text:
    Isabella M. Baird, as Executrix, etc., App’lt, v. William Baird, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

      1. Evidence—Admissions—Testator.
    . The statements of a deceased mortgagee that the mortgage was with, out consideration are admissible against his executrix, in a foreclosure action.
    2. Same—Parol—Mortgage.
    Evidence of matters, which preceded the execution of a mortgage, is admissible to show want of consideration.
    Appeal from a judgment in favor of defendant.

      Arthur IS. Sutherland, for app’lt; George A. Benton, for resp’t.
   Haight, J.

This action was brought to foreclose a mortgage given by the defendant William Baird to John Baird, the plaintiff’s testator, as a security for the payment of the sum of $1,500. The county court has found as facts that the mortgage was executed, and delivered without intending the same to be a valid and subsisting security, and that it was not the intention of either party to said instrument that it was to be a valid and subsisting security, based upon any consideration in fact, or to be enforced against the defendant William Baird, and was never to be recorded; that the mortgage was not recorded by the plaintiff’s testator, but was recorded by the plaintiff herself after her marriage with him in the year 1876. That John Baird, on different occasions after the execution of the mortgage, and to different parties with whom he had conversations upon the subject, stated that there was no indebtedness existing from the defendant to him, and that there was no consideration for the mortgage, and that it was not to be enforced, and was not to be recorded. Upon the trial, evidence was given tending to show that in the year 1878 John Baird was the owner of -the farm upon which the mortgage in suit was given; that he had two sons, James and William; that he was indebted to them in the sum of $5,000, and that it was agreed between them that this indebtedness should be paid by his deeding to them each an undivided half of the farm in question; that pursuant to that agreement the boys entered into possession of the farm and have since occupied the same. That subsequently, and about the 80th day of October, 1874, and in con-. sideration of the agreements so made John Baird executed and delivered to his sons a deed of the premises, and thereupon asked them each to execute and deliver back to him a mortgage thereon for the sum of $1,500, stating that he wished it only for the purpose of controlling the place, and preventing their selling it in case either of them should get into trouble through speculations or otherwise; and that he would not have it recorded, or hold it as an evidence of any debt owing to him, but would surrender it up, and have the mortgage canceled, whenever it was necessary and advisable so to do; that thereupon the mortgages, of which that in suit is one, were executed and delivered to him. Our examination of the evidence leads us to the conclusion that it is sufficient to sustain the findings of the trial court. The plaintiff is the personal representative of the deceased, and stands in his place. She is not a purchaser or assignee for value of the mortgage, and we think that there can be no doubt but that the declarations of her testator, made during the time that he was the holder and owner of the mortgage, were competent as evidence.

A question exists in reference to the competency of the evidence given at the time of and before the execution and delivery of the mortgage. The evidence was taken under objection, and it is now claimed that it tends to contradict' an instrument which is under seal. We are, however, inclined to the view that the-evidence was properly received. If it should be held that the evidence could not be received for the purpose of showing want of consideration in the mortgage, or that it had no consideration, still we think it was competent to show the circumstances and purpose for which it was delivered. But we are inclined to the view that it may also be received for the purpose of showing a want of consideration. It is true that the mortgage is under seal, and recites that it was given in consideration of the sum of $1,500. Formerly a seal upon an instrument imported consideration, and the same could not be rebutted .so as to invalidate the instrument; and such is still its effect upon executed instruments, such as a deed of real estate, but upon excutory contracts its effect has been changed by statute so that a seal is only presumptive evidence of a sufficient consideration, which may be rebutted as if the instrument was not sealed. 2 Rev. St. p. 406, § 77; Code Civ. Proc., § 840. A mortgage is an executory instrument, and comes within the provisions of this statute.

In Jones on Mortgages (5th ed.) at § 1297, it is said that want of consideration is a good defense, and parol evidence is admissible to show that no debt ever existed between the parties to the mortgage. At § 613 it is said that: “ A mortgage under seal implies a consideration at common law, and none need be proved, and it is good if it is shown that none was given. Neither courts of law or equity will allow the consideration to be inquired into for the sake of declaring the instrument void for want of consideration, but they will for the purpose of ascertaining what is due upon it. * * * In New York a seal affords only presumptive evidence of a sufficient consideration, and this presumption may be rebutted in the same manner and to the same extent as if the instrument were not under seal. A seal imports a consideration so that the burden is upon the party who sets up the want of consideration to prove that it was made without consideration.”

In Parkhurst v. Higgins, 38 Hun, 113, the precise question involved appears to have been considered by this court, and Smith, P. J., in delivering the opinion of the court, says: “Testimony was given on the part of the defendants of declarations made by Caleb Higgins at the time of the execution of the mortgage, and also prior and subsequent thereto, with reference to the object, purpose, or consideration of the mortgage. The plaintiff’s counsel objected to the proof of any declaration not amounting to an agreement between the parties as immaterial, also to any parol proof on the part of the defendants to contradict the mortgage, and also to any declarations of the mortgagee against the plaintiff. These objections were overruled, and the plaintiff’s counsel excepted. We think there was no error in the rulings. It was competent to show by parol the actual purpose and consideration of the mortgage, and the fact that it was without consideration.”

In Davis v. Bechstein, 69 N. Y. 440, Davis executed to one Riley a bond and mortgage simply as an accommodation to be used as collateral security for a loan he proposed effecting. Riley failed to procure the loan, but sold the bond and mortgage to Bechstein. In an action brought' by Davis to have the bond and mortgage canceled it was held that Riley had no'authority to sell the bond and' mortgage to Bechstein, that it was given without consideration, and that Davis was entitled to judgment declaring the bond and mortgage void.

In Schenck v. Warner, 37 Barb. 258, it was held that the evidence of the declarations and admissions of the deceased mortgagee in his lifetime tending to show a part payment of the mortgage by the plaintiff was admissible in such action, it not being given against a subsequent purchaser or assignee for value. Anthony v. Harrison, 14 Hun, 198, 217; affirmed, 74 N. Y. 613; Cady y. Jennings, 17 Hun, 213; Bank v. Bache, 30 Hun, 351; Wearse v. Pierce, 24 Pick. 141; Hannan v. Hannan, 123 Mass. 441; Cawley v. Kelley, 60 Wis. 315-319; Briggs v. Langford, 107 N. Y. 680; 12 St. Rep. 461. James Baird was a competent witness for his brother William. Lyon v. Ricker, 141 N. Y. 225-232; 56 St. Rep. 804; Hobart v. Hobart, 62 N. Y. 80. In his testimony he spoke of the interview between William and his father, occurring in March, 1873, and stated that the books were produced, and that the accounts were footed up, and that he footed up William’s account, aud that the amount was $2,600. The evidence was taken under objection. It was not competent for the witness to testify as to the contents of the books, for the books would furnish safer evidence; but we do not understand him to have given the contents of the books. He has only stated the amount of the footings of the figures made by himself. The amount of these footings came in as a part of the conversation that took place between the parties at the time the agreement was made to transfer the farm in consideration for the amount that was owing to William and James by their father.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Joseph W. Ayer, Resp’t, v. Nathan Colgrove, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Evidence—Seduction.
    In an action by the father for seduction, evidence that the defendant promised the girl to marry her if anything happened to her, is admissible.
    2. Same.
    The declarations of a third person that he had the girl in the family way are not competent to show that she had had intercourse with him.
    3.. Same.
    Evidence that the girl had intercourse with another man, after the seduction but not within the period of gestation, is incompetent, though pregnancy was alleged to have resulted from the intercourse with defendant.
    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 of the court.

      H. H. Relya, for app’lt; G. W. Harding, for resp’t.
   Haight, J.

This action was brought t.o recover damages for the seduction of the plaintiff’s infant daughter. The evidence given on behalf of the plaintiff tends to show that his daughter Ella was of the age of 17 years, and was living in defendant’s family as a servant; that in the month of February,1887, she was seduced by and had intercourse with him, under the representation that, if she would let him have his wish, if anything happened he would marry her; that such intercourse thereafter continued until the 22d day of November, at which time she became pregnant, and was thereafter delivered of a child, on the 9th day of August, 1888.

While it may not be material or competent to prove that there was an existing contract of marriage between the defendant and Ella, we think it was proper to show that such a promise was made in order to accomplish the seduction. Seduction is the act of the man in inducing the woman to permit unlawful sexual intercourse with him. This may be accomplished by the use of seductive árts, such as flattery, solicitation, importunity, and promises.

On the trial, one Stewart was sworn as a witness for the defendant, and testified that one Dr. Crandall informed him that he had this girl in the family way. The plaintiffs counsel asked the court to strike the testimony out.- The court did not strike it out, but instructed the jury that “the testimony of this witness is not to be considered by this jury as tending to show that this girl had had any relations with Dr. Crandall, or with any other man. It is as .vicious as it can be, and is to be utterly disregarded by this jury as tending to prove any facts in this case of that character.” An exception was taken by the defendant to these remarks. We think the instruction was proper. The evidence was certainly incompetent. It was an attempt to establish that this girl had had improper relations with Dr. Crandall, not by testimony, but by the hearsay declarations of a person not under oath. It was vicious in this respect, and it was the duty of the court to instruct the jury to disregard it.

The defendant offered to show by one Butler and a Mrs. Martin that in September, 1887, Ella had illicit intercourse with Butler, at an hotel in Portageville. This evidence was excluded, and an exception was taken. The time to which this offer relates was after the alleged seduction, and before she became pregnant. It was not within the period of gestation. If it had been, it would have been proper, as tending to show that the pregnancy might have occurred in consequence of such connection. But, not being within the period within which the child could have been begotten, it was only material upon the question of the girl’s character; and it is well settled that her conduct subsequent to the seduction cannot be inquired into for the purpose of affecting her character or in mitigation of damages. If she was chaste and virtuous prior to the. time that the defendant accomplished her seduction and ruined her reputation, he cannot complain of her subsequent conduct, for it may well be attributed to his original wrong.

In the case of Boyce v. People, 55 N. Y. 644-646, similar evidence was offered and excluded. Allen, J., in delivering the •opinion of the court, says : “The rejection could, be sustained upon the ground that the offer was not limited to show an illicit intercourse at a time when the child could have been begotten,' and was, in effect, simply to show that, after the alleged seduction, ■ she had been guilty of fornication with another person, which was clearly incompetent.”

In Holcomb v. People, 79 Ill. 409-414, similar evidence was offered, and it was said in reference thereto: “In this class of cases an' innovation has been made on the strict rules of cross-examination so far as to permit the defendant to ask the woman whether within the period of gestation she has had intercourse with other men, for the purpose of overcoming the probability of accused being the father.” The evidence offered was held to be incompetent. See Kenyon v. People, 26 N. Y. 203; Wood, Mast. & S. (1st Ed.) 497; 5 Waite, Act. & Def. 670; White v. Murtland, 71 Ill. 250-264; Shewalter v. Bergman, 123 Ind. 155.

In Young v. Johnson, 123 N. Y. 226; 33 St. Rep. 486, the evidence of the misconduct of the plaintiff was before the alleged assault was made upon her, and it was therefore proper.

The judgment and order appealed from should be affirmed.

All concur.


text:
    Town of Salamanca, Pl’ff, v. Cattaraugus County, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Submission of controversy—Authority of attorney.
    Attorneys, representing the board of supervisors, have no authority to agree upon the facts and submit, under § 1279 of Code, a matter in controversy, relating to a claim by a town against the county for part of the expense of building a bridge.
    Controversy submitted without action, under § 1289 of the Code.

      O. S. Yreeland, for pl’ff; William H. Henderson, for def’t.
   Haight, J.

At the annual session of the board of supervisors of the county of Cattaraugus, á claim was presented on behalf of the town of Salamanca for $7,620.98, for money expended by its highway commissioner in thé erection of bridges within tlpe town in excess of one-sixth of 1 per centum of the assessed valuation of the taxable property of the town for that year. The claim was rejected, and a resolution passed that the board employ “Messrs. Hazard ,and Nash to attend to the county interest in the bridge cases now pending before the board;” and also another resolution that “N. M. Allen, Esq., be employed to act with Messrs. Hazard and Nash in defending the .interest of the county in any suit brought against the county for reimbursement of moneys paid out for bridge purposes.” Thereupon Messrs. Allen, Nash and Hazard executed an agreement in writing with J. S. Whipple, the supervisor of the town of Salamanca, submitting the matter in controversy to this court upon facts agreed upon.

The controversy between the town and the county would seem to involve a construction of §§ 180, 132 and 133 of chapter 568 of the Laws of 1890, but we are only called upon to answer certain questions involving abstract questions of law, and not for the awarding of any judgment. People v. Mutual Endowment & Acc. Ass'n, 92 N. Y. 622.

Again, there is a question as to whether the attorneys representing the board of supervisors had the authority to agree upon the facts and submit the matter in controversy. Allen, as we have seen, was employed to act with Hazard and Nash to defend the interests of the county in any suits brought. Hazard and Nash were employed to attend to the county’s interest in the bridge cases pending before the board. This is all of the authority that appears, to have been delegated to them. The Code (§ 1279) provides that: “ The parties to a question in difference which might be the subject of an action, being of full age, may agree upon a case. * * * The case must be accompanied with the affidavit of one of the parties to the effect that the controversy is real. * * * The submission must be acknowledged or proved and certified in like manner as a deed to be recorded in the county where it is filed.”

If the parties to the submission had been natural persons, they should have executed the agreement, 'and the affidavit should have been made by one of them. Bloomfield v. Ketcham, 95 N. Y. 657.

The board of supervisors possibly may act through agents, but, where an agent is required to discharge any of the duties of the board, there should be no question as to the intention to delegate such power to him. The board of supervisors doubtless had the right to audit and determine the amount that had been expended during the year by tire highway commissioner of the town. The amount so expended is definitely fixed in the facts agreed upon accompanying the submission; so that we are confronted with the question as to whether the attorneys representing the county were authorized—First, to agree upon a submission of the matter in controversy ; and, second, to agree upon facts which would relieve the board of the power of auditing the claim. Our conclusion is that authority was not' given, and consequently we have not jurisdiction to determine the controversy. It may be, as is claimed, that those representing the town have been misled by the attorneys representing the county. They joined with the representative of the town in submitting the controversy to the court for its determination, and then, upon the argument, took the position that the submission should not be acted upon by the court. Their practice is not to be commended; but this cannot affect the question of our jurisdiction. The proceeding must be dismissed, but without costs.

All concur.


text:
    Helen M. Campbell, App’lt, v. George Ellwanger, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)
    Mortgages—Foreclosure—Redemption.
    The wife of the mortgagor, who was not made a party to the foreclosure action, may redeem during her husband’s lifetime.

      Appeal from a j udgment dismissing the complaint, with costs.

      Frederick W. Smith, for app’lt; Joseph S. Hitnn, for resp’ts; Hernán W. Morris, for resp’t Massey.
   Haight, J.

This action was brought to redeem the premises described in the complaint from the mortgage executed by Cyrus M. Campbell to James H. Gregory, and for an accounting of the rents and profits, and for dower. On the. 1st day of September, 1856, Campbell purchased of Gregory the premises in question, and on the same day he executed and delivered to Gregory a purchase money mortgage for $32,000. On the 3d day of December, 1857, and after default in the payment of the money due upon the mortgage, Gregory commenced an action for the foreclose thereof, which action proceeded to judgment, and the premises were sold thereunder on the 1st day of September, 1858, to Gregory, the mortgágee, who thereupon re-entered into possession thereof. The defendants are in possession, claiming title under conveyances made by Gregory since the foreclosure of the mortgage. The plaintiff was the wife of Campbell, and was not made a party in the foreclosure action. Campbell died December 4, 1888, and this action was brought in April, 1893. The trial court has found that the plaintiff had an inchoate right of dower in the property, which was not affected by the foreclosure suit, to which she was not made a party, but that her right to redeem the real estate from the mortgage was barred by the statute of limitations. The answers interposed set up both the 10-years and the' 20-years statutes, and the only question presented for our determination is as to whether the plaintiff is'brought within the provisions of either. As we have seen, Gregory was the mortgagee. He purchased the premises upon the foreclosure sale, and entered into possession thereof. The plaintiff was not cut off of her inchoate right of dower by the foreclosure, because she was not made a party thereto. As to her, Gregory became a mortgagee in possession. As mortgagee in possession, Gregory had a right to retain the possession of the premises until his mortgage debt was paid, and until such payment ejectment could not be maintained against him, either by the mortgagor or his widow. Phyfe v. Riley, 15 Wend. 248-254; Cooper v. Whitney, 3 Hill, 95-102. But the mortgagor, or one claiming under him, as against the mortgagee in possession, had the right to redeem by paying the mortgage debt. Winslow v. Clark, 47 N. Y. 261. Could the plaintiff redeem during the life of her husband while her right was inchoate? We think the question must be answered in the affirmative. It was so held in Taggart v. Rogers, 49 Hun, 265; 17 St. Rep. 646. In Simar v. Canaday, 53 N. Y. 298-303, Folger, J., in delivering the opinion of the court, says: “A wife who executes a mortgage jointly with her husband is nevertheless entitled to dower in the equity of redemption of which her husband is seized, notwithstanding the mortgage, which ‘right is not affected in equity unless she is made a party to the foreclosure. If omitted, she can come in at any time and redeem, notwithstanding a decree and sale in the foreclosure suit.”

In Mills v. Van Voorhies, 20 N. Y. 412, it was held that the existence of an inchoate right of dower in the equity of redemption of mortgaged premises was a good objection to title by a vendee in an action against him for specific performance of his contract Selden, J., in delivering the opinion, says:

“ The inchoate rights of the wife are as much entitled to protection as the vested rights of the widow.” 2 Wash. Real Prop. (4th ed.) 173; Davis v. Wetherell, 13 Allen, 63; Newhall v. Bank, 101 Mass. 431.

Formerly, a person entitled to redeem as against a mortgagee in possession had to bring his action within twenty years. Moore v. Cable, 1 Johns. Ch. 385; Slee v. Manhattan Co., 1 Paige, 48. But under § 97 of the Code of Procedure it was held that the action must be commenced within ten years. Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, id. 468. The Code of Civil Procedure (section 379) provides as follows: “An action to redeem real property from the mortgagee with or without an account of rents and profits may be maintained by the mortgagor or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises for twenty years after the breach of a condition of the 'mortgage, or the nonfulfillment of a covenant therein contained.”

Under this provision it has been held that the time to redeem has again been extended to twenty years. Shriver v. Shriver, 86 N. Y. 575-580. It is claimed, however, that § 379 of our present Code has no application, for the reason that the plaintiff, as the wife of the mortgagor, does not claim under him. The right of dower arises by reason of marriage and by operation of law'. It attaches to lands when the seisin and marriage relations are concurrent. Kursheedt v. Union Dime Sav. Institution, 118 N. Y. 358; 28 St. Rep. 933. But the dower right of the wife is dependent upon the seizin of the husband, and she consequently must claim though him. In Brackett v. Baum, 50 N. Y. 8-12, Rapallo, J., says: “The widow, though not deriving title from her husband, yet claims under him. * * * Her title is wholly dependent upon that which he acquired. It is only by virtue of his seizin that she can claim, and her title is subject to any claim to which the title he acquired was subject.”

Gregory, as we have shown, entered into possession in 1858. Since that time he and the defendants claiming under him have occupied the premises. Plaintiff’s remedy was by an action to redeem. This she has delayed bringing for thirty-five years. It is our opinion that her claim is barred, both under the ten-years statute of the old Code and the twenty-years statute of our present Code.

The judgment appealed from should be affirmed with costs.

, Dwight, P. J., and Lewis, J., concur; Bradley, J., not voting.


author: Per Curiam:

text:
    Charles H. Ketchum, App’lt, v. Romaine Depew, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Equity—Jurisdiction—Proof.
    An allegation, in an action for an injunction that plaintiff will be obliged to prosecute a multiplicity of actions to prevent trespasses, is not established by proof that defendant had committed a single trespass, without intention to assert any further right to come on the land.
    2. Same—Remedy at law.
    The complaint, in such an action, will be dismissed, if it appears on the trial that plaintiff has an adequate remedy at law.
    3. Same—“Waiver.
    A failure to plead that plaintiff has an adequate remedy at law, does not waive such defense, where the complaint states a purely equitable cause of action.
    Appeal from a judgment dismissing the complaint.

      Wm. M Morris .and M Hides, for app’lt; Charles W Kimball and Mr. Dwells, for resp’t.
   Per Curiam:

Judgment appealed from affirmed, with costs,” on opinion of Rumsey, J., at special term.

The opinion of Mr. Justice Rumsey, at special term, is as fol lows:

“ The plaintiff, in his complaint, alleged that the defendant entered upon the said premises, with his servant and reaper, and cut, and was still cutting, twenty acres of wheat growing thereon. It further alleged that the defendant daily, and several times a day, committed trespasses on said lands, and perfects a cause of action against said défendant, and that unless an injunction issue the plaintiff would suffer irreparable injury, which could not be compensated for in damages, and that to protect his rights he would be obliged to prosecute a multiplicity of suits. It needs no citation of authority to prove that if the facts thus stated were true the plaintiff would have a good cause of action for equitable relief, and that this action must be tried upon the equity side of the court. Such being the ease, there was undoubtedly no adequate remedy at law, upon the allegations contained in the plaintiff’s complaint. But the state of facts shown upon the trial was entirely different from that alleged in the complaint. All that appeared upon the trial was that the defendant entered upon the premises, and cut the wheat, and said he had been advised to do it. This was one single trespass. There was no pretense that the defendant contemplated entering upon the premises again, nor that he asserted any rights, except to take away that single crop of wheat. If the plaintiff brought an action at law for that trespass, he would be entitled, upon making a proper case, to recover the value of the wheat, and damages for the entry upon his land, and such a recovery would be a complete and adequate compensation for all that he bad suffered. Nobody can claim that such relief can be sought in an action in equity, and it is very clear than an action brought for such relief must be tried as an action at law. The case is precisely within that of Bradley v. Aldrich, 40 N. Y. 504. In that case it was said that “if a party brings an equitable action even now, when the same court administers both systems of law and equity, the party must maintain his equitable action upon equitable grounds, or fail, even though he may prove a good cause of action at the trial.” Such was the decision of the court of appeals in the case of Mann v. Fairchild, 2 Keyes, 111, which was followed in the case of Bradley v. Aldrich, supra. In the case last mentioned the action was brought for equitable relief, and that the defendants be required to rescind a contract which it was claimed they had procured by fraud. The answer in that case denied the allegations of the plaintiff, but it did not raise the question that there was an adequate remedy at law. The court, at special term, found the facts entitling the plaintiff to relief at law, but denied equitable relief. The judgment there entered was reversed at general term, without prejudice to the right of the plaintiff to bring an action at law. In the court of appeals the judgment of the general term was affirmed upon the sole ground that the plaintiff, having failed to establish a right to equitable relief, could not, in an action brought for that sort of relief, secure a remedy at law. The court say, “It was not the inteut of the law tc> enable a plaintiff to compel a trial by the court by merely alleging some ground for equitable relief, and, failing in that, have a trial of issues in an action for fraud, and an assessment of damages therefor, without a jury.” That case, as I said, is precisely in point, and requires the court to hold here that the plaintiff cannot recover in this action upon the proof made at the trial.

But it is claimed that the defendant has waived the right to object to a trial at the special term, because he has failed to set up in his answer that the plaintiff had an adequate remedy at law ; and several cases are cited which hold that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer. That doctrine was established when equitable jurisdiction was vested in the court of chancery, and legal jurisdiction in the courts of law, and it was applied in cases where the jurisdiction of the two courts was concurrent. In such cases, where the plaintiff might have sued at law, and obtained some sort of a remedy, or might have brought his action in the equity courts, and obtained a more complete remedy, it was held that, if the defendant permitted him to proceed to a hearing in the equity action without raising the point that he had a sufficient remedy at law, he had waived it. The reason was that the court of equity had jurisdiction, because, upon the facts proved, the plaintiff would be entitled to equitable relief, and that to permit the defendant to allow the case to proceed to a hearing before attempting to oust the court of its jurisdiction would result in a great injustice to the plaintiff. But it will be found that the rule was applied only in cases where, the remedy was concurrent, and it was only in such cases where the defendant was obliged to assert at the threshold of the case his claim that the action was not an action in equity. The rule was then as it laid down it the case of Bradley v. Aldrich,—that where the plaintiff came into court, invoking the jurisdiction of the courtof equity upon matters as towhichacourtof law had nojurisiction he was obliged to prove a cause of action in equity, and failing in that he lost his case. I have been unable to find any case where there was exclusive jurisdiciton in the equity court, in which the plaintiff, upon failing to prove his right to relief in equity, was still entitled to a judgment at law. In such cases the plaintiff was alway required to proceed in the law courts to obtain the relief to which he was entitled. A claim precisely like the one made here was presented to the court of appeals in the case of Dudley v. Congregation, 138 N. Y. 451; 53 St. Rep. 19, and was held not to be tenable. The opinion of the court in that case, at pages 459, 460, 138 N. Y. sustains the conclusion I have here reached, upon the authority of Bradley v. Aldrich, supra, see also Hawes v. Dobbs, 137 N. Y. 465; 51 St. Rep. 271.

The court is requested to send this case to the circuit for trial, but I do not think that such a course would be proper. It was not done in the case of Bradley v. Aldrich, and I think that this case should have the same direction as was given to that one. The complaint must therefore be dismissed, but not upon the merits.


author: Per Curiam.

text:
    Porter M. French, as Receiver, etc., App’lt, v. Ezra R. Andrews, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Corporations—Insolvency—What is.
    Insolvency of a corporation is a general inability to meet its obligations in the regular course of business.
    2. Same—Preferences.
    An insolvent corporation may, in tbis state, so apply its assets as to prefer some to other creditors.
    3. Same.
    Exchanging notes payable on demand for notes not due, so as to enable the holders to obtain judgments immediately, is not a transfer or assignment of property by the corporation, within chap, 564 of 1890.
    Appeal from a judgment entered in favor of defendant.

      J. S. Ilunn, for app’lt; Theodore Bacon and W. B. Hale, for resp’t.
   Per Curiam.

Judgment appealed from affirmed with costs, on the opinion of Yeoman, J., at special term.

The opinion of Mr. Justice Yeoman at special term is as follows :

Upon September 17, 1891, this defendant recovered judgments against James Vick, Seedsman, a business corporation of this city, located at Eochester.' The same day the sheriff levied under executions issued upon these judgments upon the personal property of the corporation. Upon the next day this plaintiff was appointed receiver for the corporation. This action is brought to set aside these judgments. The plaintiff claims that they are void, by § 48 of the stock corporation law (Laws 1890, c. 564). The portion of this section upon which the plaintiff relies then read as follows: “No officer, director or stockholder thereof (of such corporation) shall make any transfer or assignment of its property or of any stock therein to any person in contemplation of its insolvency, and every such transfer or assignment to such officer, director or other person or in trust for them or for their benefit, shall be void.” The following facts are claimed to bring this-case within this statute :- Upon the 10th day of September, 1891, this defendant held notes of the corporation amounting to $7,000, which were not yet due. The corporation was also owing him $3,967.19, which was due. Upon that day the treasurer of the corporation sent for the defendant, and informed him that the assets of the corporation were largely in excess of its liabilities, but that the corporation had no money, and would be unable to get money to meet its obligations, and would be compelled to go out of business. Both the treasurer and this defendant believed these statements to be true. The assets of the corporation were, in fact, then less than its liabilities. The treasurer then proposed that the defendant should advance $500 to pay laborers, and surrender these immature notes, and receive notes of the corporation payable on demand. To this defendant assented, paid the $500, gave up the notes, and received ten notes of $1,000 each and one note of $976.19, each payable on demand. He then immediately proceeded to put them in eleven judgments in the municipal court of the city of Bochester, the maximum jurisdiction of which in suph cases was $1,000. These are the judgments in question. The practical result of this transaction was that the defendant sued all its claims immediately in a court in which judgment could be rendered in six days.

. This statute is substantially the same as the one for which it was substituted. 1 Bev. St. p. 603, § 4. There are two things essential in order to make it operative,—there must be a transfer or assignment of property, and this must be done in contemplation of the insolvency of the corporation.- “Insolvency” has been differently defined in different courts. By some it is said to be a condition in which the value of the assets is less than the amount of liabilities. By others it is said to be a general inability to pay obligations as they became due in the regular course of business. Many a business is at times insolvent according to the first of these uses of the word, although it is prosperous, and no one thinks for a moment that any necessity will arise for applying its property to the payment of its liabilities by process of law. There is no necessity for the law to interpose in behalf of its creditors so long as the corporation is able to meet its obligations promptly. The use of this word in the-statute under consideration is the latter use. Brouwer v. Harbeck,, 9 N. Y. 589; People v. Excelsior Gaslight Co., 3 How. Pr. (N. S.) 137. The statute is meant to apply when it becomes apparent to those assigning or transferring its property that the corporation is in the condition described in tbe latter-of these definitions, so that the question confronts them, “ How are the assets of the corporation to be used, not in carrying on its business, but in meeting its obligations? ” That the corporation was insolvent according to this use of the word was known to both the treasurer and the defendant at the time the notes were given.

It follows, therefore, that, if what was done was a transfer or assignment of the property of the corporation, these judgments are void. The doctrine that the assets of an insolvent corporation are a trust fund for creditors, and that all should share ratably therein, is not the law of this state. In this state an insolvent corporation may, if not restrained by its charter or by statute, apply its assets to the payment of its creditors, so as to prefer some to others. Coats v. Donnell, 94 N. Y. 168. Equitable considerations, based upon the principle of equality among creditors in such a case,, cannot, therefore, be invoked to supplement the statute under consideration. The statute must operate according to its provisions, when, construed in the light of the legislative intent. The act prohibited is “any transferor assignment” of the corporate property, and, to' make these judgments void, the acts of the treasurer must be a, transfer or assignment of the property. Creditors of such corporations are not discouraged by the courts from obtaining such preferences as they may by diligence. Their right to do so, and the propriety of their doing so, are fully recognized. The- attempt by this statute was to limit the aid which the officers of a corporation might give to the same end. It is plain that this provision of the law was not intended to prohibit every act on the part of officers of such corporations which might enable, or tend to enable, a creditor to obtain a "preference. The words are not apt words for such a purpose. They are quite limited in their application. Moneyed corporations were not subject (1 Rev. St. p. 605, § 11) to this provision of law to which business corporations were subjected. But other concurrent statutes (Id. p. 591, §§ 8, 9) provide a similar restriction as to them, and, in addition thereto, that, in a like case, “ any payment made, judgment suffered, lien created or security given,” with intent to give a preference to a creditor, should be void. This must have been intended to restrict and control the action of such corporations to a greater extent, where preferences came in question, than business corporations were restrained or controlled under like circumstances. It is, however, equally plain that the restriction which was placed upon business corporations was, so far as it went, intended to restrict the giving of preferences by insolvent corporations. The question is, what is a “transfer” or “assignment” within the meaning of the act? In Kingsley v. First Nat. Bank, 31 Hun, 329, it was held, where judgments were obtained against an insolvent corporation upon offers of judgment made by it to enable the creditor to obtain a preference, that the judgments and executions issued upon them were void. In this case the lien was acquired by the execution. There was no real estate upon which the judgment became a lien. The opinion of the court evidently regards the judgment and execution together as effecting a transfer of the property, and thus the corporation, by its offer of judgment, was a party to the transfer itself, and within the statute. In Varnum v. Hart, 119 N. Y. 101; 28 St. Rep. 262, Judge Earle makes a suggestion (page 107, 119 N. Y), that'the judgment is only a higher form of obligation, and does not, where there is no real estate, operate the transfer of any property; that it is the execution that does that as to personal property; and that, where the officers of a corporation have nothing to do with the execution, they do not act within the prohibition of the statute. When he made this suggestion, he was not ignorant of the decision in the Kingsley Case, for he refers to it in the same opinion. The Kingsley Case is not the controlling authority in the case at bar, for in this case the treasurer of the corporation took no part in any of the acts which in themselves were a transfer of the property of the corporation. It is perfectly plain that what the treasurer did was for the purpose of putting the defendant where he could sue at once, and thus obtain a preference. It is one thing to make a transfer of property, and quite a different thing to aid some other person to get into position where he may, at a more remote stage in the proceedings, compel a transfer of corporate property himself. If the debt had been due, a suggestion by the officer of the corporation as to the true state of affairs would have resulted in a judgment and a preference. The giving of several small notes for a debt due, so that actions can be brought in a court of limited jurisdictions, and judgments obtained sooner than otherwise, might aid a creditor in obtaining a preference. ■ Many other ways might be suggested whereby officers of. a corporation might be instrumental in a creditor’s obtaining a preference, and yet not participate at all in the actual transfer or assignment of any of the property of the corporation. If their acts are to be held within the provision of the statute, then the statute means that the act shall be done on the part of the corporation enabling, or tending to enable, the creditor to obtain a preference. It needs no argument to show the falsity of such a result. “ There is no meaning of the word 1 transfer ’ which carries * * * any other idea than that of the bearing over of a right or title of property in a thing from one to another.” Sands v. Hill, 55 N. Y. 22.

Where, then, is the line to which the statute reaches, but beyond which it does not go ? The only one that it is practicable to establish is the one that the terms of the statute provides. The prohibited act must itself accomplish, or at least enter into, the actual transfer or assignment of the property. This view is sustained in the Varnum Case. In that case a creditor was enabled to obtain a preference by judgment and execution. This was accomplished by the officer of the corporation upon whom the execution was served, keeping, by agreement with the plaintiff, the fact of the pendency of the action from the knowledge of all others, including the other officers of the corporation. If this had not been done, the preference would have been prevented. In that case the preference was secured by the co-operation of the officer of the corporation, as much as it was in the action at bar. In the one case, the time in which to procure the judgment was shortened by the officer of the corporation ; in the other, the interference of others interested to defeat the preference was prevented by the officer of the corporation.

It follows that the judgments are valid.


author: Van Brunt, P. J.

text:
    Thomas Sheffield, App’lt, v. Frederick Robinson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    1. Appeal—What not appealable.
    An order sustaining or overruling a demurrer is not appealable.
    2. Estoppel—Validity of bond.
    The obligor in a bond to discharge a mechanic's lien cannot, after the discharge of such lien, object that the amount of the bond exceeds the jurisdiction of the court which accepted it.
    Appeal from an order overruling a demurrer, and from a judgment entered upon the order dismissing the complaint.

      M. F. Halpin, for app’lt; F. B. Troutman, for resp’ts.
   Van Brunt, P. J.

It has been repeatedly held in this court and in the court of appeals that an appeal from an order sustaining or overruling a demurrer is not permitted, by the Code; the appeal must be from the judgment. Therefore, so much of the appeal as is from the order overruling the demurrer must be dismissed, with $10 costs.

The appeal from the judgment brings up the question as to whether the new matter contained in the answer was sufficient to constitute a defense to the cause of action set out in the complaint. It appears that one Thomas L. Sheffield, in February, 1889, filed a notice of a lien in the county clerk’s office in the city and county of New York, claiming a lien for work done and materials furnished upon certain buildings in said city; that in such notice the defendant Robinson was named as contractor, and one Edward Early was named as the owner of such building. Robinson subsequently made an application to the city court of New York, and to one of the judges thereof, for an order fixing the amount of a bond to be given to discharge such lien. Thereupon the said court, by an order, fixed the amount of the bond to be given at $2,100.' Robinson thereupon entered into a bond, as principal, together with one Mary E. Robinson ^ and the respondent Murray, as sureties, for the purpose of discharging the said lien, which bond was duly approved; and, upon the filing thereof, such lien acquired by the filing of said notice was discharged. Sheffield then commenced- an action to foreclose the said mechanic’s lien. Subsequently the claim and cause of action were assigned to the plaintiff herein. Issue having been joined in said action of foreclosure, the same was tried before a referee, who gave judgment for the plaintiff; but, inasmuch as the lien had been discharged by the filing of such bond, a judgment in form only directing a-sale of the premises was entered. Neither the principal nor his sureties paid the amount found due by said judgment of foreclosure; whereupon application was made by the plaintiff for leave to maintain an action in his own name against said principal and sureties for the amount of the bond. Such leave was granted; and the question presented is whether the plaintiff can maintain an action upon said undertaking because its amount exceeded the jurisdiction of the city court. In view of the fact that the undertaking was treated by all the parties as one having validity, and upon the faith of which the mechanic’s lien was. discharged of record, it seems to us that the question is no longer opened for discussion, under the decision of the court of appeals in Goodwin v. Bunzl, 102 N. Y. 224.

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

All concur.


text:
    Emeline Lee, App’lt, v. Mary A. Timken, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 12, 1894.)

    Appeal—What appealable.
    An order sustaining or overruling a demurrer is not appealable.
    Appeal from an order sustaining a demurrer to the complaint.

      V. W. Kingsley, for app’lt; George K Mott, for resp’t.
   Per Curiam.

As we have had occasion to point out in the case of Sheffield v. Robinson (decided herewith) 62 St. Rep. 763; 30 N. Y. Supp. 799, an order sustaining or overruling a demurrer is not appealable; the appeal must be from the judgment. Appeal accordingly dismissed, with $10 costs and disbursements.


text:
    Hiram L. Brown, Resp’t, v. Charles M. Clark, App’lt. Same, Resp’t, v. John Melvin, App’lt. Same, Resp’t, v. Edwin D. Mead, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Corporation—Trustees—Liability.
    Though a corporation has ceased to do business, yet, if not dissolved, its trustees are liable for a failure to file the annual report.
    Appeal from an interlocutory judgment in each case, sustaining a demurrer to the answer.

      W. H. Knapp and T. H. Bennett, for app’lts; F. L. Brown and jffl. M. Morse, for resp’t.
   Per Curiam.

Interlocutory judgment appealed from in each case affirmed, with costs, with leave to amend answer within 20 days as to the issue in question, upon payment of the costs of this appeal, on opinion of Adams, J., at special term.

The opinion of Mr. Justice Adams at special terms is as follows:

If this were an action in which the court felt itself authorized to determine the issue upon principles of equity, it would not be a matter fraught with much difficulty to hold that the pleading demurred to contained a good defense, for it is easy to see that the plaintiff is taking advantage of a condition of things for which he is in a measure responsible to enforce the payment of a debt by parties who, while technically guilty of an omission of their statutory duties, have not by such omission prejudiced the plaintiff or his assignor in the slightest degree. But ' the action is a strictly legal one, and, moreover, it is brought to enforce a statutory liability, which, although highly penal in its character, is one which is also beneficial, so far as the general public is concerned; and therefore, while the courts have not been anxious to extend by construction the liability of a trustee for a violation of the duty imposed by the statute, they have nevertheless manifested a disposition to apply the remedy which it- is designed to afford with considerable rigor. The portion of the answer demurred to was undoubtedly drawn by the pleader„with the sole idea of setting up by way of justification a state of facts which might be regarded as tantamount to an abandonment by the corporation of the business for which it was organized, as well as a practical termination of its corporate functions. It is true that in the last paragraph there is an allegation to the effect that the plaintiff, his assignor, and Calvin P. Brown each had due knowledge of all the facts, which, as' has been shown, stand admitted; and upon the argument it was contended that for this reason the plaintiff should not be permitted to recover. But if it may be held that such a defense is sufficiently pleaded (of which there is serious doubt), it would be difficult, in view of repeated adjudications, to make it available upon the facts of this case. Had Mather continued to act as a trustee until the default complained of occurred, unquestionably neither he nor his assignee, within well settled principles,' could maintain this action. Briggs v. Easterly, 62 Barb. 51; Bronson v. Dimock, 4 Hun, 614. But, as is said by Yan Brunt, J., in the latter of these cases, the reasoning therein does not apply where it appears that the assignor, as in this case, had ceased' to .be a trustee before the failure to file the annual report, and it necessarily follows that the mere fact that the plaintiff and his assignor are stockholders, that'as such they were present at and participated in the meeting of December 13th, and were made thoroughly acquainted with the financial condition of the company, does not constitute any defense; and so it was expressly held in Sanborn v. Lefferts, 58 N. Y. 179. It remains, therefore, to determine whether the averments set forth in the second defense to establish such an abandonment by the corporation of its business as would justify its trustees in omitting to file the annual report required by the statute. It has been repeatedly held that where a corporation is practically dissolved and abandoned the requirement as to filing a report is no longer in force (Bank v. Studwell, 74 N. Y. 621; Losee v. Bullard, 79 N. Y. 404; Bruce v. Platt, 80 N. Y. 379; Van Amburg v. Baker, 81 N. Y. 46), and in reviewing these authorities, Judge Danforth, in Kirkland v. Kille, 99 N. Y. 390-395, takes occasion to formulate the result of his investigation, as follows, viz.: “That when the condition of the company is such that the end and object for which it was formed are destroyed, and there is neither an ability nor intention on its part at any time to further prosecute its business, it is no longer required to make the report.’’ Now, although in the case of the Shortsville Cart Company it was. made to appear in December that it had been doing business at a loss, and was consequently in a state of insolvency, it can hardly be said that the end and object for which it was formed were destroyed, for its failure to succeed may have been attributable to some mismanagement, or to some other cause, which, when removed, would put an entirely different aspect upon its affairs. Neither can it be said that the ability to continue its business did. not exist. That there was a bona fide intention on the part of its trustees to discontinue the business of manufacturing and to wind up its affairs is not to be questioned; but if, upon inaturer deliberation, or the happening of some unexpected event, the opportunity for resuming, active operations had presented itself, there was nothing to prevent them from embracing it; and in that case, if defendant’s contention is tenable, all statutory liability might be easily evaded for at least such obligations as were incurred prior to actual resumption. It is true that the answer alleges that the business was abandoned, and that nothing was done by the trustees subsequent to the meeting of December 13th, save what was necessary in order to close up the affairs of the company; but this, however, is really no more than the statement of a conclusion, but it matters not what was actually done so long as the trustees and the stockholders still had the right and the power to rescind former action, and continue the business. In this connection it is worth noting that there is a somewhat significant absence of any allegation that no meetings of the trustees were held subsequent to the one of December 13th. I am unable to discover any material difference between the facts of this case and those upon which the decision in Sanborn v. Lefferts, supra, was made to rest. In that case it is said that, in the absence of any legal dissolution of the company, the extra judicial proceedings like those which characterize the case under consideration did not affect the statutory liability of trustees to creditors. Possibly this proposition has been somewhat modified by later decisions, but practically it has been pretty well adhered to, and the fundamental principle of that case has been reiterated very recently by the court of appeals. Bank v. Lamon, 130 N. Y. 366; 41 St. Rep. 684. Upon well sustained and oft repeated authority it would seem that this court has not alternative in the matter, and the demurrer is therefore sustained, with leave to the defendant in each case -to amend his answer within twenty days upon payment of the costs of this issue of fact; but in case the defendant does not elect to amend his answer the costs of this issue may abide the event of the issue of fact.


author: Ehrlich, C. J.

text:
    Moses Hertz, Resp’t, v. Clara Minzesheimer, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order directing a new trial.

      Joel M. Marx, for app’lt; Langbein Bros. & Langbein, for resp’t
   Ehrlich, C. J.

The action was for brokerage, and the contention narrowed down to the question whether the defendant was to pay the plaintiff $500, or one-half of 1 per cent, of the price received by the defendant, which latter sum, amounting to $157.50, defendant paid to the plaintiff, who received the same, and claimed it to be on account of the $500. The evidence in conflicting, and the jury, under a clear and impartial charge, found for the plaintiff. We find no reason to disturb the verdict, and the judgment entered thereon must be affirmSd, with costs.


text:
    Meyer Vessell, App’lt, v. Charles Marx, Resp’t.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Trial—Direction of verdict.
    The court cannot, upon dismissing an action for want of prosecution, direct judgment on a counterclaim, which is denied by the reply.
    Appeal from an order dismissing the action and directing a verdict for defendant.

      Davis & Kaufman, for app’lt; L. K Miller, for resp’t.
   Ehrlich, C. J.

While the justice below had the right to dismiss the plaintiff’s action for want of prosecution, he had no power to direct judgment for the amount of the counterclaim pleaded by the defendant. The plaintiff had replied to the answer, putting the counterclaim in issue, and the defendant, by pleading a counterclaim, made himself an actor, and was bound to bring the action to trial himself, if he desired to dispose of it. Arnal v. Rahlff, 4 Law Bul. 3. True, the court, in the order appealed from, granted the relief stated, “unless plaintiff or his attorneys, within three days after service of this order, consent in writing that the defendant may within six days thereafter serve an amended answer, without said counterclaim, and without prejudice to bring a separate action thereon .in any court of this city, and, if plaintiff so consents, then that motion be denied, without costs.” If the plaintiff had consented to this condition, all might have been well. But the judge could not punish a failure to consent by awarding a judgment on a contested counterclaim, the existence and amount of which were in dispute. Such disposition is unwarranted by any rule of practice.. The plaintiff was entitled to his day in court on the counterclaim, and had the constitutional right to its disposition by a jury, and he has been deprived of this substantial right because he failed to comply with a condition he was under no obligation to assent to. For these reasons the order appealed from must be reversed, with cost.

All concur.


author: Fitzsimons, J.

text:
    Edward Burns, Resp’t, v. Augustin Walsh, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Pleadings—Amendment.
    Where evidence, not within the issues, is admitted without objection, the complaint may be amended on the trial so as to conform to the proof.
    Appeal from a judgment in favor of plaintiff.

      M. J. Scanlan, for app’lt; H. M. Eitchings, for appellee.
   Fitzsimons, J.

The plaintiff, an engineer, claimed that he was hired by the defendant to perform services as an engineer at a salary of $100, out of which he should pay $20 per month to an assistant. The defendant claimed that he should have hired, under his agreement, two assistants, for $40 per month, leaving him a balance of $60 for his services. This issue of fact was submitted to the jury, and they decided in favor of the plaintiff, which finding, we find, is amply sustained by the testimony. The plaintiff’s testimony showed that he was not paid for a month’s services, and that he hired an extra boy, to whom he paid $81; but he only claimed $145, for' which a verdict was rendered in his favor. Although the complaint was for services rendered, and the testimony showed that for that claim the plaintiff was only entitled to $80, yet testimony was admitted, without objection, showing that plaintiff had expended $81 for the extra boy’s hire. The trial justice had a right, therefore, to amend the pleadings so as to conform to the proof, and he committed no error in so doing. The entire evidence, taken together, shows the usual contradictions ; the plaintiff contradicting the defendant, and vice versa. It was therefore the duty of the jury to select the side which they credited. They did so, by believing the plaintiff’s evidence, and decided accordingly. We find no error in the admission or exclusion of evidence, and the judgment must be affirmed, with costs.

All concur.


text:
    Richard H. Casey, App’lt, v. Walter H. Stewart et al., Impleaded, etc., Resp’ts.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Bills and notes—Indorser.
    The payee of a note must, before he can recover thereon against an indorser, overcome the presumption that he was intended to be the first indorser.

      Appeal from a judgment dismissing the complaint.

      P. Chauncey Anderson, for app’lt; William Erbie, for resp’t Stewart; James Flynn, for resp’t Payne.
   Ehrlich, C. J.

The action was upon a promissory note made by the Cosmopolitan Club to the order of the plaintiff, and indorsed by the defendants. The note, upon its face, imported that the plaintiff was the payee, and presumptively was to become the first indorser. In order to overcome that presumption, and make the defendants first indorsers, it was necessary to show that they indorsed the note under circumstances which negatived the legal presumption. This he failed to do, and the trial judge properly dismissed the complaint. We find no error requiring anew trial, and the judgment must be affirmed, with costs.

All concur.


text:
    Alfred C. Carpenter, Resp’t, v. Edwin R. Leavitt, App’lt

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Evidence—Opinion.
    In an action for services, a witness cannot be asked as to wbat is the reasonable value of the services as testified to by plaintiff.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Charles W. Broolce, for app’lt; B. Ij. Winters, for resp’t.
   Ehrlich, C. J.

The action was for services as a medical expert and physician, and one question litigated was whether the services were performed on the personal responsibility of the defendant or on the credit of another for whom the defendant was acting. This was fairly submitted to the jury, and. they found from the evidence that the promise of the defendant was made by him personally, and on his own behalf. Another question in the case is the value of the plaintiff’s services, and on this subject the testimony is also conflicting. The plaintiff called Dr. Morehead in rebuttal, and asked him this question : “ What do you say is the reasonable value of these services as you have heard. Dr. Carpenter testify to them,—examining a woman, making several examinations, going to other physicians, and giving a history of the case, studying up the history and nature of the injuries, preparatory to testifying as an expert, attending in 'court four days testifying as an expert ? ” This evidence was objected to by the defendant upon the ground that it did not appear that the witness had heard the testimony of ’the plaintiff, and upon the further ground that it was incompetent, irrelevant, and immaterial. The objection was overruled. We think this was error, for it permitted the witness to assume for himself from the testimony of the plaintiff the facts upon which he based his opinion, without informing the jury what be supposed or believed those facts to be. Connelly v. Man. R. R. Co., 39 St. Rep. 561; 15 N. Y. Supp. 176; Uransky v. D. D., E. B. & B. R. R. Co., 57 St. Rep. 543; 13 N. Y. Supp. 670; See, also, People v. McElvaine, 121 N. Y. 250; 30 St. Rep. 997; People v. Smiler, 125 N. Y. 717; 35 St. Rep. 1; Gregory v. N. Y., L. E. & W. R. R. Co., 28 St. Rep. 726; 8 N. Y. Supp. 525. This is rendered more objectionable by the fact that there was nothing in the case tending to show that the witness had heard the testimony of the plaintiff.

For this reason the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: Ehrlich, O. J.

text:
    David Crounse, App’lt, v. Alfred Schrimpton & Sons, Limited, Resp’t.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Sale—Right op purchaser.
    Where the purchaser has paid a judgment recovered by the vendor for the purchase price of goods, the latter is under obligation either to deliver them or to tell where they are, so that the purchaser can get possession.
    Appeal from a judgment dismissing the complaint.

      I K Miller, for app’lt; C. E. Miller, for resp’t.
   Ehrlich, O. J.

The complaint alleges that the defendant, a corporation, entered into an agreement whereby it agreed to sell and deliver to the plaintiff, at 601 Tenth avenue, three great gross papers of pins, for which the plaintiff was to pay $162; that .the plaintiff paid for the pins; and that the defendant, after demand, refused to deliver them, or return the money. The defendant admits the agreement of sale, and sets up that it delivered the pins to Dunlap’s Express Company for delivery to the plaintiff; that the express company delivered the pins at the store of the plaintiff, but the latter refused to receive them, which goods, the defendant believes, are now held by the Dunlap Express Company, subject to the plaintiff’s order. For a further defense, the defendant alleges that, in an action brought in the first judicial district court by it against the plaintiff, the defendant, on May 23, 1893, recovered judgment against the plaintiff for the purchase price of the pins. Upon the trial of this action the .judgment of the first judicial district court was admitted in evidence, and it was also conceded that it had been fully paid and satisfied. It also appeared in evidence that, after paying the judgment, the plaintiff heard nothing from the defendant about the pins; that on June 14,1894, he went to the defendant’s place of business, saw its manager, and asked him to tell him where the pins were, and that the manager refused to give him this information. At the conclusion of the testimony, defendant’s attorney moved that the complaint be dismissed, whereupon the court directed the jury to find a verdict for the defendant, to which direction plaintiff’s counsel excepted.. "We think this was error. The judgment in the first judicial district court simply established that the defendant, having tendered the pins to the plaintiff, was entitled to the purchase price. When the plaintiff paid that judgment, the tide to the pins became vested in him. He was entitled to their possession, and the defendant was under an obligation either to deliver them to him, or to tell him where they were, so that he could get possession of his property. The motion to dismiss pointed out'no specific failure of plaintiff’s proof, and it was error to direct a verdict in favor of the defendant. The plaintiff made out a case calling for some explanation from the defendant. None was offered.

For these reasons, the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    Abraham J. Pearl, Resp’t, v. Adolph Raduziner, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)
    Bill and notes—Indorser.
    In an action by payee against indorser, proof that plaintiff sold, but refused to deliver, goods until defendant indorsed the note given for the price, is sufficient to overcome the presumption that plaintiff intended to become the first indorser.
    Appeal from a judgment in favor of plaintiff.

      A. H. Berriclc, for app’lt; S. J. Frankenstein, for resp’t.
   Ehrlich, C. J.

The action is on three promissory notes made by Julia Raduziner to the order of the plaintiff, and indorsed by the defendant, Adolph Raduziner, the husband of the maker. The action is ostensibly against the said Julia Raduziner and Adolph Raduziner. The latter alone defended. The complaint alleges, and on the trial the plaintiff proved, that the notes were given for goods sold to Julia Raduziner, and that the plaintiff refused to deliver up the property until Adolph Raduziner, her husband, indorsed the obligations. Thus it was clearly made to appear that the purpose of the indorsement was to give credit to the maker, and that the plaintiff, although nominally the payee in the notes, was in fact and in law a second indorser ; Adolph Raduziner becoming the first indorser, primarily liable thereon. The fact that the plaintiff may have transferred the notes to another is of no consequence, for they were returned to him before suit was brought, and his former title reinstated. It was not necessary to the cause of action to allege such retransfer, because the transaction was in legal effect the same as if no transfer had ever been made by the plaintiff. The judgment is right, and must be affirmed, with costs.


author: Newburger, J.

text:
    Robert A. Tucker, Resp’t, v. Pennsylvania Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Negligence—Carriers.
    The mere fact that the shipping clerk erases from the shipping receipt the words “Refrigerator car,” and stamps thereon the words “ Not to be loaded in refrigerator car,” will not operate to exempt the company from liability for loss occasioned by its own negligence.
    Appeal from a judgment in favor of plaintiff.
    Robinson, Bright, Biddle & Ward, for app’lt; Charles Caldwell, for resp’t.
   Newburger, J.

On the 2d day of December, 1890, the plain-i tiff’s drayman delivered 40 boxes of lemons to the defendant’s receiving clerk, to be transported to Milwaukee, and tendered a shipping receipt already filled out for signature. The plaintiff had stamped on the face of the shipping receipt the words “ Refrigerator car.” The defendant’s receiving clerk canceled the words “ Refrigerator car,” and stamped on the face of the receipt the words, “Not to be loaded in refrigerator car,” and signed it. The lemons were put in the ordinary box cars, and thereby became frosted, frozen, and greatly deteriorated in value. On the date of shipment the testimony showed the weather was very cold, the temperature ranging from 28 to 19 deg. The plaintiff'and a number of fruit dealers testified that it would not be safe or prudent to load or transport in a box car lemons, when the temperature was below freezing point, for transportation from New York to Pittsburgh. The trial justice submitted the question of negligence to the jury, who returned a verdict for the plaintiff; and upon the judgment entered upon such verdict, and the order denying the defendant’s motion for a new trial, this appeal is taken.

The trial justice properly submitted the question of the defendant’s negligence to the jury to determine. The mere fact that the shipping clerk had erased the words “Refrigerator car ” did not operate to exempt the defendant from liability for loss occasioned by its own negligence. The defendant was bound to exercise ordinary care in the shipment and transportation of the fruit. The testimony clearly showed that the defendant was guilty of negligence in shipping the fruit in the manner it did, and as this is the only question raised on the appeal the judgment must be affirmed, with costs.

All concur.


text:
    Louis Roessel et al., Resp’ts, v. Robert Rosenberg et al., App’lts.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Pleading—Amendment.
    In an action against the sureties of the sheriff in a retaking bond, who were substitutéd for him, the complaint cannot be amended so as to change the cause of action from replevin to conversion.
    Appeal from an order granting leave to plaintiffs to amend the complaint.

      Blumenstiel & Hirsch, for app’lts ; F. A. Thomson, for resp’ts.
   Newburger, J.

This is an appeal from an order made herein, granting leave to the plaintiffs to amend their complaint. The action was instituted against the sheriff of the city and county of New York, and was in replevin, to recover possession of certain personal property upon which the sheriff had levied under certain executions. By an order subsequently made, the present defendants were substituted in the place of the sheriff as defendants in the suit, by reason of having been the sureties of the sheriff in this action, upon an undertaking to retain the possession of the chattels. The bond was not a general indemnity bond, but was the usual retaking bond, which by its terms, limited the liability of the sureties to a return of the chattels replevied, or their value. The order appealed from changed the cause of action from replevin to conversion. While the court has the power to make the change, it has been repeatedly held that it should only be done in the furtherance of justice and in a perfectly plain case. The defendants in this case were substituted after the form of the action had been designated as in replevin. The defendants, it must be assumed, knew their liability, and therefore had a perfect right to rely upon that fact. The cases cited by counsel for the respondents were cases in which the defendants participated in the original wrong, and was evidenced by the bond of indemnity which authorized the sheriff to consummate the original wrong by sale and conversion of plaintiffs’ property. No' such state of affairs exists in this case, and the order appealed from must be reversed, with costs, and the motion for leave to serve an amended complaint denied.

All concur.


text:
    Martha Kaufman, Resp’t, v. People’s Cold-Storage and Warehouse Company et al., App’lts.

      (New York City Court, General Term,

      Filed October 23, 1894)

    Trial—Verdict.
    A verdict against one of two wrongdoers, united as defendants, is not irregular for the reason that the jury did not consider the liability of the other defendant.
    Appeal from an order, denying a motion to set aside the verdict as irregular, or to dismiss the complaint.

      Parsons, Shepard & Ogden, for app’lts; L. J. Morrison, for resp’t.
   Ehrlich, C. J.

The action is against the People’s Cold-Storage & Warehouse Company and D. Percy Morgan to recover the value of property stored with said warehouse company in April, 1891. The theory of the action is that the warehouse company, after the bailment, and about July 1, 1892, surrendered possession of the warehouse where the goods were stored, together with the possession of said goods, to the defendant D. Percy Morgan, who at the time of the loss was in possession of the warehouse and property, the complaint so alleging. Both defendants answered the complaint, and at the trial the jury rendered a verdict against the defendant Morgan for $325, the foreman saying in answer to a question that the jury had not taken into account the People’s Cold-Storage & Warehouse Company. After the trial of the action, which was held on February 15, 1898, the defendants moved, upon notice of motion, to set aside the verdict as irregular, or to dismiss the complaint as against the People’s Cold-Storage & Warehousé Company, and this motion was properly denied. The defendants were severally and not jointly liable, each being responsible for any injury occurring while in possession and control of the property, so that there was no irregularity in the verdict as against Morgan. The judge could not, seven days after the trial was concluded, dismiss the complaint as to the other defendant, although he might have done so at the trial.

For these reasons we think the order appealed from should be affirmed, with costs.

All concur.


text:
    Ralph C. Moser et al., Resp’ts, v. Providence Washington Insurance Company, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Insurance—Marine—Forfeiture.
    A policy of marine-insurance is not avoided by a mere agreement, which was abandoned before the commencement of the trip, to carry goods in violation of its terms.
    Appeal from a judgment in favor of plaintiff.

      Carpenter & Mosher, for app’lt; Hyland & Zabrishie, for resp’ts.
   Fitzsimons, J.

The plaintiffs insured in the defendant company their canal boat the A. D. Barber for the period of one year, commencing March 13, 1893 : the boat to be confined to the general freighting business in the navigation of certain rivers and canals mentioned in the policy. The plaintiffs, desiring to carry a cargo of iron boring and turning to Baltimore, which they could not do under the policy, applied to the defendant for the privilege of doing so, which was granted, as follows: “Privilege of present trip New York to Baltimore and return to New York, with not exceeding 150 tons cargo on board either way.” Under the policy issued by the defendants, the plaintiffs had the right to carry any number of tons of freight within the waters named therein. The freight that plaintiffs might carry to Baltimore was limited in the privilege just mentioned to 150 tons. When the plaintiffs read said limitation, they called upon the defendant, and claim that they stated that, if the limitation was not increased to 250 tons, they would abandon the proposed trip to Baltimore, and discharge the cargo; that they would not let their boat be moved until the policy was fixed. From this statement it would appear that plaintiffs had abandoned the proposed trip to Baltimore, which they, of course, had a right to do. They then might have discharged their cargo, or have transported it to any place within the limits prescribed by their policy, or allowed it to remain on board their boat until they found it possible to have the limit of 150 tons increased as they desired, and then have discharged it; and, if this testimony has not been contradicted, the •direction of the learned trial justice to the jury to find a verdict in plaintiffs’ favor was right. The mere faet that plaintiffs agreed to carry to a point outside the limits of their policy, and contrary thereto, did not nullify the policy, even though they actually accepted freight in excess of their privilege under the policy, and in pursuance of such agreement, providing they elected not to carry out such contract before the commencement of the trip, which is their contention herein. We find no contradiction of the plaintiffs’ testimony just related, in the record submitted. In fact, the defendant’s agent testifies that, when he refused to increase the limit to 250 tons, one of the plaintiffs said, “ I will wait until Monday morning to decide whether to take out 100 tons, or go uninsured,” clearly showing that the plaintiffs did not intend to accept the privilege of the trip to Baltimore until Monday morning. Before that time the boat was destroyed. Thus, in our judgment, the privilege was not accepted, and never became operative. Therefore, the trial justice was right in directing a verdict in plaintiffs’ favor, the policy never having been avoided.

Judgment is affirmed, with costs.


author: Fitzsimons; J.

text:
    Herman G. Goldsmith, Resp’t, v. Nathan J. Newwitter, App’lt.

      (New York City Court, General Term,

      Filed October 23, 1894.)

    Evidence—Parol—Custom.
    In an action for services, plaintiff cannot, without establishing the existence of the custom, testify as to the usual compensation according to the custom of the business.
    Appeal from a judgment in favor of the plaintiff.

      Hess, Townsend & Me Olelland, for app’lt; A. Boihschild, for resp’t.
   Fitzsimons; J.

The plaintiff, a dealer in diamonds, was requested by the defendant, in conjunction with two other persons, to appraise certain diamonds. They did so, and presented their bills for the value of such service to-defendant for payment, each, one claiming one per cent, of the value of such appraised diamonds as the value of his services. . The claims of the. other two appraisers -were assigned to plaintiff, and this action embraces all such claims for services as were rendered by said three appraisers, and a judgment amounting to $446.39 was rendered in favor of the plaintiff. The plaintiff was required to prove upon the trial the value of the services rendered by himself and his colaborers, which he proceeded to do by answering the following question : <f Q. What is the usual compensation allowed, to appraisers who appraise goods, according to the custom of jewelers and the diamond business ? ” Counsel for the defendant objected to said question, upon the ground that the plaintiff had not laid the proper foundation for the question. The objection was overruled, and exception duly taken. The witness answered: “ A. Always one per cent.” In my opinion it was error for the trial justice to overrule the defendant’s objection to said question. No question preceded said question which justified it. To entitle plaintiff to have an answer to any such question, it was necessary for him to show that it was an habitual, general, well-established and continued usage in his business to charge the fee which he claimed, so that' all persons having to do with a transaction like the one herein sued upon might reasonably be said to have had knowledge of such usage, and thereby be bound by the same. Such a usage is called a “ custom." The plaintiff made no attempt or offer to submit such evidence. He merely gave his bold conclusion or opinion, as above relatedand, therefore, it was proper for the defendant’s counsel to make the objection which he did. It does not appear in evidence that the plaintiff ever before acted as an appraiser, or that he ever knew or heard of any other person having acted in such capacity, or that he ever heard from any person the fees or charges that were likely to be made for such services, for aught ■ that the evidence discloses. It must, therefore, be apparent that his opinion was not based upon his knowledge or experience, but is the mere expression of his notion of what he ought to receive for the services rendered by himself and the other appraisers.

For this error the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide event.

All concur.


author: Peckkam, J.

text:
    Bank of New York National Banking Association, App’lt, v. American Dock & Trust Company, Resp't.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Principal and agent—Authority.
    A general power or authority, given to an agent to do an act in behalf of his principal, does not extend to a case where the agent is himself the other party.
    2. Evidence—Declarations—Principal and agent.
    The declarations of an agent are admissible against his principal only when he is acting in the affairs of his principal, and within the scope of his actual or apparent authority.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon ■ an order, which overruled plaintiff’s exceptions and directed judgment in favor of defendant, dismissing the complaint. '

      John B. Whiting, for app’lt; Thaddeus D. Kenneson, for r.esp’t.

      Affirming, 53 St. Rep. 905.

   Peckkam, J.

The defendant herein was authprized by its charter to receive goods for storage and issue warehouse receipts, which were made negotiable and transferable by indorsement” and delivery, and any holder thereof was to be taken to be the owner or pledgee of the goods mentioned in the receipt for any advance or credits on the same, subject, however, to charges for storage. When goods were received it became necessary for some one to sign and deliver the warehouse receipt, and that duty was provided for in a by-law or resolution of the company, which was introduced in evidence. It provided that after the date of the directors’ meeting at which it was adopted (August 1, 1890), the warehouse receipts, until otherwise directed, should be signed by either the president or treasurer. At the time of the transaction in question, M. W.' Stone was president of the company and E H. Pouch was treasurer. In November, 1890, Mr. Stone went to the plaintiff and sought and obtained a personal loan, for which he gave his own note, and as collateral security for its payment he gave a warehouse receipt purporting to be issued by the defendant, the material portion of which is as follows : ' '

“New York, Nov. 4, 1890.

“ Received on storage at the ‘ American Docks ’ for account of M. W. Stone, one hundred and sixty-two bales of cotton, marked Gr B, subject to the order of himself, on payment of the charges accrued thereon and surrender of this receipt.

“M. W. Stone,

“ President.” •

Indorsed upon this receipt was the following: “ The property mentioned below is hereby released from this receipt for delivery from warehouse. M. W. Stone.”

The officers of the plaintiff with whom the loan was effected knew at the time that the Stone who obtained the loan and the Stone who was president of the defendant were one and the same-individual, and they knew that the transaction as to the loan was a personal - one with Mr. Stone and that the defendant had nothing to do with it. The plaintiff made the loan upon the faith of the collateral security furnished by the receipt. The note was-not paid at its maturity, and when demand was subsequently made by plaintiff upon defendant for the cotton mentioned in the-receipt, it appeared that there had never been any cotton deposited with the defendant and that the receipt in that respect stated a falsehood.

The defendant refused to deliver any cotton, and the plaintiff' brought this action, claiming to be a bona fide holder for value of the receipt, and that the defendant was bound to deliver to it the cotton mentioned therein or else pay its value.

The officers of the plaintiff at the time of the loan had known Mr. Stone for some years, but there had never been any transactions between plaintiff and Mr. Stone as representing the defendant further than that the latter had on some few occasions come to the plaintiff’s banking house to mark off cotton which was discharged on certificates held by plaintiff for other parties, but Mr. Stone had never come there to borrow money for defendant. The plaintiff made no inquiries at the time of the loan as to the extent of the power of Mr. Stone to act for defendant and sign receipts.

The question of the liability of the defendant turns upon the construction given to the by-law or resolution above mentioned. Did it give authority to the president to sign receipts in his own case?

I think that if the president had issued a receipt similar to the one in question, except that it acknowledged the receipt of cotton from some third person, although such named person had not in fact deposited any cotton, yet in such case the defendant would have been liable because the president had general authority under the by-law to issue receipts for cotton deposited by third parties, and, therefore, when he issued a receipt where no cotton had been received, although it was a violation of his authority, and of his duty, yet the defendant -would be held responsible on account of such general authority to give receipts. This is upon the principle decided in Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 195; 8 St. Rep. 209, and cases cited. That principle is that where an agent has been clothed by his principal with power to do an act, in case of the existing of some fact peculiarly within the knowledge of the agent, and where the doing of the act is in itself a representation of the existence ofjj that fact, the principal is estopped from denying its existence as" against third parties, dealing with the agent in good faith and in reliance upon the representation.

I also think that if the by-law clothed Mr. Stone, the president, with general authority to issue receipts to himself for cotton which he actually deposited, if' with such authority he issued a receipt where he had not in fact deposited any cotton, the defendant would be liable to respond to a bona fide holder for value of such receipt. These two propositions I do not understand the defendant to dispute, or at least he does not regard them as antagonistic to his argument.

We come, then, to the consideration of the proper construction of the by-law. In the light of the general rules of law upon the subject of principal and agent, we are of the opinion that the bylaw or resolution in question ought not to be construed as clothing either the president or the treasurer with any authority to issue receipts to himself for cotton which in truth had been deposited by him. It is an acknowledged principle of the law of agency^ that a general power or authority given to the agent to do an act in behalf of the principal, does not extend to a case where it appears that the agent himself is the person interested on the other side.

If such a power is intended to be given it must be expressed in language so plain that no other interpretation, can' rationally be given it, for it is against the general law of reason that an agent should be intrusted with power to act for his principal and for himself at the same time. Claflin v. Farmers' & C. Bank, 25 N. Y. 293; Pratt v. Dwelling H. M. Fire Ins. Co., 130 id. 206-216; 41 St. Rep. 303; Neuendorf v. World M. Ins. Co., 69 N. Y. 389; Manhattan I. Ins. Co. v. Forty-second St. & G. St. F. R. R. Co., 139 N. Y. 146; 54 St. Rep. 474. The by-law is general in its terms and could be fully carried out to its fair and legitimate purpose by excluding from its meaning the ease of either officer acting in his own personal matter. The case of Titus v. Great Western Turnpike Co., 61 N. Y. 237, is unlike this case. The learned chief commissioner points out in his opinion what the difference is between an agent acting in matters for a principal in which he is himself the other party, and the mere act of an officer signing the scrip issued by a corporation where he is himself the owner of such scrip. The by-law in that case provided that the scrip should be signed by both the president and the treasurer, and the president was by the charter necessarily a stockholder. The case was one in which such an officer either had to go without any evidence of his ownership of stock except what the books might show, or else he was to be permitted to sign the scrip. Upon the special facts in that case the decision held that the president and the treasurer had the right to sign the scrip owned by and issued to themselves. -

Nor is the case of The Goshen Bank v. The State, 141 N. Y. 379; 57 St. Rep. 597, an authority in point here. In that case it appeared that the cashier had power to draw drafts for his own use or payable to his own order upon the same terms that he had to draw a draft for a stranger, viz., upon payment to the bank of the amount of the draft.

When the cashier issued such a draft, he was acting within the scope of his apparent authority, and the very act of issuing the draft was a representation of the existence of the fact 'that the draft was paid for. And we also held, for the reasons therein stated, that there was a difference in the case of bank or cashier’s drafts from most other cases of agency.

The difference between this case and those which have been cited by the plaintiff is that in the cited cases the • terms of the authority given to the agent were such that the agent had power, upon the existenee of a certain fact, to do the very act which was in question, whereas in this case we hold that by the true construction of the terms of the authority given to the president, he had no power in any case to sign a receipt such as is now before ns.

We are, therefore, of the opinion that' upon the evidence, as presented to the trial court, the plaintiff made out no cause of action.

It is, however, claimed upon the part of the plaintiff that there was error in the ruling of the trial judge in refusing to receive evidence of what Mr. Stone said at the time when he procured the loan, and that if he had received the evidence the plaintiff might then have made out a casé. We think the judge was right in his decision. The transaction with plaintiff was indisputably a personal one on the part of Mr. Stone. This fact was known by the officers of the plaintiff, and is also not disputed. The declarations of one who is in some matters an agent for another, can only be admissible against his principal when such agent is acting in the affairs o£ his principal, and within the scope of his actuaL or apparent authority.

This was no such case. There was no actual or apparent authority conferred upon Stone to receipt for the defendant in any case in which it appeared that he was the person who deposited the cotton; and when he was engaged in a private and personal transaction with the plaintiff, known to be such by the plaintiff, he could make no declarations which would bind the defendant. Manhattan Life Ins. Co. v. Forty-Second Street, etc., R. R. Co., 139 N. Y. and 54 St. Rep., supra, and cases cited; Moores v. Bank, 111 U. S. 156 at 164. The acts of Stone while in the bank, such as making the note, assigning the insurance policies and delivering the receipt in question, were admitted in evidence in the course of the attempt of plaintiff to make out a cause of action, and, as all the facts cannot be proved at once, ft was proper to admit these facts, which, taken with others afterwards to be shown, might make out a case against the defendant. But the claim of a right on the part of the plaintiff to prove declarations of Stone, made while he was not in the performance of any duty pertaining to his agency, and while on the contrary he was confessedly engaged in an outside and personal transaction, cannot be assented to. The cases which assert the doctrine that when the acts of the agentare admissible for the purpose of attempting to bind the principal, then his declarations made at the same time are admissible, are cases where the agent is prima facie at least acting at the time in the business of the principal. I have found no case where evidence such as was here offered has under similar circumstances been received. There was nothing to explain or to submit to the jury as to the character in which Stone acted or made declarations at this time. The plaintiff admits by its officers, who are witnesses, that it knew this was a personal -transaction and consequently there was absolutely no basis upon which to found a claim that in this transaction any declaration made by Stone could be imputed to the defendant as a declaration of its agent. The proposed evidence did not point towards the possible proof of any facts as distinguished from declarations upon which to maintain an estoppel in pais against the defendant, and if such facts were to be proved, some idea of that design should be given to the court, for upon its face the evidence was not admissible.

It is in proof that the plaintiff’s agents made no inquiries as to the right of Stone to sign the receipt, and it might perhaps be somewhat difficult to erect an estoppel in pais upon facts which plaintiff might have found out upon inquiry, but which in truth it was ignorant of at the time of the transaction.

We think the court did not err in rejecting the evidence. There is no basis upon which a recovery in this action could be sustained, and the judgments of the courts below must, therefore, be affirmed, with costs.

All concur. Judgments affirmed.