author: Brown, P. J.

text:
    The People ex rel. Theodore A. Drake, Resp’t, v. John R. Sutton et al., as Board of Audit, etc., App’lts. The People ex rel. Daniel O’Reilly, Resp’t, v. Same, App’lts. The People ex rel. Frederick A. Davis, Resp’t, v. Same App’lts. The People ex rel. William A. Brown, Resp’t, v. Same, Appl’ts.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    ' 1. Orvrt, Service law — Mandamus.
    In proceedings to compel the reinstatement of a clerk under the civil service law, apposing affidavits, which merely'State that the affiant was 'informed that the rector wa,s upt within the .privppge o.f the statute, are insufficient.
    2. Same — Exception.
    Ip order to fafi withip the exception of the, statute, the relations between the clerk and the appointing officer'must be of a personal nature.
    3. Same.

      Mandamus lies to compel the reinstatement of a clerk who was wrongfully removed".
    Appeal from final orders, directing that peremptory writs issue.

      Thos. F. Magner, for app’lts; Chas. J. Patterson, for resp’ts.
   Brown, P. J.

—The relators are gR veteran volunteer firemen of the city .of Brooklyn, and prior to January 31, 1895, were clerks in thq bp^rd of audit of that, city, and on that, -flay were discharged.

By chapter 577, Laws 1892, veteran volunteer-firemen* holding positions by appointment in any city of this state* ¡and ¡receiving asglary from such city., cannot be removed from their positions except for cause after .a hearing had, unless they hold their positions for a.definite term, or filled the. position of private secretary, chief clerk, or deputy to the official or -department, or held confidential relations to the. appointing officer. The appellants claimed that the. relator Brown was a chief clerk to the board of audit, and therefore not with in the protection of the act in question. This claim is not-sustgined by the papers before ns. The affidavit of the comptroller is that the said relator was secretary to the board of audit. We are not referred to any. provision of the charter creating such an office. The resolution of the board under which the relator was discharged, and the. notice delivered to him of Ms discharge, designated Mm as an “account clerk;" and there are no facts set forth in relation to his duties showing him to have-been other than a clerk. If he acted as secretary of the board of audit that fapt did not make him a chief clerk .or deputy in the .department. In Davis’ case there was an affidavit by th,e comptroller that he had beep .informed that the .relator was .np.t, .a veteran fireman. ISTo issue of fact was raised by this affidavit. The relator’s-certificate of discharge was set forth in the moving affidavits and there was no denial of its validity. In all other respect the several cases are alike, and may be considered together.

We are of the opinion that the relators bore no confidential relations to the board of audit or any member thereof. There services were wholly of a public character, -and they bore no personal relations to any member of the board. In order to fall within the exception of the statute, the relations between the clerk and the appointing officer must be of a personal nature. The performance-of official duties are not confidential to the head of the department. In these cases the duties performed by the relators are enumerated in the petitions, and not denied in the answering affidavits, and the question whether they were, in charter, official or confidential was one for the court to determine.

We are also of the opinion that -the relators were clerks, and not incumbents in a public office, and that mandamus was the proper proceeding to restore them to their positions. The rule that courts will not, at the instance of a person out of -possession of an office, try the .title thereto by mandamus, but will leave the party to his remedy by writ of quo warranta, has reference to public officers created by law, and is not applicable to clerks or employes unlawfully removed from their positions by superior authority. The case of People ex rel. Wren v. Goelting, 133 N. Y. 569; 44 St. Rep. 503, cited by the appellant, involved the title fio the office of clerk of a police court, an office which was created and existed by force of a statute of this state, and such are all the cases to which my attention has been directed, and in which the rule was applied.' But it is very plain that quo warranta would not lie to try the right to a clerkship in the public service. Such-positions dp not exist solely by forpe of law, hqt by the will and discretion of the appointing officer.

Title 3, section 2, of-the charter of the city of Brooklyn confers upon the heads of the departments power to appoint and remove clerks and their assistants and other subordinates, and to fix their salaries. While the incumbents of such positions perform duties of a public character, they do not hold a public office as that term is used in the case referred to. It follows from these views that the relatoras cases fell within the provisions of chapter 577, Laws 1892, and as they were not appointed for a definite time, their discharge without a hearing and for np-assigned caused was illegal. They have a clear legal right to be restored to their position.

Mandamus is the only remedy adequate to remedy the wrong done them, and the order must be affirmed, with costs.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Joseph A. Barr, Resp’t, v. Henry L. Fith et al., App’lts.

      (Supreme Court, General Term, Fifth, Department,

      Filed June 21, 1895.)

    Appeal — Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    The purpose of the action was to recover the amount of rents which it is alleged the defendants, as agents of the plaintiff and his partner, Nathaniel L. Barr, received from a tenant of certain premises known as the “ Grand Avenue House and Lot,” in the city of Rochester. The defendants, by their answer, allege that during the time such rents accrued they were in possession of the premises, under a contract of purchase from the Messrs. Barr. On the trial it appeared that a contract in writing had been made between those parties, of which the following is a copy:
    “ A contract and agreement made and entered into between J. A. & N. L. Barr, of Rochester, N. Y., on the first part, and H. L. Fish and Son, of the second part, to wit: That farm of ten acres on the Lyell road, of one John Show, now under foreclosure sale, and about to come into the hands of said Fish & Son, in which •event said Barr Bros, agree to trade house and lot known as ‘123 Grand Avenue; ’ all taxes and other expenses paid to date, except a mortgage of $2,500, interest being paid to date; said mortgage held by M. L. Ins. Go. of New York, — and take farm subject to $3,171.43 mortgage held by Loan Association of Rochester, N. Y.; this amount being more or less, but not to exceed $3,800. Fish and Son to take Grand avenue house subject to said $2,500 mortgage.
    “ Rochester, August 15, 1895.
    “ J. A. & N. L. Barr.
    “Henry L. Fish & Son.”
    The Lyell road property was sold in the mortgage foreclosure on the same day, and after that contract was made. It was bid off by the Barrs, and referee’s deed made to them. p?

      Frederick A. Mann, for app’lt; John A. C. Wright, for resp’t.
   Bradley, J.

— The main question is whether or not, when the rent in question accrued, the defendants had the possession of the Grand avenue property; and that, for the purposes of this review, is dependent upon the question whether or not the defendants then had a right to the possession, under their contract with the Barrs. This is so because, independent of that fact, the finding of the jury upon the evidence is deemed conclusive. Less than two months before the contract was made, the defendants became agents of the Barrs to rent the Grand avenue premises. Thereafter, and after the sale on the mortgage foreclosure of the Lyell road property, bid off by the Barrs, and referee’s deed taken by them, the defendants rented the Grand avenue house and lot to a tenant from whom was derived the rent fund in question. No written lease was made, nor did the defendants apparently assume to represent the Barrs in renting to such tenant. If, therefore, the defendants had the right to the possession of that house and lot, by virtue of the contract before mentioned, it may be here assumed that they took the possession through the tenant who went into occupation, as he may, in that case, be deemed to have held under them. It is otherwise if they had no such right Then the defendants would not be treated as having a relation to the premises hostile to that of the Barrs, in whose behalf they had accepted the relation of agency. There are no exceptions requiring consideration.

It is insisted on the part of the defendants that the verdict was so against the weight of the evidence as to require the direction of a new trial. The evidence on the part of the defendants is to the effect that by arrangement between them and John Shaw, the owner of the Lyell road property, they undertook to make some disposition of it. The precise nature of the understanding does not appear. They thereupon had some negotiations with the Barrs, which resulted in the contract of August 15, 1893, in which it is stated that the land was then “under foreclosure sale, and about to come into the hands” of the defendants, “in which event the said Barr Bros, agree to trade" the Grand avenue house and lot, as there stated. It was then contemplated between the parties to the contract that the defendants would take the title to the Lyell property on the foreclosure sale to be made that day. The sale was made and the property bid off by Shaw, pursuant to an understanding between him and the defendants. The required ten per cent, was not paid. The sale was held open until two p. M. In the meantime one of the defendants and Shaw, being so advised by the lawyer having charge of the foreclosure proceedings, and concluding that it would be a shorter way to the result to have the Barrs bid off the property, called upon the plaintiff, and informed him that the sale was held open until two p. M.; and it may be assumed that they suggested to him that he bid in the property. He did so. The Barrs decline to convey the Grand avenue property to the defendants because the event which was to render the contract available to them, to wit, that the Lyell road property should come into their hands, did not occur. It is quite evident that the defendant, when he made the suggestion to Barr to bid off the property, had in view the conveyance of the Grand avenue lot to the defendants pursuant to the contract. He testified that he was advised by the lawyer that it would simplify matters to have the referee’s deed made directly to the Barrs; that he so informed the plaintiff, who promised to accede to that view, and thereupon he was present, and bid off the property. This is corroborated by the testimony of Shaw. And there is evidence on the part of the defendants tending to prove that the Barrs, after the purchase, promised to carry out the arrangement by conveying the Grand avenue lot to the defendants, and directed the preparation of a deed, which was drawn accordingly, but never was executed. The plaintiff, by his evidence, tends to give a different phase to the transaction, and which is to the effect that he did not bid off the property and take the referee’s •deed in pursuance or in consmmation of the contract with the defendants, but independent of it; that he wanted the property, and as shaw was unable to complete his purchase by payment of the requisite percentage, a resale was had, at which he made the purchase, the payment, and took the deed; and that he did not then or thereafter promise to convey the Grand avenue property under the contract, nor did he direct the preparation of a deed for that purpose, or in any manner recognize any right of the defendants to a conveyance of it. While it is true that the Barrs did not interfere with the right of the defendants to become the purchasers of the Shaw property, and by that means put themselves in a position to require the performance of the contract, the supposition is quite reasonable that the plaintiff was, by the defendants, given the opportunity to become the purchaser, with a view, in that direct manner, to have the title taken by the Barrs, in performance of the contract on the part of the defendants; and the weight -of the evidence, as represented by the record, is apparently in that direction. Nevertheless, this was a question of fact, upon the evidence. It was fairly submitted to the jury, and in such0 manner that no further direction was requested by the defendants. There may have been an advantage had by the jury, in seeing and hearing the witness, which is not made fully apparent by the record here ; and the trial judge, after a careful review of the evidence, as appears by his opinion, denied the motion for a new trial. The conclusion is not, therefore, fairly justified, on this review, that the verdict was so against the preponderance of evidence as to require the direction of a new trial. The trial of the issues in this action presented questions of strictly legal rights, and involved the determination of the question whether or not the defendants were in the actual possession of the Grand avenue premises at the time the rent in question accrued. The effect of the verdict was that they were not there in such possession, for the reason, as it must be inferred, that in renting the property they acted in their relation as agents of the Barrs. It is unnecessary hereto inquire what, if any, equitable rights or remedy the defendants may have, arising out of the contract, in view of the circumstances under which Barr obtained the title to the Lyell road property. There was no equitable defense set up for trial in this action. *

The judgment and order should be affirmed.

All concur.


text:
    Henry Van Wagenen, Resp’t, v. Genesee Falls Permanent Savings and Loan Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Loan association — Power of officers.
    Where the secretary of a loan association is not authorized to receive payment of dues, the handing of money to him to pay to the association at a weekly meeting is not payment to the association.
    2. Same — Implied power.
    His power thus to receive money for the association cannot he implied from the fact that he had, on other and previous occasions, received money for members and paid it in at the weekly meetings.

      3. Same— Estoppel.
    The association is not estoppel from denying his authority to receive payment for it from the fact that he gave a pass book to the payer and, on eacn occasion, returned it to him with an entry, as of the date of the regular meeting, of the amount given him to pay the association.
    Appeal from a judgment in favor of plaintiff.

      Edwin McKnight and H. Nelson Peck, for app’lt; Frank M. Goff. for resp’t.
   Bradley, J.

— The defendant, a domestic corporation, was organized in 1887. Its place of business is the city of Rochester, N. Y. The plaintiff alleges that he became a member in June, 1891, by the purchase of twenty-five shares of its stock and payment of his entrance fee; that between that time and June 13, 1892, he paid to the defendant $140 ; and that, having the right to withdraw the money so paid, with dividends, etc., he did so, and demanded payment of such amount, which was refused. The defendant puts in issue all the allegations of the plaintiff other than that of its corporate existence and place of business. The defendant’s articles of association provide that members not having received a loan may withdraw their shares, and thereupon the amount paid thereon shall be refunded as soon as the necessary funds are in the treasury. If the plaintiff was a member, he had the right to withdraw his shares, and demand payment from the defendant of the amount paid in, etc. He gave the requisite notice for withdrawal, and demanded payment. The defendant refused to recognize him as a member of the association, and asserted that he had paid nothing to it. The main question which will be considered here is whether or not he had by payment created any fund in the association.

It is provided by the articles that the association shall hold regular meetings on every Monday evening, and that all payments must be made at the regular weekly meetings. The plaintiff attended no meetings, and personally made no payments at any such meeting. Early in June, 1891, the plaintiff, on the solicitation or advice of George H. Butts, consented to take twenty-five shares, and he then handed to Butts $2.50, to be paid to the defendant as entrance fee into membership; and soon after the then next regular meeting of the association Butts handed to him a pass book, regular in form as such, and thereafter, from time to time, until in June, 1892, the plaintiff handed and sent to Butts sums of money to pay for him to the association, which money, with that first mentioned, amounted to $140. This, with the alleged dividends, constitutes the amount of the fund which the plaintiff- seeks to recover.. It turns out that Butts paid none of the money to the defendant, and this fact was first brought to the attention of the plaintiff when he after-wards had delivered to another person a sum of money to pay to the defendant, and who, having offered to pay it at a meeting, of the association, was advised that the plaintiff was not a member, and that no money had been paid in by or for him. This last-mentioned sum was returned to him. The question, therefore, is whether or not the defendant is chargeable with the money so paid by the plaintiff to Butts. The plaintiff was a conductor on the New York Central & Hudson River Railroad, and resided at Niagara Falls. Butts was an express messenger. They were frequently brought together, and their relations were intimate. Butts became secretary of the defendant in 1887, and continued in that relation to it until in July, 1892. When the pass book was handed to tile plaintiff it contained the entry of the sum of $2.50 as of the date of the previous meeting of the association. The pass book accompanied all the other sums handed to Butts, and when it was returned by him to the plaintiff it had the entry upon it as of date of regular meetings, respectively, of the sums so delivered and sent to him by the plaintiff. The latter knew the methods of the trancaction of the business of the association, and what was required by the articles in that respect, He also knew that Butts was its secretary. He had. in like manner previously transacted business through him, when the-plaintiff was a member of the association, as trustee for his children, which relation was terminated some two years- before. The claim of liability of the defendant is founded mainly on the fact that Butts was such secretary. By reference to the articles of association it is seen that it is the duty of the secretary to keep a correct account of all proceedings of the association, and to enter them in a book kept for the purpose; to keep an accurate account of all moneys paid the association, and enter the same in a book kept for the purpose; to keep a true account between the association and the shareholders, and to give the shareholders at all times any desired information in relation to its financial affairs. There are certain other duties to which it is unnecessary to refer. He is also required to give security for the faithful performance of his duties. These are duties which he owed to the defendant in his official, relation to it. There is also a treasurer, whose duty it is “ to be present and receive all moneys paid to the association, and give his receipt to the secretary for the same, and to pay all orders approved by the board of directors and signed by the president and secretary ; to compare and settle with the secretary quarterly all accounts.” Whatever may be the construction to which that- provision of the articles is entitled, it seems that the practice is such that money is paid to the treasurer, and his receipt to the secretary is not as payment is made by each member, but the entire payments at a meeting are embraced in a single receipt. It is very clear that the handing of money to the person who was secretary to pay to the defendant cannot be treated as a payment to it. He had no authority to represent the association in so receiving it. Nor can any such power be implied from the fact that he had on other and previous occasions received money for members, and paid it in at the weekly meetings. It was the payment there, and that only, which can be deemed recognized by the defendants in behalf of such members in relation to such payments. The payments could-legitimately be made only at the regular meetings. It is unnecessary to inquire whether it may not by estoppel be charged with payment to a depositary authorized by it to receive money elsewhere, to be handed to its treasurer. Ho such question arises in the present case. The agency assumed by Butts to take the money to the defendant was for the plaintiff, who testifies, “ When I gave him this money, I simply told him to take it to the association for me, I suppose.” Such relation was necessarily the consequence of the purpose for which the money was delivered and received by Butts. He failed to execute the commission, and that, is the end of the controversy, unless some other reason is applicable to the fact that the plaintiff had a pass book, upon which the sums so delivered to Butts were entered by him as of such dates as to lead the plaintiff to suppose that the money was paid as represented by it to the association.

It is difficult to see how any equitable estoppel as against the defendant can be predicated on that state of facts. When an agent or owner of a person or corporation acts within the apparent scope of his authority, the principal is estopped from effectually asserting the want of power in the particular case against another, who, in reliance on such authority, has in good faith proceeded upon it, and would suffer injury by the repudiation of the act of the agent or officer. In such case the principal is concluded by the representation of the agent as to any extrinsic fact which rests peculiarly within his knowledge, although false, and which is not ascertainable by reference to the power in relation to the act so done by the agent. Griswold v. Haven, 25 N. Y. 595 ; Railroad Co. v. Schuyler, 34 id. 30; Bank of Batavia v. N. Y., L. E. & W. R. Co., 33 Hun, 589 ; Id., 106 N. Y. 195 ; 8 St. Rep. 209, The party thus dealing with an agent is presumed to have ascertained his power, and that his act corresponds with it. He may then take his representation of the fact dehors the power unknown to him, although misrepresented by the agent, who, by reason of. the falsity of the fact, is denied the right to do the act which he assumes to perform as such agent. For instance, in the Bank of Batavia Case the extrinsic fact peculiarly within the knowledge of the freight agent of the railroad company was whether the property described in the bill of lading issued by him bad been received by the company for transportation. He, by the bill of lading, falsely represented that it had been so received, and on the faith of that representation the bank discounted a draft with the bill of lading annexed as a collateral. In an action by the bank against the railroad company to recover damages resulting to it by reason of the fraud, the company was estopped from making available as a defense the fact that such property had not been received, and that the representation in the bill that it had been was utterly false. The agent there assumed to perform the act for the company. In the present case, Butts, in taking the plaintiff’s money, assumed to act for him, and he failed to perform what he undertook, and what the plaintiff expected he would do. It was not within his power as an officer of the .defendant to receive the money as he did from the plaintiff ; nor did he in that relation to the association put it in his pocket, retain and appropriate it to his own use. The money never went to the defendant, nor was any entry of it made on its books. The fact that the plaintiff had a pass book does not, nor do the entries made upon it, furnish any aid to him as against the association. Those facts, concurrently with the transactions, facilitated the opportunity for deception practiced by Butts upon the plaintiff. The entries made by Butts upon the pass book were merely his representatives that he had paid the money to the defendant for the plaintiff, as he had been requested, and as he had promised to do ; and that has no more potency for the purposes of the questions presented than would his verbal representation that he had paid the money to the treasurer of the defendant have been entitled to. The omission to do it was merely the default of the plaintiff’s trusted and untrusty bearer of his money, and not of the defendant’s secretary in that relation to the association. Then there is a further reason (not essential for the purposes of this case) preclusive of the asserted claim in the fact that the plaintiff parted with nothing upon the faith of any representation in the pass book of payment of his money to the association. The money which produced each entry in the pass book was delivered to Butts before, and not after, the representation thus furnished by it was made.

Out attention is called to Fifth Ave. Bank v. Forty-Second St. & G. St. Ferry R. Co., 137 N. Y. 231; 50 St Rep. 712. That case gives no support to the plaintiff’s claijn. There the person who was the secretary, treasurer, and transfer agent of the company issued a certificate of a number of shares of stock of the company, and to accomplish it he forged the name of the president of the company. It was within the power of the secretary, as transfer agent, to countersign certificates, and he, as such, countersigned the certificate there in question, and affixed the corporate seal. This was the method of authentication, and, in effect, was the representation of the secretary and transfer agent, in the manner he was authorized to make it, that the certificate was duly issued; and for that reason it was held that, as against the plaintiff, which had advanced money on the faith of the certificate, the company was estopped from asserting the fraud of the agent who thus authenticated it. Butts, because he was secretary, had no power, real or apparent, more than any other person had, to charge the defendant as with payment to it by his representation that money delivered to him to pay for another to the association had been paid to it, when such representation was false. In such case it is matter of confidence in the person selected to pay the money. The misfortune of the plaintiff arises from his misplaced confidence in the person who was faithless to him.

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

All concur.


text:
    Flour City National Bank of Rochester, Resp’t, v. Ernest D. Grover et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

      i. Bills and notes — Bona fide purchaser — Burden.
    The holder of a note does not, unless it appears that the payee obtained it by fraud, have the burden of proving that he is a Iona fide purchaser.
    3. Fraud — What is.
    A statement by the seller of an agency that the purchaser would be allowed to act as agent, is a mere promise, and not a fraudulent representation.
    3. Same — Subsequent statement.
    A false statement, made after the transaction, is not ground for avoiding it for fraud.
    4. Evidence — Admissions—Asbnt.
    A statement by the president of a corporation, when not engaged in the performance of official duty, is not binding upon the corporation.
    Appeal from a judgment in favor of the plaintiff.
    This action was brought upon three promissory notes, of date January 20, 1893, made by. the defendant Ernest D. Grover, for $663.04 each, payable to the order of the defendant Albert B. Grover, at the Flour City National Bank, on or before April 24, 1893. They were indorsed by the payee, by the defendant Rose E. Grover, and by the defendant Sarah J. Cushman. The defendants Grover, by their answer, allege that the defendant Cushman, claiming to have the exclusive right to sell Yost’s writing machine in certain counties of the state for the period of two years from November 3,-1892, with the option of two additional years if she should fulfill her contract, entered into an agreement with the defendant Ernest D. Grover to sell him all her rights in such territory, and some machines, attachments, fixtures, and certain other property, at the price of $1,989.12; that the notes were given in performance of the agreement, and that the defendant Cushman then had no such right in those counties, having before then forfeited it, etc.; and that the plaintiff was not a bona fide • holder of the notes. The trial court directed a verdict for the plaintiff.

      Horace L. Bennett, for app’lts ; Joseph S. Hunn, for resp’t.
   Bradley, J.

— Upon the production by the plaintiff of the notes at the trial, the presumption was that the plaintiff became the owner of them by due course, before maturity, and that it was a bona fide holder of the notes, for value. But, if it had appeared that they were obtained by Cushman from Grover by fraud, the burden would have been shifted to the plaintiff to prove that it was a holder of the notes in good faith, and for a valuable consideration. Case v. Banking Ass'n, 4 N. Y. 166; Bank v. Green, 43 id. 298; Vosburgh v. Diefendorf, 119 id. 357; 29 St. Rep. 448. No fraud is alleged in the defendant’s answer, nor did it appear on the trial that the notes were obtained by fraud, on the part of Cushman, from Grover. Mrs. Cushman had with the Yost Writing-Machine Company the agreement as represented. It was exhibited to-Grover at the time of the negotiation, and was delivered to him at the time his agreement with Cushman was made, and he proceeded for a time in performance of the business contemplated. He afterwards called at the office of the company, and, by one of its officers, was there advised that permission for him to proceed under the Cushman contract was refused. If, from the nature of the contract, Cushman had no right to substitute the agency of another for the company, by transfer of the contract, Grover, upon inspection of the contract, was, equally with Cushman, advised of the fact. The allegation in the answer is that Cushman’s right to proceed in performance of the contract was foreited. It may be assumed, for the purpose of the question, that by reason of some default on the part of Cushman the company had the right to put an end to the further performance of it by him. It does not appear that the company had taken any action with that view, or advised Cushman that it was so treated. And although the right to declare it forfeited may have exisied after the transfer to Grover, by reason of some default on the part of Cushman, she was not chargeable with knowledge that the company would avail itself of the power to forfeit it, and may have supposed, from the nonaction of the company in that respect, that it would not, without which her right to proceed in its performance would remain operative, and therefore she was not chargeable with fraud in that respect. But by the existence of such right, and its subsequent exercise by the company, there was a failure of consideration, to that extent, for the notes, available to Grover, as for-breach of the contract, in not receiving what Cushman undertook he should have by means of the transfer to him of the agency of the company. The main inducement to Grover in making the-purchase was in the company’s contract, and his supposed right acquired to proceed under and pursuant to it. At some time after Grover had proceeded under the contract, but how long after-does not appear, be learned that the company had asserted that it had no agency in the territory in question. He testifies that he then called upon Mr. Cushman, who, it seems, conducted the business for-Mrs. Cushman, and told him what he had learned, and that Cushman said “there was some mistake about it; that the company had written him, as he told me before, that the contract could be turned over to me; they would allow it to be turned over to me, and give me the same terms he had.” If it had appeal’d that Cushman had said to Grover, before the agreement with him was perfected, that the company had written him that the contract could be turned over to him, there would, in view of the evidence that no such consent was given, have been some proof to permit the jury to determine that Cushman was chargeable with fraud in obtaining the notes, and therfore the burden of showing that the plaintiff was a boua fide holder of the notes, for value, would be cast upon it. But the evidence fails to-show that such statement was made by Cushman before the transfer and notes were made. And if they had, by the evidence, been permitted to do so, and had found that the notes were obtained by fraud, the question whether the plaintiff was a bona .fide holder, for value, would have been one of fact, for the jury, since the relation of the cashier to the plaintiff was such as to present the question of his credibility for consideration. Joy v. Diefendorf, 130 N. Y. 6; 40 St. Rep. 491. The burden, however, was with the defendants to prove that the notes were fraudulently obtained by Cushman. In an action at law, fraud must be clearly proved. It will not be presumed, nor, on mere probabilities, be assumed. The defendant B. D. Grover, when he made the agreement with Cushman, undoubtedly understood and believed that he would be permitted to proceed under the contract, which was transferred to him. It may be assumed that he was advised by Cushman, and the latter may have supposed that he could and would have the benefit of it And his promise or statement that he would be allowed to go forward with it was not fraudulent, unless he had been advised to the contrary, which does not appear. It was a mere promise or undertaking about a matter executory in character, and not the misrepresentation as to an existing fact.

As nothing appears in the evidence of the transaction between Cushman and Grover to repel the presumption that the plaintiff was a bona fide holder and owner of' the notes, for value, the question arises whether any other reason in the evidence tending to impeach such relation of the plaintiff to them. The defendant B. D. Grover testified that after this action was commenced he called upon Mr. Hathaway, the president of the plaintiff, and in the conversation had, among other things, said to him that Mr. Cushman had told him that the bank did not own the notes, and that Hathaway did not deny the statement It is urged that this want of denial is some evidence of an admission on the part of the plaintiff that it was not the owner of the notes. That rule is applicable against a party to an action, in whose presence and hearing something pertinent to the matters in question is stated, and which it is for his interest to controvert Then the fact that he does not do so is evidence for the consideration of the jury, and they may treat his silence as an implied admission of the fact as stated. Hathaway was not a party to the action. And, although he was president of the plaintiff, his declarations cannot bind the bank, nor are they admissible as evidence against it, unless they are made in regard to, at the time of, and as-part of, a transaction within the scope of his agency. Packet Co. v. Clough, 20 Wall. 528; First Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153; Luby v. Railroad Co., 17 N. Y. 131. It does not appear that Hathaway was then engaged in the performiance of any official duty, of which the conversation referred to was a part. His declarations, therefore, if any had been made, about the title of the bank to the notes, would not have been admissible. It was a mere conversation between Grover and him on the subject of the suit upon the notes, and whether the bank had taken title to them was dependent upon a past transaction, of which Hathaway may or may not have been advised. The cashier testified that he was discount officer of the bank; that the notes passed through his hands as such, and were discounted. " The circumstances of the interview between Grover and Hathaway were not such as to render the failure of the latter to speak on the subject referred to any evidence of an implied admission on the part of the bank that it did not own the notes.

It seems that the hank held some bonds and mortgages as general collateral security for the liabilities of Cushman to it, which liabilities arose mainly upon paper discounted by it. Whether or not the security thus taken was adequate, does not appear. The evidence upon that subject does not deny to the plaintiff the character of tona fide holder, for value, of the notes.

The letter of date January 16, 1893, from Cushman to Mayo, who by it was treated as in some way representing the company, offered in evidence and excluded, could have been of no benefit to the defendants, if it had been received in evidence. The main feature of the letter was that Mrs. Cushman desired to transfer the" business to a person not named in it, to do which consent was requested that such person take the agency. There is nothing in the letter importing that contract had been forfeited, or that Cushman apprehended that it would be; but, on the contrary, it is there treated by Cushman as operative. Without some answer from the company, which there was no offer to prove, the letter had no materiality for any legitimate purpose. There was no error to the prejudice of the defendants in any of the rulings at the trial. The conclusion, upon the evidence, was required that the plaintiff, by transfer before their maturity, became and was the tona fide owner and holder of the notes, for value.

The judgment should therefore be affirmed.

All concur.


text:
    Dennis Callahan, Resp’t, v. William L. Matthews et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Husband and wife — Liability.
    In an action against husband and wife for injuries from an excavation in front of certain premises, her answer, which admits that she owned the premises, but denies that she occupied and had control of them and alleges that her husband occupied and had control of them for the purpose of ending a building thereon for her, will be, in the absence of evidence that he was erecting the building as an independent contractor, construed as an admission that he was acting as her agent.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, and on the ground of newly discovered evidence.

      George E. Milliman, for app’lts ; Henry J. Sullivan, for resp’t.
   Bradley, J.

— On the night of October 4, 1893, the plaintiff, while passing along the west side of Prospect street, in the city of Rochester, fell into a trench excavated across the sidewalk for the purpose of a lateral sewer to the premises and buildings owned by the defendant Kellie P. Matthews, there situated. The night was dark, and on the part of the plaintiff evidence was given tending to prove that there was no barricade there, and no light to guard against the danger to which persons were thus exposed, or to warn them of its existence. There was, however, a conflict in the evidence upon that subject. This question, as well as that of contributory negligence of the plaintiff, and as to the nature and extent of his injury, were, upon the evidence, questions of fact properly submitted to the jury. It is with some force urged on her part that the evidence did not warrant the recovery against the defendant Kellie P. Matthews. The defendants were husband and wife. The latter, by her answer, admitted that she was the owner of the premises and buildings adjacent to the street where the excavation was made, but denied that she occupied and had control of them, and alleged that the defendant William L. Matthews occupied and controlled the premises for the purposes of erecting a building thereon for her. As the only evidence that she owned the premises is in such admission in the answer, it must be taken in connection with the other allegations in the same paragraph, and subject to the qualifications there given to it, for the purposes of the question arising upon the charge of negligence as against her. Gildersleeve v. Landon, 73 N. Y. 609. The work of making the excavation and of the erection of the building on the premises, it may be assumed, was done under the immediate direction of the husband. By what relation to his wife he was doing the work does not appear by evidence of witnesses. But, nothing appearing to the contrary, it might be presumed that in the performance of it he was engaged as her agent in the service. And in view of the fact that the wife owned the property, and as the improvements were of a permanent nature to the freehold, the allegation in her answer that the husband occupied and controlled the premises for the purpose mentioned does not necessarily import that he was not engaged as her agent in performing the work. She alleged that he occupied and controlled the premises for the purpose of erecting a building thereon for her. The important fact is other than that of occupation and control of the premises, and is in what relation to her he was engaged in the performance of the work which produced the dangerous condition. This is not within the expression or fair meaning of the allegations referred, to. And the general rule is that a pleading will not be extended by construction in behalf of the pleader beyond what is the reasonable import of its language. The defendants were at liberty to prove that the work was done by the defendant William L. Matthews as an independent contractor for the other defendant; and such fact, if established, would have constituted a defense for her. Blake v. Ferris, 5 N. Y. 48. But no evidence to that effect was introduced on the defense. And the fact that the defendants were husband and wife does not tend to support the proposition that his relation in the performance of this work on the premises of his wife was other than that of agent or servant. While the burden was with the plaintiff to prove every fact essential to the liability of the defendants, the presumption arising out of the relation of Mrs. Matthews to the premises as owner is available as evidence in support of the action against her. The jury were, by the evidence, permitted to find the verdict against both of the defendants. After a careful examination of the evidence given on the trial, and of the affidavits upon which the motion for a new trial on the ground of newly-discovered evidence was heard, no occasion appears for overruling the conclusion of the trial judge on the motion.

The judgment and order should be affirmed.

All concur.


text:
    Obed M. Rice, App’lt, v. Charles A. Bruff, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Judgment — Collateral attack.
    Where a real estate agent, after suing the owner of land for commissions for a sale thereof and the rendition of a judgment of nonsuit against him for costs, brings an action against the owner’s manager for the commission on the ground that by his agreement he had bound himself therefor, the judgment for costs, which has been assigned to the defendant, cannot be impeached in defendant’s hands on the ground that he had fraudulently induced plaintiff to sue the owner upon the mere statement in a letter that ■ his principal was the owner of the property and that he claimed that he had paid all the commissions which were due.
    Appeal from a judgment entered in favor of plaintiff.
    The plaintiff, by his complaint, alleges that Jacob K. Post was at the time in question the owner of the premises referred to ; that they were managed and controlled by the defendant, who entered into an agreement with the plaintiff to pay him double commissions on his procuring a purchaser for the premises; that the plaintiff did so, and a contract of sale, and afterwards a deed of conveyance by Post, were made with the person so procured by the plaintiff; and that such double commissions amounted to $524.50, for which amount he demanded judgment. The defendant, by his answer, alleged payment of'$264.50 to the plaintiff, and, by way of counterclaim, alleged the recovery of a judgment by Post against the plaintiff, in the Monroe county court, for $234.82, September 20, 1894, and the assignment of it to the defendant. The plaintiff, in reply to the counterclaim, admits the recovery of the judgment, which was for costs in action brought by the plaintiff against Post, and alleged that the plaintiff was induced to bring the action against Post by the representations of the defendant that Post was the owner of the premises, and the real party in interest, for whose benefit such sale had been made, and that the defendant acted as his agent in the matter, and that such representations were false, etc. Verdict was directed for the plaintiff for $58, and, as that did not exceed the amount of an offer of judgment made by the defendant, the latter had the benefit of his costs accruing subsequent to the time of the offer. The plaintiff’s recovery was thereby reduced to $27.53.

      Herbert J. Stull, for app’lt; Marsenus H. Briggs, for resp’t,
   Bradley, J.

— The defendant admitted at the trial that the double commissions amounted to $524.50. By the judgment record in the action of the plaintiff against Post, it appeared: That the plaintiff there, in his complaint, alleged that, pursuant to agreement, he procured the purchaser of the premises then owned by defendant, Post, at the stipulated compensation of double commissions, which amounted to lhat sum, “of which sum the defendant had paid the sum of $264.50, leaving still due and owing to plaintiff the sum of $260, which' the plaintiff has demanded of defendant (Post), and which he has refused to payand he demanded judgment for $260 and interest. That by the answer the defendant, Post, admitted that he was such owner of the premises; denied, upon information and belief, that double commissions amounted to $524.50 ; admitted that he had paid the plaintiff $264.60 thereon, and that he had refused to pay any more; and denied all allegations of the complaint not admitted and denied. That the plaintiff was nonsuited on the trial of that action, and judgment was finally perfected against the plaintiff for $234.82 costs. The judgment was assigned by Post to the defendant. The verdict directed for the plaintiff was produced by deduction from $524.50 and interest of the sums of $264.50 and $234.82. It appears that the plaintiff had occupied the premises as tenant, and that at the time he earned the commissions there was due from him $264.50 for rent. This was treated at the trial as having been applied as a payment upon his claim for such commissions. The defendant testified that in October, 1892, in an interview with the plaintiff, he presented a bill for the rent to the latter, who said he would accept it on account of the commissions, and that in making out his bill the plaintiff allowed the rent on the account, and that afterwards the defendant left with the plaintiff a receipted bill for it. The plaintiff testified that no receipt for the rent was given him by the defendant. He.does not deny, by his evidence, that it was in fact applied upon his claim for commissions; and by the evidence, it quite conclusively appears that it was treated by all the parties as having been so applied. Before the commencement of his action against Post, the plaintiff caused to be written, and sent by his attorney to the defendant, a letter addressed to him, in which the attorney stated that the plaintiff had placed in. his hands, for collection, “claim for commissions on the sale of property, in which he alleges you were interested, amounting to $260, being the amount unpaid on total claim of $524.50.” In his action thereafter brought by the plaintiff against Post, as has been seen, he alleged in his complaint that he had been paid the sum of $264.50 on the claim. This was admitted by the answer of Post, as defendant. In view of all this evidence of payment, — and there is none to the contrary, — it is difficult to see any reasonable ground for escape from the conclusion on the trial that such payment should be treated as having been made and applied upon the plaintiff’s claim. His statement that his willingness to have it so applied was the reason of his so alleging does not seem to qualify the fact which the evidence established. The court was justified in withholding from the jury the question of payment. If it had done otherwise, a verdict to the contrary would have been so against evidence as to require the direction of a new trial.

It is urged on the part of the plaintiff that evidence which was offered to prove that the Post judgment was the result of fraud practiced by the defendant upon the plaintiff was erroneously excluded. This charge is founded upon the letter of the defendant’s attorney in answer to that before mentioned. In that letter, of date 27th January, 1893, reference is made to the plaintiff’s letter of the day previous, and then is added that Mr. Bruff denied having made any arrangement to pay commissions in excess of $260, and that such sum was “paid by offsetting a claim which the owner of the property sold, to wit, Mr. Post, had against Mr. Eice for rent. Mr. Post is the real party for whom the building was sold, and he claims he paid all the commission which was due Mr. Eice, and all which Mr. Bruff agreed should be paid.” It is asserted on the part of the plaintiff that he was induced by the statements in that letter to bring the suit against Post. The plaintiff’s counsel, in pursuing the subject on that basis, asked the defendant, as a witness, the question, “ Is it not a fact that you and Willis owned this building together?” and he asked Posfas a witness the following questions : , _

“Were you at any time during the year 1892 the owner of the building ? Had you at that time anything more than the record title to the building? Were you the real party for whom it was sold ? Did you ever claim any amount due j'ou for rent from Mr. Eice for its occupancy ? Did you retain counsel to defend the action of Mr. Rice against you, or pay anything for the defense of it to anybody? Was there any consideration for the assignment of the judgment to Bruff? Did you know who were the owners of the building?”

Objection following each of these questions was sustained, the evidence excluded, and exception taken.

While the business management"of the property was conducted by the defendant, the legal title appears to have been in Post. The plaintiff, not only in his complaint in the action against Post, but in that in the present action, alleged that Mr. Post was the owner of the property. If the purpose was to prove that Bruff was beneficially interested in the title to the property, it could not be proved by oral evidence. Nor was it important to prove whether or not Post personally claimed any amount of rent due him from the plaintiff. If, however, there was any basis to support the charge, as against Bruff, that the judgment was obtained by fraud, and therefore ineffectual, it would have been proper to prove that the action against Post was in fact defended by Bruff. But it is not seen how what did appear, together with that which the plaintiff sought to prove, would tend to render the Post judgment invalid on that ground. It is the general rule that a judgment obtained by fraud may be for that reason attacked collaterally, as well as directly, and, if it appears to have been so procured, will be treated as a nullity. The fraud which supports such relief is deemed to have been perpetrated upon the court, as well as upon the party defrauded or injured by its recovery. Dobson v. Pearce, 12 N. Y. 156 ; Mandeville v. Reynolds. 68 id. 528; Verplack v. Van Buren, 76 id. 247; Ward v. Town of Southfield, 102 id. 287. But, as said in Ross v.1 Wood, 70 N. Y. 8, the-fraud must be actual and positive. “It must be that which occurs in the very concoction or procuring of the judgment or decree, and something not knoyn to the opposite party at the time, and for not knowing which he is not chargeable with negligence,” It does not appear, nor did the plaintiff offer to prove, on what ground, or for what reason, he was nonsuited on the trial of his action against Post. It must be assumed that, as to Post, the judgment was duly recovered. The reason why this action was not barred by the Post judgment appears in the fact, of record, that it was not determined on the merits, but by nonsuit And he comes into court in the present,action alleging by his complaint that, during the time when the rent accrued, Post owned the premises, but that they were controlled and managed by the defendant, and that he promised, in his own name and behalf, to pay the plaintiff the double commissions, etc. The allegations upon which the plaintiff sought to recover in this action are not inconsistent with the statements of the defendant in his letter referred to. While he stated that Post owned the property he may not have disclosed that fact when he made the arrangment with the plaintiff to procure a purchaser, and therefore he may have made himself personally liable. This the plaintiff knew when he brought his first action. So far as appears, therefore, no fraudulent inducement to sue Post could arise out of the statements in the letter. Then the defendant did not, by anything in such letter, advise or request the plaintiff to bring suit against Pos't, nor did he there assert that he (defendant) did not, by the agreement, become personally liable to pay whatever the plaintiff was entitled to recover by virtue of it. It follows that, in any view presented at the trial, there was nothing in the letter written for the defendant upon which the imputation of fraud could rest, for the purpose of impeaching the judgment as invalid in the hands of the defendant, as assignee of it.

The judgment should be affirmed.

All concur.


author: Lewis, J.

text:
    In the Matter of the Probate of the Will of Eliza A. Fish, deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Will — Attestation after testator’s death.
    Where one of the subscribing witnesses signs after the death of the testator, it is not sufficient attestation, though the testator had requested the witness to sign.
    Appeal from a decree, adjudging that the instrument offered for probate was-not executed as required by statute, and refusing probate thereof, and also from an order denying a motion to open and vacate said decree.

      Hannibal Smith, for app’lt; P. Chamberlain, for resp’t.
   Lewis, J.

— The instrument presented as the will of Mrs Fish was prepared as directed by her. It was presented to her for exeeution just previous to her death. She was aware of its contents. She was exceedingly feeble, and not able even to subscribe her name to the will without help. By the assistance of Drs. Morris and Williams, two physicians who were in attendance upon her, she was raised in bed to a partially reclining position, and Dr. Morris guided her hand, and a mark was made as and for her signature to the instrument. Dr. Morris subscribed his name to the paper as a witness, in the presence of the deceased, and then requested Dr. Williams to subscribe his name. Dr. Williams was at the time standing by Mrs. Fish. She had, in consequence of the exertion made in subscribing the will, become very much exhausted. She remarked, “ I am dying; I feel so weak,” and died before Dr. Williams had affixed his name to the document. It is quite doubtful if Mrs. Fish was at all conscious of what was occurring at the time Dr. Morris signed his name. Dr. Williams, soon after Mrs. Fish died, at the suggestion of Dr. Morris, subscribed his name to the instrument as a witness.

We assume, in deciding this appeal, that all the requirements of the statute for the due execution of the instrument as a will were complied with, with the exception of the omission of Dr. Williams to become a subscribing witness during the lifetime of Mrs. Fish. The proof, however, that Mrs. Fish ever requested Drs. Morris and Williams to become subscribing witnesses is somewhat unsatisfactory. We do not think it necessary to rehearse the evidence bearing upon that question, for we consider the fact that there was but one subscribing witness when Mrs. Fish died to be fatal to the validity of the instrument as a will. The statute requires that a will shall have at least two witnesses, and they must, we think, become such during the lifetime of the testator. If the act of subscribing by the witnesses can be performed immediately after the death of the principal, and the instrument be valid, it may be done in a month or a year thereafter with the same effect. A will takes effect at the instant the testator dies. If the contention of the appellant should prevail, the anomaly might be presented of the disposition of an estate being suspended intermediate the death of the testator and the time the witness or witnesses shall perform the act of subscribing their names to the instrument. The final disposition of the estate would thereby be made to depend, not solely upon the intention of the testator, but upon the will or caprice of one who had been requested to perform the very simple act of becoming a witness. The legislature never intended to give to subscribing witnesses such power. Such construction would tend to break down the barriers to frauds which the statute was enacted to prevent.

In construing this statute, it is the intention of the legislature that must be kept in mind, and not that of the testator. Mrs. Fish could at? any time before her death have revoked her request to Dr. Williams to become a subscribing witness to her will. Had she done so, he could not have acted in that capacity. After making such a request, her wish that he should become a subscribing witness would be presumed to have continued until-he performed the act, in the absence of evidence of revocation of his authority. It was incumbent upon those propounding the will for probate to establish, either by affirmative or presumptive evidence, that such desire upon the part of Mrs. Fish existed at the time the witnesses subscribed their names. The undisputed evidence shows that such desire did not exist at the time Dr. Williams subscribed his name, for Mrs. Fish was then dead. A will must be a valid, perfect instrument .at the time of the death of the testator. It takes effect at the instant the testator dies. If invalid then, life cannot be given to it by the act of a third party.

It is not necessary to consider the question raised by the appeal from the order of the surrogate denying the appellant’s motion to open the decree which réfused probate of the will. As the fact that one of the witnesses did not sign the attestation clause until after the death of Mrs. Fish is, we think, fatal to the validity of the instrument as a will, opening the decree would not'in any way benefit the appellant.

The decree and order appealed from should be affirmed, with eosts against the appellant.

All concur.


text:
    William H. Smith, App’lt, v. Abijah Weston, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Trial — Bequest to direct verdict.
    The effect of a request by both parties for the direction of a verdict is to submit the question of fact for the decision and determination of the court without a jury.
    2. Bills and notes — Indorsement by partner.
    The indorsement of a note by a partner for the accommodatien of the maker, and not in the course of the firm business, does not render the co-partner liable, if the holder was aware of the facts at the time he took it.
    3 Same — Accommodation—Notice.
    Taking a note directly from the maker, in renewal of a loan previously made to him, is evidence to the lender that an indorsement thereon is for the maker’s accommodation and without consideration.
    Appeal from a judgment, entered on a verdict directed in favor of defendant.

      Charles S. Cary, for app’lt; J. H. Waring, for resp’t.
   Lewis, J.

— The action was against the defendants as second indorsers upon a promissory note made by George Van Campen & Sons for the sum of $2,000, payable to the order of J. fe. Van Campen, adminstrator, etc. It was indorsed by the payee, who was a member of the firm of makers, and at his request William W. Weston, one of the firm of Weston Bros., indorsed thereon the firm name of Weston Bros. Abijah Weston alone defended. The indorsement of the defendant’s firm name was for the accommodation of the makers, and not in the course of the partnership business, and was made without the knowledge or consent of the respondent, who was at the time a member of said firm of indorsers. The payee, J. K. Van Campen, after obtaining such indorsement upon the note, transferred the same directly to the plaintiff, in renewal of another promissory note, of a like amount, made by the same makers, and indorsed in like manner. There was no substantial conflict in the evidence, and at its close plaintiff’s counsel stated to the court that in his opinion there was no question for the jury, and he asked for a direction of a verdict for the plaintiff. His motion was denied, and thereupon defendant’s counsel requested the court to direct a verdict for the defendant, which the court did, and the plaintiff duly excepted. The effect of this request by both parties for a direction of a verdict was to submit the questions of fact for thedecision and the determination of the court without a jury. Thompson v. Simpson, 128 N.Y. 283; 40 St. Rep. 164. The firm’s name having been indorsed upon the note by William W. Weston, for the accommodation of the makers, and not in the course of the partnership business, Abijah Weston was not liable upon it, if the plaintiff -was aware of the facts at the time he took it. Taking the note directly from the makers, in renewal of a loan previously made to them, was evidence to the plaintiff that the defendant’s indorsement was for the makers accommodation; and without consideration. National Park Bank v. German-American Mutual Warehouse & Security Co., 116 N. Y. 281 — 293; 26 St. Rep. 675.

It is claimed by the appellant that the defendant should be es-topped from the interposing the defense, for the reason that he was aware his brother William W. had, on many prior occasions, used the firm name in like manner. There was evidence tending to show that the defendant, William W., had so indorsed the firm name on prior occasions without the consent of the other partners, and that knowledge thereof had from time to time been communicated to Abijah. Abijah testified that he had known that his brother had thus used the firm name, but that, on every occasion, when the information came to him he remonstrated with his brother for so doing, and threatened to dissolve the firm if the practice was persisted in, and that William on every occasion promised that he would not repeat it, but that he violated his promise, and the defendant finally caused a dissolution of the firm in consequence thereof. It was not shown that the plaintiff knew, at the time he discounted the note, of these former indorsements of the defendant’s firm name by William. e plaintiff failed to make a case entitling him to judgment.

The judgment shoud be affirmed.

Bradley and Ward, JJ., concur, Dwight, P. J. not voting.


text:
    First National Bank of Friendship, N. Y., App’lt, v. Abijah Weston, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Bills and Notes — Accommodation—Notice.
    A bank, upon discounting a note, presented by the first indorser, is not chargeable with notice that the indorsements thereon were for the accommodation of the maker.

      3. Same.
    It is not the duty of a person, about to purchase negotiable paper, to make any inquiries, not required by good faith, as to possible defenses of which he has no notice, either from the face of the paper or facts communicated at the time.
    Appeal from a judgment, dismissing the complaint.

      Chas. S. Cary, for app’lt; John H. Waring, for resp’t,
   Lewis, J.

— This action was brought upon a promissory note dated December 31,1891, made by the firm of George Van Campen & Sons, payable to the order J. K.Van Campen, and indorsed by the payee and by the firm of Weston Bros., as second indorsers. The indorsement of thefirm name of Weston Bros, was made by William W. Weston, one of the members of the firm, solely for the accommodation of the makers, without consideration, and not in the business of the firm of Weston Bids. It was presentéd to the plaintiff for discount by the payee, J. K. Van Campen, in the month of September or October, 1892. It was discounted by the plaintiff’s cashier, and the proceeds thereof were applied in payment of a promissory note falling due” that day, which was one of a series of notes made by the same makers and bearing the same indorsements as the note in suit. The first note of the series was discounted by the plaintiff, and the proceeds thereof were placed to the credit of George Van Campen. Whether he was a member of the firm of makers did not appear from any affirmative evidence on the trial. Abijah Weston alone defended, setting up as his defense that the indorsement of his firm name was made without his consent, and not in the business of his firm ; that it was presented to the plaintiff for discount by the makers, which was alleged to be notice to the plaintiff that his firm was an accommodation indorser.

Many of the facts of this case are similar to those of the case of Smith v. Weston, 68 St. Rep. 513, which was argued at the same time with this case ; but a different question arises here. Both parties requested the direction of a verdict in their favor, respectively, in the Smith Case, thereby submitting the questions of fact for the decision of the court, and the decision was in favor of the defendant. But such was not the case here. The plaintiff, at the close of the evidence, asked to have the questions of fact submitted to the jury. His request was Fefused, and a verdict was directed for the defendant. The plaintiff’s cashier, Minor Well-man, testified that the note in suit was sent by mail to the plainiff bank by the payee, J. K. Van Campen, with a requést that it should be discounted and the proceeds used to take up the note heretofore referred to and which was held by the bank ; that J. K. Van Campen paid the discount; that he did not know that he was one of the makers of the note; neither did he know who composed the firm of makers; that he had no knowledge who composed the firm of makers; that he had no knowledge who J. K. Van Campen represented in this correspondence, and did not know who composed the firm of George Van Campen & Sons ; that he discounted the note on the strength of the indorsement of Weston Bros.; that that firm was the only one he knew anything about. There was evidence in the Smith Case justifying the court in finding that the note was, to the knowledge of the plaintiff, presented for discount oy the makers, and hence presumably had its inception in their hands. . That circumstance was notice to the plaintiff. Smith that the note belonged to the makers, and that the indorsement in the name of Weston Bros, was made for the makers’ accommodation, without consideration. If presented by the first indorser, as in this case, the presumption would be that it had its inception in his hands. It is not the duty of parties about to purchase negotiable paper to make any inquiries not required by good faith, as to the possible defenses of which they have no notice, either from the face of the paper or facts communicated at the time. Daniel, Neg. Inst. § 775. The evidence presented facts which should have been submitted to the jury.

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

All concur.


author: Adams, J.

text:
    Mary Saloma Horndorf et al., Pl’ffs, v. Sarah J. Horndorf et al., Def’ts.

      (Supreme Court, Monroe Special Term,

      Filed February, 1895.)

      1. Wills — Constkuction.
    A provision in a will that the executors shall invest the estate for the benefit of infant children until the youngest child shall attain the age of twenty-five years, refers to the youngest child living at the time of testator’s death, and does not, therefore, suspend the power of alienation longer than two lives.

      2. Same.
    A will, which directs the executors to invest, for the benefit of the legatees, property absolutely bequeathed to them, does not create a trust, but gives the executors a power In trust.
    3. Same — Indefinite.
    A provision which imposes, as a condition to the reception of the estate by the residuary legatees, that they shall respectively be free from “immoral, disorderly and intemperate conduct and practices,” is too indefinite and uncertain to he capable of qbservance.
    4. Same — Accumulations.
    A provision, which not only contemplates the accumulation of income beyond the period of minority, but also renders possible a condition of affairs at the date of distribution, by which the accumulated fund will pass to others than the infant whose share of the estate produced, it is within the inhibition of the statute relating' to accumulations.
    Appeal from a judgment in favor of plaintiff.

      Horace G. Pierce, for pl’ffs; Emil Ludekins, for def’t administrators ; Howard H. Widener, for other def’ts.
   Adams, J.

— There are two points of view from which the questions raised by the pleadings may be profitably considered, one of which is that which construes the will of the testator upon the theory of the creation of an express trust in the administrators to be appointed thereunder, while the other is one which regards the duties imposed upon such administrators as in the nature of a trust power only. It will be observed that the will contains no language which, in express terms, conveys to the administrators, to be thereafter appointed, any of the estate of the testator; nor is the word “ trustee ’’ to be found anywhere therein, nevertheless the administrators are invested by the testator with certain powers, and with such absolute control and management of his estate as would, I think, if it were necessary to give it that construction, and if such a construction were in harmony with the entire instrument, justify the conclusion that it was the intention of the testator to create a trust, and to vest in his administrators title to the trust estate. Tobias v. Ketchum, 32 N. Y. 319; Ward v. Ward, 105 id. 68 ; 6 St. Rep. 798. This conclusion being reached, another necessarily follows, which is that, by the provisions of the will, the trust estate resolves itself into personalty ; consequently, the case is one which does not require the intervention of a court of equity, and, therefore, the demurrer might be sustained upon that ground. Underwood v. Curtis, 127 N. Y. 523 ; 40 St. Rep. 255. However, the questions raised are not only interesting, but they are of such a nature as to render it entirely proper that, in the exercise of its discretionary power, this court should retain the case for their determination.

Assuming, therefore, that a trust is created by the will of William Horndorf, the first question to be considered is whether or not the execution of the trust in the manner contemplated by the testator involves a suspension of the power of alienation, which is repugnant to the statute. The determination of this question depends, I think, upon the construction which must be given to the language of certain subdivisions of the fourth clause of the will. This, the residuary clause, devises and bequeathes to these plaintiffs all the testator’s estate not heretofore disposed of, subject to certain restrictions, powers and reservations. The “restrictions, powers, and reservations” referred to are those which require the administrators with the will annexed to convert the entire estate into money, to invest the same in bonds and mortgages, and, after satisfying the widow’s dower interest, to keep such moneys invested for the benefit of these plaintiffs, all of whom are minors, until the testator’s youngest surviving child shall attain the age of twenty-five years, when the entire estate is to be distributed in the manner hereináfter provided. How, inasmuch as the testator died leaving three minor cnildren, the effort to give to this language a construction which will not unlawfully suspend the absolute ownership of the property affected thereby, seems involved in some difficulty ; for, if the time for distribution is to be determined by the attainment of the age of twenty-five years by the youngest of these children who may live to reach that age, there is much force in the contention of the plaintiff’s counsel that it becomes possible for the absolute ownership to be suspended during a minority, and four years in addition thereto, beyond two lives in being at the death of the testator, which would, of course, be a contravention of the statute. 1 Rev. St. pt. 2, tit. 4, chap. 4, § 1. But, on the other hand, if the survivorship is regarded as relating to the death of the testator, this difficulty disappears ; for in such a case the limitation would cease and the estate be released when the youngest of the three children shall attain the age specified, with a possibility of it terminating at an earlier period of time in the event of her death prior to her twenty-fifth birthday. Such a construction is correct in principle, and is supported by authority. (In re Mahan, 98 N. Y. 372; Van Cott v. Prentice, 104 id. 45 ; 5 St. Rep. 654; Stokes v. Weston, 142 N. Y. 432; 59 St. Rep. 811),. and it is one quite easy of adoption when reference is had to the language of subdivisions h, i, and j of the residuary clause, for in these the testator has in contemplation the possible death of any or all of his children, and the disposition to be made of the estate in that event, and such disposition is made to depend upon the death of such child or children before his last will and testament shall be carried into effect. As it requires no argument to support such proposition that a will goes into effect immediately upon the death of the testator, in the absence of some express provision to the contrary (Wetmore v. Parker, 52 N. Y. 450; Brundage v. Brundage, 60 id. 544), it is quite obvious that in providing for his children the testator had constantly in mind the conditions which would exist at the time of his death, and not such as might depend upon subsequent events. But whether or not the construction thus far outlined is one which can be upheld, there is another, and, to my mind, a much more satisfactory one, which is to be obtained by discarding the theory that the will in question creates either an express or an implied trust. It will be noticed that in disposing of the residuum of his estate, the testator makes use of this language:

“ I forever give, bequeath, and devise all the rest, residue, and remainder of my property, real and personal and mixed, and of every name and nature, wheresoever the same may be situate, to my children Mary Saloma Horndorf, Bertha Edith Horndorf, Florence Lorinda Horndorf, and such other child or children as may hereafter be born to me, share and share alike.”

Here, then, is.an absolute bequest of the testator’s estate to his children who shall survive him, which is couched in language as apt and free from ambiguity as can possibly be devised for that purpose; and, were this unaffected by any subsequent conditions, there could, of course, be no question as the vesting of the residuary estate immediately upon the death of the testator. But the language quoted is followed by these words: “ This devise and bequest, is, however, subject to the following restrictions, powers, and reservations,” and then, with certain other provisions, which need-not be specified in this connection, are enumerated the “ restrictions, powers, and reservations” which have already been mentioned in considering the question of the unlawful suspension of the power of alienation. The duty, is therefore, imposed of giving to this language in its entirety, if possible, an interpretation consonant with a legal intent upon the part of the testator; and in attempting this regard must be had for the rule, which seems well established, that a trust estate will never be implied where it will render a will illegal and void (Henderson v. Henderson, 113 N. Y. 1 ; 21 St. Rep. 800; Greene v. Greene, 125 N. Y. 506; 36 St. Rep. 30 ; Hillyer v. Vandewater, 31 St. Rep. 671, opinion, of Gray, J.), and especially is this rule applicable in cases where the duties conferred upon the executor or administrator may be executed under a trust power (Henderson v. Henderson, supra, ; Heermans v. Robertson, 64 N. Y. 332). It] then, instead of giving such effect to the language employed by the testator as will create a trust estate which may possibly conflict with the statute against perpetuities, the direction to the administrators as to the management of his estate is regarded as in the nature of a power in trust only, it will follow that the plaintiffs take a vested estate in all the residuum of the testator’s property, subject, nevertheless, to the power conferred upon the administrators. The law favors the vesting of estates (Stokes v. Weston, supra), and in all cases of doubt will give such construction to the language of a will as accomplishes this" result. It is likewise a canon of construction that in order to uphold the principal disposition of a will the law will disregard, if possible, all “ ulterior contingent limitations which threaten violation of statutory rules respecting the ownership of property.” Henderson v. Henderson, supra. The view, therefore, which impresses me as the correct one to entertain of this case, has its sanction in both principle and authority, and it is one which tends to effectuate, rather than to derange and subvert, the general scheme of the testator. There are, however, certain minor provisions of this will, which are obviously in contravention of • established rules which have long obtained in the law relating to the testamentary disposition of property ; and, while they do not invalidate the instrument itself, they will doubtless have to be disregarded in due administration of the testator’a estate. One of these is that which seems to impose as a condition to the final distribution of the estate and its reception by the residuary legatees, that they shall respectively be free from “ immoral, disorderly, and intemperate conduct and practices.” It is sufficient to say of this provision that it wholly fails to furnish any standard or means by which it can be ascertained, or to designate any person who is to determine, whether this condition.has or has not been fulfilled; and consequently it is too indefinite and uncertain to be capable of observance.

The only remaining provision which demands any attention is that which requires the administrators to create a fund arising from the income of each child’s share of the estate, and to annually reinvest so much thereof as shall not be required for her support and maintenance until the final distribution takes place, which, as .has been shown, will occur when the youngest child reaches the age of twenty-five. This, it is quite clear, is within the inhibition of the statute relating to accumulations, for it not only contemplates the accumulation of income beyond the period of minority, but it also renders possible a condition of affairs at the date of distribution by which the accumulated fund would pass to others than the infant whose share of the estate produced it. It follows, therefore, that this provision is void, 1 Rev. St. p. 774, § 3; Pray v. Hegeman, 92 N. Y. 508; Barbour v. De Forest, 95 id. 13; Radley v, Kuhun, 97 id. 26, and that the plaintiffs are entitled to the whole of the income arising from their respective shares of the residuary fund.

The construction of the will in question in the manner indicated by the views “herein expressed necessarily leads to a judgment in favor of the plaintiffs, overruling the demurrer to their complaint..

Judgment is consequently ordered accordingly, and the question of the allowance of costs to the several parties is reserved until the settlement of the j udgment.


author: Werner, J.

text:
    Anna King, Resp't, v. Masonic Life Association of Western New York, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed, June 21, 1895.)

    1. Insurance — Mutual benefit — Notice of assessment.
    Proof that it was the custom of a mutual benefit company to send notices of assessments and that according to its books, a certain notice had been mailed, does not cast upon the beneficiary the burden of showing that such, notice had not been received.
    8. Same — Waiver.
    Prompt payment of assessments may be waived and the right to treat the contract as forfeited suspended, by a course of dealing between the association and a member, which gives the latter the right to assume that prompt payment will not be strictly enforced.
    3. Appeal — Matters not appearing in record.
    A mere reference to an admission of counsel, contained in instructions of the court, .is not sufficient to enable the appellate court.to determine its effect, where the record does not show precisely what the admission was, but only that the court gave instructions that such admission might be-considered by the jury.
    Appeal from a judgment in favor of plaintiff.

      Daniel H. McMillan, for app’lt; George W. Wheeler, for resp’t.
   Werner, J.

— The defendant, a mutual, fraternal, assessment, insurance association, issue to the plain tiff Is husband, Joe King on the 14th day of April, 1890, two certificates of insurance, for $2,-000 and $3,000, respectively, designated as being in classes B and 0, respectively. Joe King died June 2, 1891, leaving the plaintiff, his widow, as the beneficiary named in said certificates. At the time of King’s death there were sufficient funds in the treasury to pay the full amount of $2,000 upon certificate No. 1, in class-B, and as to certificate No. 2, in class 0, .the membership was sufficiently large to pay $1,813.24. It was therefore conceded by the defendant that, if the plaintiff was entitled to recover at all. it. would be for the sum of $4,232.68, which included interest to the-date of the trial. Those becoming members of the defendant association were required, by article 10 of its by-laws, to pay a membership fee and an advance assessment, and thereafter to pay assessments as made by the board of directors, in accordance with the table of rates set forth in said article 10. By article 13 of said by-laws it was made the duty of members to pay each such assessment within twenty days after receiving the. notification thereof from the secretary, who was required to send the same to-the members of the class or classes in which the assessment was made. Section 2 of said article 10 provides for the form of notice and the manner of sending the same. It was the custom of the defendant to send its notices by mail to the members, whose names were taken from the books. Under section 6, art. 7, of the by-laws, the board of directors adopted a resolution requiring health certificates to be signed by delinquent members who desired to be reinstated, and delegated to the secretary of the defendant the power to demand, in such cases, either such certificate or a re-examination. ' It is claimed for the defendant that a notice of assessment was sent to Job King on the 1st day of March, 1891, which was not attempted to be paid until the succeeding 25th of May, when the plaintiff mailed to the defendant a check for fifteen dollars. Defendant’s secretary immediately wrote to King, inclosing a health certificate, and stated in his letter “ the remittance is held subject to the return of the health certificate signed.” This health certificate was not signed or returned, and on June 3d, after learning of King’s death, said secretary returned said check of May 25,1891. Between April 14, 1890, and March 1, 1891, various assessments were made upon the members in classes B and 0, upon which said King had been in arreas, and his delinquency had been the subject of correspondence between him and defendant, through its secretary. This feature of the case will be referred to in greater detail further on.

Two questions are presented for our consideration. The first of these relates to the service of the assessment notice of March lr 1891. Was it duly served ? The evidence given by defendant’s secretary and clerk shows that it was the custom of the defendant to send out notices on the first or second day in each month when assessments were made, and that, according to the books of the defendant, a notice was mailed to Job King on the 2d of March, 1891. But Tiffiny, the secretary, testifies simply upon information derived from the clerk and the books ; and Leonard, the clerk, says he has no personal recollection of sending the notices to King, but relies entirely upon the fact that the usual course of business required it, and that the books indicate that it was sent. There is-no affirmative evidence that the notice was ever received by King. To meet this diffiulty, defendant offers two suggestions : First, that the presumption of regularity as to defendant’s corporate acts, is sufficient to place the burden upon plaintiff of proving that the notice was not received; second, the plaintiff’s counsel, in summing up the case, admitted the receipt of notice, and that his admissions are binding upon the plaintiff. As to the first of these suggestions, it may be enough to say that it was incumbent upon defendant to prove affirmatively that this member had, by some act or omission on his part, forfeited his rights under these certificates. Defendant’s custom of sending notices, as proved upon the trial, was, of course, evidence which it was the duty of the jury to consider, but it was not conclusive. We do not concur in the view of defendant’s counsel that the admissions of plaintiff’s counsel upon the subject of notice take that question .out of the case. It is uudoubtedly the rule that an admission made by an attorney, in open court, upon a question germane to the issue, is binding upon his client. Adee v. Howe, 15 Hun, 20. But this rule has its limitations. The client’s responsibility cannot be extended beyond the fair import and meaning of the admissions. There is nothing upon the record to show precisely what the admissions were in this case. The court, in its charge upon this subject, says : “It has been suggested on the part of the counsel, in the submission of the case, that it was admitted that they had received these notices from time to time. While that admission has not gone upon the record, yet you have a right to take it into account, in determining this question which is submitted to you for your determination.” Thereafter defendant’s counsel requested the court to charge “that they had a right to take into consideration, in arriving at their verdict, the admissions made by the counsel for the plaintiff upon his argument before the jury, the same as though it had been admitted in open court before submission.” And the court so charged. It will be observed that, while defendant’s request to charge was complied with, there is nothing upon the record which indicates the extent, or the precise purport, of the alleged admissions ; or which permits us to assume that the ■question as to the notice of March 1st was no longer one of dispute. The charge, which was quite as broad as the request, simply instructed the jury that they had a right to consider these admissions, whatever they were, the same as though, they had been made in open court before the submission of the case. How are we to determine, therefore, that the jury did not find against the ■defendant upon the question of notice ? And, if such was the finding, how can we say that it was not justified by the evidence ?

The only remaining question to be. considered relates to the exception taken by the defendant to that portion of the charge in which the jury were instructed “that unless the defendant association had received from the deceased, from time to time, those assessments after they became due according to the terms of the notices of assessment, and had established that line of credit with the deceased that led him to believe that it would be conducted in the future as in the past, then it would not be absolute to cut him off, it is a question for the jury,” and to the exceptions taken upon the refusal of the court to charge as requested at folios 192 and 194 of the case. We think the submission to the jury of the question whether the defendant, by its course of dealing with King, had waived any of the provisions of defendant’s by-laws, was proper. King became a member April 14,1890. On December 30, 1890, defendant’s secretary wrote a letter to King, in which his attention was called to the fact that he had not paid his admission fee, and that he was “in arrears for an advance asssessment in the O class for $2.40, together with assessment No. 2 for same (which expired September 5th), making a total of $6.80.” The letter concluded as follows: “Kindly let us. know what disposition you wish made of the matter.” In relation to this delinquency the secretary testifies, “I cannot say whether the health certificate was required in this letter or not.” Payment of this $6.80 was received on January 30, 1891, and again the secretary says, “I have no means of knowing, personally, that any health certificate was required at the time"this $6.80 was paid." On February 12,1891, a payment for $8.34 was received “on account of assessments for Nov., Dec., and Jan.1" Upon the receipt was indorsed this memorandum, “Feb. ass’t, $2.78, expires Feb’y 20,’91. Please remit.” The secretary again testifies, “I do not know whether any health certificate was required at this time or not.” Receipts given by the defendant to King, dated July 15, 1890, August 5, 1890, October 6, 1890, and October 20, 1890, show that payments were credited to King, “to be applied as the condition of his account may indicate.” Health certificates were required in only two instances before the receipt by the defendant on May 25,1891, of the $15 check, —one on October 4,1890, because of the nonpayment of the assessment due September 20,1890, and the other on March 10,1891, for nonpayment of assessment due February 20. 1891. It is true that in March and April, 1891, assessment notices were sent out containing the following clause." The sending of this notice shall not be held to waive any forfeiture or lapse of certificates caused by nonpayment of an amount previously due,” and the further indorsement, in red letters : “This notice is sent as a matter of information, that you may know the amount of arrearage which you will be required to pay, should you desire to make application for a reinstatement. Bear in mind that so long as you are in arrears you are not entitled to the benefits of the association.” There is, however, no evidence showing that these notices were in fact served upon King, except as appears by the statements of Tiffany and Leonard, which must be taken with the qualifications that they testify from their knowledge of the usual course of business, rather than from •personal recollection in this instance. The admissions of counsel above referred to cannot be said to apply mure specifically to these notices than to any other; but a more conclusive answer to the argument which these notices seem to furnish the defendant lies in the fact that there is nothing to show that the same form of notice was not used during the period of 1890, when the payments from King were repeatedly received after they had lapsed. Neither is there any evidence showing that anything was ever done by defendant to terminate King’s membership, except by the sending of notices, the terms of which it disregarded when it chose to do so. It was entirely reasonable for the jury to infer that the course of dealing between the defendant and King had not been changed, and was not strictly in conformity with the by-laws or the provisions of these notices. It does not lie in the mouth of the defendant to say that its members are bound by the strict letter of its by-laws and resolutions, so long as it appears that they were waived or ignored by the .defendant. It should be borne in mind that neither the saving clauses of these notices, nor the provision requiring health certificates from lapsed members, are subjects which are regulated by the by-laws of the defendant. These matters seem to have been acted upon by the secretary in the exercise of the power and discretion given him by the board of directors. The presumption of regularity which is claimed for defendant’s corporate acts cannot be held conclusive, as against evidence to the contrary, and all disputed questions arising therefrom were properly submitted to the jury.

This discussion leads us to conclude that the case is brought fairly within the rule of Baker v. Association, 9 St. Rep. 658, and Griesa v. Mass. Ben. Association, 39 id. 1, holding that prompt payment of assessments may be waived, and the right to treat the contract as forfeited suspended,, by a course of dealing between the association and a member which gives the latter a right to assume that prompt payment will not be strictly enforced ; and of Shay v. Nat. Ben. Society, 54 Hun, 109; 26 St. Rep. 579, deciding that the sending of a second notice, when a member is in arrears, is a waiver by the association of its rights to treat the contract as terminated; and of Koelges v. Insurance Co.. 10 Abb. Prac. N. S. 176, that upon disputed evidence the question of waiver is for the jury.

It having been conceded upon the trial that the refusal, of defendant’s secretary to furnish plaintiff with blanks for proofs of death constituted a waiver of the right to demand such proofs, that question need not be considered.

We are of the opinion, therefore, that the charge contains no errors which were detrimental to the defendant; that the case was properly submitted to the jury ; a"nd that the verdict is sustained by the evidence.

Judgment affirmed, with costs.

All concur.