief statement of the facts and circumstances under which these twenty-seven checks were signed by the plaintiffs and presented to and paid by the defendant. The plaintiffs are a well known law firm in the city of New York, engaged in an extensive business which, in its organization, had a department known as the “ Beal Estate Department.” In this branch of their business they examined titles for clients who were lenders of money on bond and mortgage, carried out and completed such loans, and occasionally examined titles for clients who were purchasers of real estate. One of the members of the firm had general charge of this department, but the details of the business and the execution of the work was entrusted to subordinates. One James E. Bedell, a lawyer who had been admitted to the bar in the year 1868, and had been in the employ of the plaintiffs since 1873, assisting in the real estate department, was, in the year 1881, practically put in charge of the work of this department under the direction of the member of plaintiffs’ firm who had the general charge. Bedell was an experienced and capable lawyer. The plaintiffs believed that he was honest and trustworthy, and, prior to the discovery of the very extraordinary crime in connection with these checks, they had no reason whatever to suspect or distrust him. During the period covered by the transactions in question the plaintiffs employed one Dodge, a competent expert bookkeeper, who took charge of the plaintiffs books and acted as cashier. He kept the account between the plaintiffs and defendant. He filled out all the checks and made all the entries in the check books, and the checks, when paid by defendant, came to him with the pass book which was balanced by the defendant, and the vouchers, including the checks in question, returned with the book, from time to time, at frequent intervals. The course of the business in which the checks in question were issued was substantially as follows:

The plaintiffs’ client, who wished to make a loan through them, furnished the money, which went directly into the plaintiffs’ general bank account with the defendant. Against the sum to be loaned, and thus put to the plaintiffs’ credit, checks were filled up by Dodge, the cashier, from, a written statement made by Bedell, showing the amount required to pay liens or charges on the property to be mortgaged, the amount of the plaintiffs’ charges, and any.other items entering into the transaction, and the balance to be paid the borrower. After filling up the checks Dodge would take the check book, with the filled up checks, to a member of the firm for signature, showing him the entries in the check book of the deposit of the client’s money and the statement of Bedell as to the payments to be made, and thereupon the check would be signed by the plaintiffs, in the name of the individual partner to whom it was presented by Dodge, the firm name being engraved on each check, and the individual signature underwritten. Dodge would then take away the check book, and deliver the several checks to Bedell. In this manner the twenty-seven checks in question were entrusted by the plaintiffs to Bedell, their clerk, for delivery to the-payees, respectively, therein named, who were in good faith believed by the plaintiffs to be real persons, entitled to receive the amount of said checks, respectively, from them or their clients. The defendant paid the checks to a third person, upon an endorsement thereon of the payees named, forged by Bedell, who converted the proceeds to his own use. The names of the payees written in sixteen of the twenty-seven checks, drawn for sums aggregating $112,818.72, were not the names of real, but fictitious persons. The remaining eleven checks, drawn for sums aggregating $85,227.08, were made payable to the order of real persons, whose endorsements were in every case forged by Bedell. Only three of the checks, drawn for less than $2,400, were paid to Bedell by defendant. All the others were deposited from time to time in various other banks in the city of New York, and the money thereon received by Bedell from these banks and the checks all ultimately paid by defendant through the exchanges in the clearing bouse, in the due and regular course of business. As to the sixteen checks payable to the order of fictitious persons, the plaintiffs were led by fraudulent contrivances and representations on the part of Bedell, the details of which appear in the record, to believe, and they did in fact believe, until the discovery of the forgeries, that such payees were real persons; and as to all the checks, the plaintiffs did not intend that any of them should go into circulation or should be paid by the defendant otherwise than through a delivery to and endorsement by the payee named therein.

The checks were paid in every case by the defendant without any inquiry as to the genuineness of the endorsements and in reliance upon the responsibility of the parties presenting the same, and not in reliance upon anything done or foreborne by the plaintiffs, except that they were signed by them. There is no claim that, at the time the defendant paid the checks, it had any knowledge or suspicion or reason to suspect that any of the endorsements were forged, or that any of the names were fictitious, or that there was any fraud or irregularity in respect to any of the checks- or any endorsement or writing thereon. The plaintiffs’ confidence in Bedell and his representation of them in all their dealings with clients concerning loans on real estate continued without interruption until one of these clients, upon examining a fabricated mortgage sent to him by Bedell, had his attention arrested by the faintness of the impression of the seal of the register on the certificate of record, that he sent the mortgage to the register’s office for a better sealing. This led to the discovery of all the frauds,- forgeries, fabrications of documents, attestations and official Certificates carried on by him in the plaintiffs’ office for more than four years. The plaintiffs did not discover that the endorsements on the checks had been forged, or that the amount thereof had not been paid to them or their order until nearly four months after May 22, 1888, which was the date of the last check so forged. On the discovery of the facts, and before the commencement of this action, the plaintiffs tendered the checks to the defendant, and demanded that the amount of the same should be paid to them, or credited in their account by the defendant, which tender and demand was refused.

The various deposits of money made from time to time by the plaintiffs with the defendant created the relation of debtor and creditor, and the law implies a contract on the part of the defendant to disburse the money standing to the plaintiffs’ credit only upon their order and in conformity with their directions. The defendant is not entitled to charge against the plaintiffs’ account any sums' as payments unless they have been made to such persons as the plaintiffs directed. Such payments as were made without the order of the plaintiffs of their funds by the defendant afford it no protection when called upon by the plaintiffs to account for the money deposited.

Payments made upon forged endorsements are at the peril of the bank unless it can claim protection upon some principle of estoppel or some negligence chargeable to the depositor. These rules are familiar and so well established and illustrated by the adjudged cases that a bare reference to them is all that is needful here. Crawford v. West Side Bank, 100 N. Y., 53; Aetna Bank v. Fourth Nat. Bank, 46 id., 86; Corn Exchange Bank v. Nassau Bank, 91 id., 80 ; Phoenix Bank v. Risley, 111 U. S., 125 ; Bank of British North America v. Merchants' Nat. Bank, 91 N. Y., 106 ; Marine Bank v. Fulton Bank, 2 Wallace, 256; First Nat. Banky. Whitman 94 U. S., 347; Citizens' Nat. Bank v. Importers & Traders' Bank, 119 N. Y., 195; 29 N. Y. State Rep., 1.

The statement of the account made by the defendant to the plaintiffs, from time to time, the balancing of the bank pass book and the return of the same to the plaintiffs with the vouchers, including, as they did, the checks in controversy, with the forged endorsements thereon, constitute no obstacle to the maintenance of this action by the plaintiffs, as they were ignorant of the facts and circumstances under which the checks were issued and put in circulation. An account thus stated can always be opened upon proof of mistake or fraud ; and the only effect of the plaintiffs’ silence as to the correctness of the account rendered by the defendant is to put upon 'them, in this action, the burden of showing that the account, as stated, was the result of fraud or mistake, a burden which they have fully assumed and met, as the referee has found.

It is urged that the plaintiffs owed the duty to the defendant of examining the vouchers returned to them with the balanced pass book, from time to time, and that a careful examination of the same would have disclosed the fact that the money was received upon the checks by Bedell, and his forgeries thus detected. The duty of examining the returned vouchers was delegated by the plaintiffs to their cashier and bookkeeper, who was a faithful and competent person for many years in plaintiffs’ employ. The referee found as a fact from all the circumstances of the case that the failure to discover the forgeries sooner than they were was not, in any case, caused by any neglect on the part of the plaintiffs, or their cashier, of any duty that the plaintiffs owed to the defendant. The examination of the checks would, of course, enable the plaintiffs to ascertain whether their own signature was genuine and whether the amount, date or name of the payee had been changed, but would not necessarily enable them to detect the forgery of the payee’s name.

The law imposed no duty upon the plaintiffs to do more than they did to ascertain whether the endorsements on the checks were genuine. The defendant’s contract was to pay the checks only upon a genuine endorsement. The drawer is not presumed to know and in fact seldom does know the signature of the payee. The bank must, at its own peril, determine that question. It has the opportunity, by requiring identification when the check is presented, or a responsible guaranty from the party presenting it, of ascertaining whether the endorsement is genuine or not. When it returns the. check to the depositor, as evidence of a payment made by his direction, the latter has the right to assume that the bank has ascertained the fact to be that the endorsement is genuine. Weisser v. Denison, 10 N. Y., 68; Welsh v. German American Bank, 73 id., 424: Frank v. Chemical Bank, 84 id., 209; First Nat. Bank v. Whitman, 94 U. S., 347; Leather Mfg. Bank v. Morgan, 117 id., 107. The plaintiffs committed the examination of the vouchers when returned from the bank to a faithful and competent cashier who failed to discover the forged endorsements. There is not the slightest reason to believe that if the checks had been examined by one of the plaintiffs themselves the result would have been any different. We are unable to see that anything was done or omitted by the plaintiffs with respect to the examination of the endorsements upon the vouchers that excuses the defendant from its obligation to pay only upon a genuine order. Nor can we perceive anything done or omitted by the plaintiffs in the general conduct and management of their business or in the employment of and confidence reposed in Bedell that estops them from alleging that the twenty-seven checks were paid without their authority.

Whether the plaintiffs were guilty of any negligence in that regard was a question of fact and the finding is that they were, in so far as the defendant was concerned, reasonably prudent and careful and that the payment of the- checks was not caused by any negligence on their part, and we do not think it can be said that this finding is without evidence.

Moreover, it is found that the defendant paid the twenty-seven checks m each case without any inquiry as to the genuineness of the endorsements, and in reliance upon the responsibility of the persons presenting the same for payment, and not in reliance upon anything done or forborne by the plaintiffs, except the fact that the checks had been drawn by them; and, further, that all the checks, except- the three paid directly to Bedell, and amounting to less than $2,400, were presented to the defendant by and paid to banks perfectly solvent and liable to respond to the defendant for all moneys paid upon the forged endorsements. These findings, supported as they are by the evidence, dispose of much of the argument upon which it is sought to establish the proposition that the plaintiffs are, by reason of their own acts and omissions, estopped from claiming that the checks were paid by the defendant without their authority. The facts upon which an estoppel must always, be based are found against the defendant. Bedell, in issuing the forged checks and fabricating ‘ the false papers to conceal his crime, did not act as the plaintiffs’ agent, and his acts in this regard are not binding upon them, nor are they in any manner affected by his knowledge of the facts. The questions that arise in this case and are so ably and elaborately discussed in the briefs oE counsel, with respect to the examination of the returned checks and pass book, the manner in which the plaintiffs’ business was conducted a.nd the degree of care and supervision that was exercised over their subordinates, how far the plaintiffs are bound by the criminal acts and knowledge of their clerk, as well as the general rule of estoppel when applied to this class of cases, are not new. They have been frequently and fully discussed in the numerous cases in this court, involving the rights and duties of banks and depositors, and it would extend this opinion beyond reasonable limits and serve no useful purpose to go over the ground again. Frank v. Chemical Bank, swpra; Welsh v. German American Bank, supra ; Weisser v. Denison, supra; People v. Bank of N. A., 75 N. Y., 547; Leather Mfg. Bank v. Morgan, supra; Mayor, etc. Bank of England. 21 Q. B. D., 160.

It is enough to state our general conclusion that, with respect to all these points, the defendant has failed to establish any defense to the action,

It is claimed by the defendant that the sixteen cheeks made payable to 'the order of persons having no existence were, in legal effect, payable to bearer. It is provided by statute that paper made payable to the order of a fictitious person and negotiated by the maker has the same validity “ as against the maker and all persons having knowledge of the facts, as if payable to bearer. ” 1 R. S., 768, § 5.

We are of the opinion, upon examination of the authorities cited by counsel on both sides, that this rule applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker's intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person. Irving National Bank v. Alley, 79 N. Y., 536 ; Turnbull v. Bowyer, 40 id., 456 ; Vagliano v. Bank of England, 22 Q. B. D., 103 ; S. C. on app., 23 id., 243 ; Armstrong v. Pomeroy National Bank, Sup. Ct. Ohio, Oct., 1889; 7 Railway and Corporation Law Journal, 114; Gibson v. Minet, 1 H. Black., 569.

The findings of the referee that the plaintiffs in good faith believed that the names of the payees represented real persons, entitled to receive from them the amount of the check in each case, having been led to believe this by the fraudulent contrivances of Bedell, and that they intended that Bedell should deliver the check to a real payee therein named and that they did not intend that they should go into circulation or be paid by defendant otherwise than through a delivery to and endorsement by the payee named; and that plaintiffs gave no authority to Bedell to endorse the name of the payee, or to put the checks into circulation, and that no one in fact relied on any appearance of authority, derived from the plaintiffs, in Bedell to endorse the payee’s name upon the checks or to put them in circulation, disposes of this question. The endorsement of the names of the fictitious payees upon the checks, with intent to deceive and to put the checks in circulation, constituted the crime of forgery by means of which, and without any fault of the plaintiffs, payment was obtained thereon. The defendant does not. occupy any different position with reference to the checks payable to fictitious payees than it does with reference to those payable to real parties whose endorsements were forged.

Bedell, of course, knew that the payees were fictitious, but he was not acting within the scope of his employment, but in carrying out a scheme of fraud upon the plaintiffs, and under such circumstances his knowledge cannot be imputed to his principals. Frank v. The Ohemical Bank, supra; Weisser v. Denison, supra; Welsh v. German American Bank, supra; Cave v. Cave, 15 Ch. Div., 643-4.

The case presents another and peculiar question. It seems that ten of the eleven checks which were made payable to the order of real persons were made good by Bedell to the several payees, and the defendant has set up these facts in its answer as a partial equitable defense. The referee -made no finding on the subject, but Bedell so testified and was not contradicted, and the question arises upon a request by the defendant to find in substance that the amount of these ten checks having been made good by Bedell to the several payees, the plaintiffs having sustained no loss by reason of the payment thereof, are not entitled to recover in this action against the defendant any sum on account of or by reason of the payment by defendant of the same. The request was refused and the defendant excepted. Keeping in view the theory of this action and regarding the evidence before the referee, we cannot perceive that there was any error in refusing the request.

Bedell testified, in substance, that at the time of the commencement of the action the plaintiffs were liable to clients to the extent of $264,000 on account of his frauds. There were $200,000 in fabricated mortgages which had been delivered by Bedell to clients on account of an equal sum of money paid by the clients to plaintiffs for investment and which Bedell had converted to liis own use. The $64,000 was obtained through other frauds upon clients, which the plaintiffs were liable to be called upon to make good. One of the plaintiffs testified that his firm had actually paid to clients on account of Bedell’s frauds over $242,000. It was not shown by what funds or in what manner Bedell made good to the payees the amount of the checks intended for them. None of the money paid by him was traced to the defendant. The plaintiffs’ action was not upon the checks nor for damages by reason of their payment, but on defendant’s implied promise to pay the money deposited to the plaintiffs or upon their order. The plaintiffs’ case was made out, without the checks at all, except so far as they were necessary as proof to open the account stated.

In substance the referee was asked to hold that by reason of the payment by Bedell of the amount of the checks to the persons named therein, without any reference to the source from which the money came, they were to be charged to the plaintiffs the same as if paid by their authority. The proof given did not justify this conclusion. As it was not shown that such payment was made at the expense or to the injury of the defendant or that the plaintiffs profited by it, the cause of action stated in the complaint was not affected by the fact. It is, no doubt, true that indemnity to the payees of checks diverted as these were, made by the wrongdoer, might, under certain circumstances, constitute a basis for equitable relief in an action of this kind, but the proof did not go far enough to warrant it in this case.

The very recent case of Vagliano v. The Bank of England, occupied such a prominent place in the discussions of the questions involved in this appeal by the courts below, and it is now so earnestly pressed upon our attention by the learned counsel for the defendant as a controlling authority in support of his views, that we consider it necessary to refer to it and point out, so far as we can, the rule or principle which it decides. In the magnitude of the sum involved, the boldness and ingenuity with which a clerk perpetrated a stupendous fraud upon his employer, and in many other respects, that case, doubtless, bears a very strong resemblance to this. The question there was whether the defendant was entitled to debit the plaintiff, one of its depositors, with forty-three forged bills of exchange amounting in the aggregate to £71,500, which it had paid, upon genuine acceptance by the plaintiff, but procured by fraud under substantially the following circumstances. Yagliano, the plaintiff, was a merchant and foreign banker in London with correspondents in various, parts of the world and transacting an enormous business with the defendant, his general banker. He employed in his office a considerable number of clerks and among them one Glyka, who had charge of the foreign correspondence. One Yucina, a merchant and banker at Odessa, was and for thirty years had been one of Yagliano’s correspondents, transacting with him a large business and having practically unlimited credit.

For many years he had drawn drafts for large amounts, when necessary, upon the plaintiff payable sometimes to his own order, but more frequently to the order of a payee named therein. The course of business in the office was well known to Glyka, who procured specimens of Yucina’s letters of advice, which always preceded the drafts, and specimens of the drafts themselves. Having done so he had paper prepared identical in general appearance and texture with that upon which Yucina’s genuine letters and bills were written. This enabled him to forge letters of advice and drafts with Yucina’s name as drawer, which he executed with extradinary skill, and in each case he wrote upon the face of the bill, as payees, the name of Petrida & Co., a firm who carried on business at Constantinople and had business relations with Yucina but had no connection whatever with the fabricated drafts. Glyka caused these forged letters of advice and drafts to be laid before Yagliano, his principal, who being deceived by the skillful manner in which the papers were prepared and the confidence he reposed in his clerks, wrote a genuine acceptance on the face of each bill, as it was put before him from time to time, during a period of some four months, payable in every case at the Bank of England. These fabricated bills, having been thus accepted, were placed with the other and genuine bills in a box in the office to be delivered according to the usual course of business to the proper party when called for. Glyka stole the bills from the box, forged the endorsement of. the payees thereon, presented them at the counter of the bank and received the money thereon. By the English bills of exchange act of 1882 (45 & 46 Yict., Ch. 61, § 7, sub. 3), it was enacted with reference to bills of exchange, that “ where the payee is a fictitious or non-existing person the bill may be treated as payable to bearer.” The bank defended, upon two grounds, first, that they were protected by this statute, and, secondly, that the plaintiff was guilty of such negligence as precluded him from claiming that the payments upon these bills were without authority. On the trial of the action., before ¡Mr. Justice Charles, the plaintiff recovered. L. R., 22 Q. B. D., 103. On appeal the judgment was affirmed, the master of the rolls alone dissenting, on the ground that the bank was protected by the bills of exchange act. L. R,. 23 Q. B. D., 243. Thus far the views of the court, on both hearings, were in harmony with the contention of the plaintiffs in the case at bar, both as to the construction of the statute and the facts bearing on the question of negligence.

The judgment, however, has recently been reversed by the house of lords and we have been furnished with copies of the opinions given upon the final decision of the appeal, and have given to them the careful consideration which the high authority of the tribunal from which they emanate and the importance of the case seems • to demand. The main point upon which the case turned in the review by the house of lords, as we understand the opinions, was the construction to be given to the bills of exchange act. It was held, contrary to the opinions below, that whenever the name inserted as payee is without any intention that payment shall only be made in conformity therewith, the payee then becomes a fictitious person within the meaning of the act, and, therefore, the forty-three bills were within the statute though Petrida & Go. were in fact existing and real persons. When this conclusion was reached the plaintiff’s case necessarily failed, as it was but another way of stating that the bank paid the fabricated bills according to their legal tenor and effect and according to the plaintiff’s directions, that is, to bearer. It- is hardly necessary to add that if we could follow that case in giving construction to our statute the same result would follow in this case. But it is quite obvious that we cannot. The language is different. Our statute is a codification of the common law, while the English statute is, and was intended to be, a departure from it. In so far as the opinions deal with the facts of the case, upon the question of negligence, it is difficult to deduce from them any abstract rule or principle. Moreover there is, as it seems to us, a material difference, in some respects, between the facts of that case and the one at bar. Yagliano, through the contrivances of his clerk, had put before him a fabricated bill, the spurious character of which he failed to detect, and he fixed to it a genuine acceptance, thereby accrediting it to the bank asa genuine instrument. He left the bill, thus accepted, in a place where the dishonest clerk could easily purloin it. The manner in which the business 'was conducted was such as to enable the clerk to possess himself of the means whereby the fraud was successfully carried out without check or detection.

The view of the case taken in the opinions delivered in the House of Lords, aside from the question of the construction of the statute, may very well be attributed to a different shading in the facts and to the further consideration, which can be inferred from the record, that that tribunal is not confined, as we are, to a review of the courts below upon questions of law only. For these reasons the Vagliano case cannot be regarded as authority adverse to the conclusion at which we have arrived in this. We have examined the other exceptions appearing in the record to which our attention has been directed, and we are of the opinion that none of them can be sustained. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur; Gray, J., in result