text:
    Thomas Conlon, Resp’t, v. The New York Central and Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Negligence—Fellow sebvant.
    Where the agent of a firm directs the brakeman in charge of the company’s train to uncouple the cars and offers to place them himself where he wants them, he is not a fellow servant of the brakeman, but is acting for his employers.
    2. Same—Cabe.
    While he is so acting the company is bound to exercise proper care in the management of its cars so as not to injure him.
    3. Same—Contributory.
    Where the facts are all before the jury, it is only in unusual cases that the question of contributory negligence can be taken from them.
    4. Same—Charge.
    In such case, a request on the part of the company to charge that, if the plaintiff could have put himself in a position where, by looking, he could have seen the cars coming and did not look, it was negligence on his part, is properly refused.
    5. Same—Bell or whistle. ■
    It is proper, in such case, to show that the bell "was not rung or the whistle blown or any other signal given.
    6. Same.
    Where the brakeman is in apparent charge of the train, if he uncouples the cars, moves the train back to the switch and backs it up so as to injure the plaintiff, he represents the company, and it is liable for his negligence.

      Appeal from a judgment in favor of plaintiff.

      Ashbel Green (F. L. Westbrook, of counsel), for app’lt; G. D. B. Hasbrouck, for resp’t. ■
   Putnam, J.

It is claimed by appellant that plaintiff, having directed the brakeman in charge of defendant’s train to uncouple the cars and offered to place them himself where he, plaintiff, wanted them, should be deemed a fellow servant of the brakeman and as assuming the risks incident to the business, including that of the negligence of his fellow servant or brakeman. Plaintiff’s volunteering to do the work of the employe of defendant should not impose on it a greater liability than that for which it was liable to its own servant, and. hence it was not liable for the negligence of the brakeman, if any.

We think this position is not well taken. Plaintiff at the time he was injured was a servant in the employ of Everett & Tread-well. Defendant switched two cars down to the scales. After two or three attempts it failed to place the cars on the scales, and plaintiff then, as the agent of Everett & Treadwell, received the cars from defendant on the track near the scales, and offered to place them there himself. In the transaction he acted merely for Everett & Treadwell, voluntarily receiving the cars for that firm near the scales instead of on them. Acting for Everett & Tread-well he relieved the company from doing what he might have required them to do. In spotting two cars he was not acting for defendant, but for his employers. Hence he did not occupy the same position as a fellow servant. Had he not been in the employ of Everett & Treadwell, and voluntarily offered to aid the servants of the defendant in discharging their duties, the case might have been otherwise. Then, perhaps, he would have occupied the position of a servant of defendant doing the work without compensation. Such was the case of Degg v. Midland R. W. Co., 40 Eng. L. & E., 376, and other cases cited by the learned - •counsel for appellant on this point.

We think the evidence in the case was such as to present a question of fact as to whether or not the injury to plaintiff was caused by defendant’s negligence, which was properly submitted to the jury by the learned trial judge. The plaintiff was rightfully where he was injured as an employe of Everett & Tread-well. He testifies : “ It was my business to place that car where I wanted it; it was my business to unload these cars, and to pinch the cars to accommodate myself to the elevator; I had to get it directly in front of this elevator. Q. Then your occupation required your presence on the rails ? A. Yes, sir.” The switch, through which the cars were run to the place of the accident, was placed for his employers in order to transport cars opposite their place of business. The cars were left near the scales by defendant’s servants in charge of plaintiff at the place selected by defendant for unloading them. Plaintiff was not at this place merely by license of defendant, as in the case of Nicholson v. E. R. R. Co., 41 N. Y., 523, but was rightfully there and doing a lawful act. If he had been there, however, merely by license of defendant, it was liable if it injured him by a careless or heedless act. Nicholson v. The Erie R. R. Co., supra, 532, 533.

Hence, the jury were justified, from the evidence in finding that the plaintiff received the two cars from defendant’s servant— the brakeman who appeared to have charge of the train—and was lawfully engaged in moving the same, having told the brakeman he would do so; and while plaintiff was so engaged, and a very brief period after he commenced the moving, defendant backed its cars down upon him without any signal or warning of any kind. We think the case, therefore, as to defendant’s negligence, was one properly submitted to the jury. The defendant was bound to exercise proper care in the management of its cars so as not to injure the plaintiff. Young v. N. Y. C. & H. R. R. R. Co., 13 Daly, 294; 103 N. Y., 678.

The question as to plaintiff’s contributory negligence was also properly left to the jury. All the circumstances relating to the accident were proved and raised a question of fact. We cannot determine as a legal conclusion that plaintiff, under the circumstances, was bound to watch for trains backing up against the cars where he was at work, or that it was negligence not to anticipate the approach of the train which injured him, he having notified defendant’s servant of his intention to spot the two cars. See Newson v. N. Y. C. R. R. Co., 29 N. Y., 383 ; Feeney v. L. I. R. R. Co., 116 id., 375-379 ; 26 St. Rep., 729.

Where the facts are all before the jury it is only in unusual cases that the question of contributory negligence can be taken from them. Massoth v. D. & H. C. Co., 64 N. Y., 529. There was testimony in the case from which the jury might have concluded that the plaintiff did not exercise proper care at the time of the accident; but such evidence was not so conclusive as to justify the trial court in passing on the question as one of law.

We think the court below properly instructed the jury on the question of contributory negligence. The request of the defendant to the court to charge the jury “ that if the plaintiff could have put himself in such a position where by looking he could have seen these cars coming and he did not put himself in such a position and did not look, that it was negligence upon his part,” was properly refused. If the court had been asked to instruct the jury that if plaintiff, where he was at work, by looking could have seen the cars coming and did not look, or while doing the work could so have placed himself as to have seen the cars approaching and did not do so, it possibly might have been the duty of the court so to charge. . The cases cited by appellant upon this point are those where accidents occurred to travelers crossing railroad tracks, and hence are not applicable to this case.

We think the trial judge correctly instructed the jury when requested to charge that the defendant was not required to ring a bell, and not ringing a bell was not negligence on its part. The judge remarked: “I leave it to the jury to say whether under the circumstances as proven here, the brakeman did his duty .in permitting his train to come in without giving the plaintiff any notice either by ringing the bell, blowing a whistle, or any.other signal which might have attracted his attention. I do not charge that it was their duty to ring a bell or blow a whistle. * * * * It is for the jury to say whether proper notice was given, and if they find notice ought to have been given him under the circumstances they may take into consideration the fact that the bell was not rung or other signal given.” It was a question of fact whether the defendant was negligent It was proper to show all the facts; that the bell was not rung or the whistle blown or any other signal given. These facts bear on the question of defendant’s negligence.

We also think the court did not err in that portion of his charge wherein he referred to the brakeman. Among other things he said: “ If you find that he did fail in the discharge of his duty to the plaintiff, and he represented the defendant so far as the defendant is concerned in this action, his negligence is negligence upon the part of the defendant.

The testimony in the case was such that the jury were authorized to find that the brakeman at the time in question was in fact acting as the conductor of the train that injured the plaintiff — at least that he was in charge of the train. Under defendant’s rules as sworn to by Watson he could have charge of such a train. Watson says: “The conductor instructs the brakeman that they are going to put a car on a certain siding, and the brakeman or the conductor gives the engineer a certain signal to move ahead or move backward as the case may be, and in answer to that signal the engineer moves his engine and switches the car. In answer to either the signal from the brakeman or the conductor, the brakeman when a train is operated may be either on the top of the car'or he, may be on the ground.” That the brakeman was in the apparent charge of the train was shown by the evidence. Therefore, the remarks of the trial judge to which the appellant takes exception were justified. If the brakeman uncoupled the cars and moved the train back to the switch and backed it up so as to injure the plaintiff he represented the defendant and it is liable for his negligence.

We conclude that no error was committed upon the trial and that the judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Kate A. SCAGGS, as Administratrix of the Goods, Chattels and Credits of Eleanor Downing, Deceased, App’lt, v. The President, Managers and Company of the Delaware & Hudson Canal Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Negligence—Railroad crossing.
    The raising of the gates at a railroad crossing is an assurance to the traveler of safety, as significant as though the gateman had beckoned to him or invited him to cross.
    2. Same—Contributory.
    The cases are rather exceptional where the question of contributory neg ligencc can be taken from the jury.

      3. Sam®.
    The fact of the company’s occupying the highway with its engine is evidence of negligence on its part sufficient to carry the case to the
    jury-
    4. Same.
    Where the evidence shows that the company left standing, on the track in a traveled highway, a dangerous machine liable at any moment to "pop oil,” and, while thé engine was so standing, raised its gates, the proof is sufficient to warrant the submission of the question of negligence to the jury.
    5. Sam®—Bight o® action.
    If a negligent act of the company occasioned a horse to become frightened and run away and cause the death of a person, an action can be maintained therefor.
    Appeal from a judgment in favor of the defendant.

      Jesse Stiles (J. W. Verbeclc, of counsel), for app’lt; Lewis E. Carr, for resp’t.
   Putnam, J.

This action was brought to recover damages for the death of plaintiff’s intestate on August 6, 1887, which, it is alleged, was caused by defendant’s negligence.

The accident occurred at the place where Division street in the village of Saratoga Springs, running . easterly and westerly, crosses defendant’s railroad track, running north and south. Deceased approached the track on the north side of Division street from the east. A train was standing on the easterly track, its engine projecting into the street about fifteen feet. The gates were down and the gateman stood on the north side of Division street, and on the east side of the track. One Priester, with a horse and wagon, came up to the crossing, also from the east. His horse was uneasy and restive. Deceased and Priestly remained about twenty minutes at the crossing, she standing quite near the gateman. The latter opened the gate high enough for deceased to pass and looked at her. She then started to cross diagonally.' When in front of the engine the gate-tender raised the gate higher so that Priester could pass, and he started, deceased at the time being in front of the engine. As Priester’s horse started over the crossing the engine began blowing off steam, or “popping off,” and frightened the horse so that it ran against deceased, producing injuries that caused her death.

The defendant’s motion for a nonsuit was granted and judgment entered dismissing the plaintiff’s complaint. The usual questions in this class of cases as to defendant’s negligence, and the freedom of plaintiff’s intestate from contributory negligence, are presented for consideration. The question as to the contributory negligence of deceased requires no discussion or citation of authorities. The deceased, after waiting for twenty minutes at the crossing, on the gates being raised by the defendant’s servant, attempted to go over the track. The raising of the gates was an assurance to her of safety as significant as if the gateman had beckoned to her or invited her to cross. Callaghan v. D., L. & W. R. R. Co., 52 Hun, 276-9 ; 22 St. Rep., 294.

The facts were all before the trial court. There is nothing appearing to indicate negligence on the part of deceased. In crossing she was compelled to pass in front of the engine and into the travelled part of the street. Being there she could as well turn to the southerly as to the northerly side of the highway. Under the circumstances it cannot be held, as matter of law, that deceased was guilty of contributory negligence. As has been often held, the cases are rather exceptional where the question of contributory negligence can be taken from the jury, and this is clearly not one of'those unusual cases.

The real question for consideration is, whether the plaintiff succeeded in showing a negligent and wrongful act on the part of the defendant which caused the death of plaintiff’s intestate.

It is held in Borst v The Lake Shore & Michigan Southern R. R. Co., 4 Hun, 346-50 ; 66 N. Y., 639, a case in some regards similar to this : “ That the very position of this engine in the public highway, and the occupation and blocking up of said highway by it, was of itself an act of negligence.” In the case under consideration the engine remained in the highway twenty minutes before the gates were raised, and when the gates were so raised plaintiff, having to cross the tracks, necessarily was compelled to go close to the engine. Under the authority above cited, the fact of defendant’s occupying the highway with its engine would seem evidence of negligence on the part of defendant sufficient to carry the case to the jury.

It is suggested by the learned counsel for defendant that there is no evidence that the standing of the engine in the street caused the accident. That it was the escaping of steam; the popping off of the engine that frightened the horse. That this popping off was purely the result of a mechanical operation. That it was shown that when an engine stands a little while steam accumulates, and when it reaches a certain point the automatic safety valve “pops,” and that is what caused the sound. In other words, an engine standing is liable from time to time to have this escape of steam, and make the kind of noise that frightened Priester’s horse.

We think the facts shown in this case, the raising of the gate by defendant’s servant which, as we have seen, was an assurance of safety to Priester and deceased, its engine at the time projecting fifteen feet into the highway, so that a person in crossing must pass close to it, and which engine was liable at any time to suddenly blow off steam, and make a noise calculated to frighten a horse, evidence of negligence that should have been submitted to the jury. The negligence was not in leaving a silent engine in the highway, but an engine that puffs, blows off steam and “pops.” The negligence was in leaving an engine as it ivas in the place where this one was left If the engine had been out of the highway, so that Priester’s horse had not been compelled to pass close to it, and steam was blown off, the jury could have found from the evidence that the horse would not have become unmanageable. Priester had been able to manage it for twenty minutes thirty or forty feet from the gates.

It is urged by counsel for defendant that there is no evidence showing that defendant’s train, to which the engine in question was attached, was not so long as to make the projection of the engine into the street unnecessary. If the engine was necessarily in the highway, it was for the jury to say whether it was not negligence on the part of the defendant to raise its gates, and thus invite travelers to pass over the track, knowing, as its servants did, of the liability of the engine to suddenly emit steam. See Keech v. R. W. & O. R. R. Co., 35 St. Rep., 902.

Again, whether it was necessary for the engine to remain in the highway was a question of fact under the circumstances of the case. The defendent could have detached its engine, and taken it across the street. Can it be deemed necessary to block up a traveled street in a large village for twenty minutes when in a moment the engine could have been detached and moved?

On the whole, we think that the evidence .which showed that defendant left standing on the track in a traveled highway a dangerous machine liable at any moment to “ pop off,” and thus frighten horses, and while the engine was so standing raised its gates, evidence of negligence which should have been submitted to the jury.

If a negligent act of defendant caused Priester's horse to become frightened and run' away and cause the death of plaintiff’s intestate this action can be maintained. Lowery v. Manhattan R. Co., 99 N. Y., 158.

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

Herrick, J., concurs, upon Borst v. Lake S. & M. S. R. R. Co., 4 Hun, 346.


author: Mayham, P. J.

text:
    Abby Rogers Clark, Resp’t, v. Hiram Howard et al., App’lts.

      (Supreme Court, General Tern, Third Department,

      Filed December, 1893.)

    1. Contract—Promise for benefit of third party.
    When a guarantee or promise is made to enure to the benefit oí a creditor of the principal debtor, an obligation has existed or a liability has been created against the guarantor and in favor of the principal debtor, which the latter might enforce.
    2. Same.
    When the principal debtor remains liable on the debt due to the plaintiff and there is no privity of contract between the, plaintiff and guarantor, and no debt or liability from the guarantor to the principal debtor, an action in favor of the creditor against the debtor will not lie against the guarantor.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff against the defendants.

      Charles H. Machín {Bsek Cowen of counsel), for app’lts; Kiny & Ashley, for resp’t.
   Mayham, P. J.

Frances D. Hoyt being indebted to the defendant in the sum of thirteen thousand five hundred and ten dollars and eighty-nine cents ($13,510.89), and to this plaintiff in the snm of twenty-eight hundred dollars ($2,800) and to Edward W. Davenport in the sum of twenty-five hundred dollars ($2,500), made the following agreement with the defendants: “ Agreement made and entered into this 21st day of August, 1886, by and between Frances D. Hoyt, of the city of New York, party of the first part, and Hiram Howard and Stephen C. Howard, composing the firm of Howard & Son, of Providence, E. I., and New York city, parties of the second part.

“ Whereas, the party of the first part is justly indebted to the parties of the second part in the sum of thirteen thousand five hundred and ten and 89-100 dollars, of which four thousand is represented by the endorsement by the parties of the second part of the paper of the party of first part, seven thousand four hunddred ninety-five and. 39-100 dollars thereof by the notes of the party of the first part, given to the parties of the second part for merchandise sold and delivered, six hundred dollars thereof for cash loaned and fourteen hundred and fifteen and 51-100 dollars for merchandise sold ond delivered and now "in open accounts; and the party of the first part, to secure and pay to the parties of the second part, the said indebtedness, has this- day sold, assigned, transferred and delivered to them all his stock of jewelry, book accounts, bills receivable, and fixtures in his business carried on at No. 456 Broadway, New York city, as per bill of sale this day executed and delivered to the parties of the second part.”

“And, whereas, the party of the first part is justly indebted to Mrs. Abby Eogers Clark in the sum of twenty-eight hundred dollars for money loaned, and to Edward W. Davenport the sum of twenty-five hundred dollars, for money loaned.

“Now, in consideration of the premises and the sum of one dollar paid to the party of the first part by the parties of the second part, the parties of the second part hereby agree to guarantee to the said Abby Eogers Clark and Edward W. Davenport the payment to them and each of them of the said sums of money so owing to them, as aforesaid, within five years from the date hereof, with interest.

“ In witness whereof, the parties have hereunto set their hands and seals the day and year above written.

“ Francis D. Hoyt, [l. s."

“ Howard & Soisr, [l. s/

“H. Howard,” [l. s.‘

Under this agreement the defendants took possession of the property mentioned in it, and Hoyt acted as the agent of the defendants in conducting the business for about two months, when the defendants sold out the goods and business and applied the proceeds upon the debt due from Hoyt to them.

The referee expressly finds that Hoyt did not act as the agent of the plaintiff in any of these transactions between Hoyt and defendants. After the lapse of five years from the making of the above contract between Hoyt and the defendants, the plaintiff demands payment of the amount of Hoyt’s indebtedness to her of defendants, which was refused, and thereupon the plaintiff brings this action.

The referee finds in her favor, and orders judgment against the defendant for the amount Hoyt owed her with interest.

The defendant on this appeal contends that no valid liability was created by the contract between Hoyt and them, upon which the plaintiff can maintain this action. The plaintiff took no part in the making or carrying out of the provisions of the contract between Hoyt and defendants. There was therefore no privity of contract in fact between the defendants and plaintiff. The plaintiff so far as the case discloses, never released her claim against Hoyt, or agreed to accept and look to the defendants as her debtors on the debt due her from Hoyt. Nor was there any debt due from the defendants to Hoyt which Hoyt by this contract assumed to transfer to the plaintiff in payment of her claim against him. The defendant did not become Hoyt’s debtor by the purchase of these goods, but received the same only in part extinguishment of a debt due from Hoyt to them.

There was no cause of -action created in favor of Hoyt, and no consideration moving from the plaintiff to . the defendant to uphold this guarantee in plaintiff’s favor. The contract if construed literally, was but a guaranty for the payment by Hoyt of his indebtedness to the plaintiff. I know of no principle upon which a principal debtor can maintain an action against his guarantor, because of his own fault. It is true that if the debt had been contracted on the strength of the guarantee, the creditor on default of the principal debtor, might maintain an action because then there would be a consideration of harm to the creditor, moving between the guarantor and him, which would support an action against the guarantor by the creditors.

I think, therefore, this case is clearly distinguishable from any of the cases relied upon by the learned counsel for the plaintiff upon this point.

In Lawrence v. Fox, 20 N. Y., 268, Holley loaned to Fox three dollars, and at the time of the loan, informed Fox that he owed Lawrence that amount which was due the next day, and Fox thereupon, at Holley’s request, agreed to pay the money to Lawrence, when due. ■ Here a debt was created against Fox for which Holley had a right of action at law. Not so in the case at bar, Hoyt never had a right of action at law against the defendants, and it cannot be claimed that this action can be maintained to prevent circuity of action, by compelling the defendant to pay Hoyt’s debts ; for the simple reason that defendant owed Hoyt nothing for which he could maintain an action against them.

Nor can it be said that in this case, as was said by the majority of the judges in Lawrence v. Fox, supra, that this promise was made to the plaintiff by the defendant through the medium of Hoyt as his agent, as the referee has expressly found that no agency existed.

In Smith v. Perrine, 121 N. Y., 376 ; 31 St. Rep., 294, cited by the plaintiff, the promise was by Perrine to his son and wife to pay her one-half of a debt due the son, and was upon the express ground that he owed his.son, and was made directly to the wife. It was, therefore, in fact and in principle, unlike the case at bar. In Williams v. Fitch, 18 N. Y., 546, to which our attention is called by the plaintiff, the trustee of a fund to which he would succeed in case of intestacy to prevent the making of a will of such fund to a third person promised to hold the fund for the benefit of the intended legatee, and it was held that the arrangement was made in contemplation of death by the party intending the legacy, and was equivalent to the delivering of the security in the hands of the trustee so as to take effect as a donatio causa mortis.

In Evansville Nat. Bank v. Kaufman it was held in effect that a consideration, moving between the guarantor and principal debtor, is essential to support the guarantee. Bank v. Kaufman, 93 N. Y., 273. In all these cases cited by the learned counsel for the respondent, as well as all other cases which we have been able to find upon this subject, when a guarantee or promise is made to enure to the benefit of a creditor of the principal debtor, an obligation has existed or a liability has been created against the guarantor and in favor of the principal debtor which the latter might enforce. Here, as we have seen, no such liability exists, and thus this case is distinguishable from all that line of cases relied upon by the respondent. It being clear that the defendants were not the debtors of Hoyt, and did not become so by the transfer of these goods and this business to them, in part payment of a debt due them by him, it must follow that any money which the defendants might advance either to Hoyt to pay the plaintiff, or to the plaintiff herself, on this guarantee as the case stood, would create an indebtedness from Hoyt to the defendants. Suppose Hoyt had attempted to sue defendant in an action at law upon this guarantee, could he have recovered the amount of the debt due from him to the plaintiff? Clearly not; for the reason that the moment that he recovered or received that amount of the defendants, he would have become their debtors to that amount.

In the Bradford & Cuba R. R. Co., v. N. Y., Lake Erie &W. R. R. Co., 123 N. Y., 316; 33 St. Rep., 614, Judge Peckham, in discussing a question somewhat analogous to this, says : “ Of course in the action at law, there must be proof in the case showing, in some form, and to some extent, the amount of the damages that the plaintiff has sustained by the defendant’s breach of his agreement. And it is equally plain that it must be a rare case indeed, where it can be said that a person has sustained any damages by the refusal of another to advance money which. he has agreed to advance, where the .person to whom it is to be advanced is, by the agreement, under a valid .obligation to pay back immediately.” If Hoyt could not recover, the plaintiff, as we have seen, could not, as there is no privity of contract between the plaintiff and her. The promise was not, therefore, for the benefit of the plaintiff ; but was rather a promise to advance money for the benefit of Hoyt, to pay his debt; and is, therefore, unlike, and not within, the principle of the decision of Lawrence v. Fox.

In principle it is more nearly analogous to Gernsey v. Rogers, 47 N. Y., 233. In this case, Hermans, who was the owner of lands on which Gernsey held two mortgages, and desiring to secure a sum of money to Rogers, conveyed the same to him with a parol defeasance, the deed, however, containing an assumption clause by which Rogers agreed to pay to Grernsey the amount of the prior mortgage upon the property. An action was brought by Grernsey upon this assumption clause, and it was contended that the case was within the principle of Lawrence v. Fox and Burr v. Burr, and the court of appeals, by Rapallo, held that the conveyance was but a mortgage, and after noting the difference between that case and those above referred to, says: “ Regarding the conveyance as a mortgage, the stipulation was in effect to advance to the promisee on the security of the property, to discharge prior liens, and was made for the benefit of the promisee only. If such a contract could be enforced by the creditor, who would be incidentally benefited by its performanee, every agreement by which one party should agree with another for a consideration moving from him, to become security for him to his creditors,— or to advance money to pay his debts, could be enforced by the parties whose claims were thus to be secured or paid. I do not understand any case to go this length.”

Again in Pardee v. Treat, 82 N. Y., 385, Andrews, J., in discussing the effect of an assumption clause in a deed, uses this language : “ We think the true result of the decisions upon the effect of an assumption clause in a deed is, that it can only be enforced by a lienor where in equity the debt of the grantor secured “ by the lien becomes, by the agreement between him and his grantee, who assumes the payment of the debt of the latter. On the other hand if the assumption is in aid of the grantor, upon the security of the land, and not as between them, a substitution of the liability of the grantee for that of the grantor, or in other words, if in equity as at law, the grantor remains the principal debtor, then the assumption clause is a contract between the parties to the deed alone, and the liability of the grantee, for any breach of his obligation, is to the grantor only.”

In Roe v. Barker, 82 N. Y., 432, the plaintiff contracted to sell land to H. for $1,350 payable, $300 at date of contract, and the balance in annual payments of $300 each. H. assigned this contract to the defendants in payment of a debt due them and of $300 in goods out of their store. This assignment was complied with on agreement that H. might redeem.

After payments fell due to the plaintiff on this contract he brought suit against the defendant to recover such payments. In discussing the liability of the defendant upon these facts, Finch, J., says: “ The most that can be said if we strain the evidence to its utmost limits, is that the defendant agreed to make for H. advances upon the contract which he should repay, if he was able, when he redeemed it from the defendant, and that until that time the latter held it as collateral security for their advances already made to him and such as they might therereafter make for him upon the contract.” This was, therefore, no absolute promise to pay the plaintiff at all. Ho assumption of the debt due to the vendor so as to make it the debt of the defendant.” * *• *

The case falls within the rnle declared in Cernsey v. Rogers, 47 N. Y., 239, and the transaction between H. and defendant gave no right of action to the plaintiff. Other authorities might be cited if necessary holding that when the principal debtor remains liable on the debt due the plaintiff, and there is no privity of contract between the plaintiff and guarantor, and no debt or liability existing from the guarantor to the principal debtor, that an action in favor of the creditor against the debtor will not lie against the guarantor.

We are, therefore, of the opinion that the plaintiff has not, by his complaint or proof, established a cause of action against the defendants, and that the judgment must be reversed.

Judgment reversed, referee discharged, and a new trial ordered, costs to abide the event.

Putnam, J., concurs; Herrick, J., dissenting.


text:
    Sidney E. Maders, as Receiver of the Property of William J. Whallon, Resp’t, v. William J. Whallon and William J. McAuliff, Impleaded with Eliza Whallon, Wife of said William J. Whallon, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 1, 1893.)

    1. Pleading—Amendment.
    When the amendment is made, upon the trial before the evidence is in, the court may allow an amendment by inserting an allegation material to the case. In such case, the power to amend is limited only to cases where • substantial justice is promoted by the amendment.
    3. Fraudulent conveyance—Burden.
    In either a legal or equitable action to set aside an alleged fraudulent conveyance, the burden of establishing fraud rests with the plaintiff.
    3. Same—Essentials.
    In such case, the creditor must establish that the deed was executed in bad faith, and left the grantor insolvent and without ample property to pay his existing debts and liabilities.
    This action is prosecuted to set aside a deed given by the defendant, Whallon, to the defendant, McAuliff, on the ground of fraud.

      B. Pond (JSdgar T. Brackett of counsel), for appl’ts; McLaughlin & Rowe (Chester B. McLaughlin of counsel), for resp’ts.
   Mayham, P. J.

The plaintiff brings this action as receiver of the property and effects of the defendant, Win. I. Whallon, by virtue of an appointment made in a proceeding supplemental to execution on a judgment against the defendant Whallon. The complaint alleged the recovery of two judgments against the defendant, Wm. J. Whallon, one in favor of Minnie Whallon, in the county court of Essex county, for about eighty-two dollars, which was entered and docketed in that county on the 1st of July, 1889; and one in justice’s court, in favor of Henry S. Fletcher for about thirty-six dollars, a transcript of which was filed and docketed in the Essex county clerk’s office on the 15th day of June, 1889, and than an execution was duly issued on the last mentioned judgment, which was returned wholly unsatisfied on the 5th day of August, 1889, and that after the return of such execution, proceedings supplemental to execution were instituted on the judgment which resulted in the appointment of the plaintiff as receiver, who as such duly qualified and entered upon the-discharge of his duties on the 14th day of December, 1889, which receivership was subsequently by an order of the court extended to the judgment against the defendant Wm. I. Whallon in favor of Minnie Whallon, above referred to. The complaint also alleged that, on the 23d day of November, 1888, Wm. I. Whallon was the owner in fee and in possession of two farms or pieces-of land situate in Essex county, one of 189 acres, and one 100 acres, together of the value of $6,000, free of liens or incumbrances except a mortgage of $1,050, and that on that day he made, executed and delivered to the defendant Wm. J. McAuliff a deed of conveyance of such lands, in which his wife, who is named herein as defendant, joined.

That the consideration expressed in such deed was $5,000, to secure the payment of which to the defendant, Wm. I. Whallon, the defendant McAuliff executed and delivered to him his bond for that sum, payable in annual instalments of $500 each with annual interest, and as collateral to such bond, also executed and delivered a mortgage on said lands conditioned for the payment of such sum of $5,000 and interest, which bond and mortgage the defendant, Wm. I. Whallon still owns and holds, and that no part of the same has been paid or satisfied. The complaint, charges that such conveyance of the lands therein described was made by the defendant, Wm. I. Whallon, and received and accepted by the defendant, William J. McAuliff, for the purpose and with the intent of hindering, delaying and defrauding the creditors of the defendant, William L Whallon, and that since the execution and delivery of such deed of conveyance the-defendant, William I. Whallon has continued in the possession of the lands conveyed. The relief asked for in the complaint is that the conveyance to McAuliff may be "adjudged fraudulent and void. That the defendant and each of them may be adjudged to account for the property received by them under such conveyances. That the premises may be sold to satisfy such judgments and costs, and the cost and expense of the receivership subject to the inchoate right of dower of the wife of the defendant, Wm. I. Whallon. The defendants answered separately, denying the alleged fraud. This action was once tried, and the trial resulted in a decree of foreclosure of the mortgage given by McAuliff to the defendant, William J. Whallon, which decree was reversed by this court on the ground that a decree in foreclosure was not authorized or proper under the complaint. Maders v. Whallon, 19 N. Y. Sup,, 638; 46 St. Rep., 217.

On this trial the objection was made at the opening of case, that the complaint failed to state a cause of action and should for that reason be dismissed. The plaintiff thereupon moved to-amend the complaint by inserting therein after the words “ has no property,” the words “and had no other property subject to levy and sale on execution at the time of or since the date of said conveyance, or since the rendition of the judgment.” The defendant duly objected to the allowance of the amendment, and the court overruled the objection, and allowed the amendment, to which the defendants excepted. It is now insisted that the complaint was not in fact amended as the amendment does not appear in the complaint as incorporated in the judgment-roll, and that the case, on this appeal must be treated as if no amendment had been allowed by the trial judge. We cannot agree with the learned counsel in this contention, but think we must treat the case the same as though the proposed amendment had been actually written in the complaint.

But it is further insisted that the court at the trial had no power or authority to allow the amendment at the trial, as the original complaint contained no cause of action, and the amendment, therefore, introduced into it a new cause of action, which it is insisted can only be done on a motion before trial. Section 723 of the Code of Civil Procedure, provides that, “ The court may, upon the trial * * * amend any process pleading or other proceeding * * * by inserting an allegation material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleadings of other proceedings to the facts proved.” This section seems to provide for an amendment upon the trial in two classes: First. When the amendment is made before the evidence is in, the court may allow an amendment “ by inserting an allegation material to the case.” Second. After the evidence is taken, “ when the amendment does not change substantially the claim or defense, by conforming the pleadings to the facts proved.” In the first case the power to amend is only limited to cases where substantial justice is promoted by the amendment; the second, has the farther limitation, that it shall “ not change substantially the claim or defense.” The disjunctive or, between these two classes, seems to indicate that they are governed by different rules. In the case at bar, the amendment was made before the evidence was offered or taken. The cases cited by the appellant do not conflict with this interpretation of § 723 of the Code.

In Barnes v. Seligman, 55 Hun, 349; 29 St. Rep., 68, evidence 'was received under objection that it was not authorized by the pleadings, and it was held that the pleadings could not be amended after the trial to conform to the proof.

In Rutly v. Consolidated Fruit Jar Co., 52 Hun, 492; 24 St. Rep., 640, it was held that pleadings cannot be conformed to the proof, when objection is taken in due form to the insufficiency of the complaint, to authorize the proof, and that only when the-proof was received without objection that an amendment at the close of the trial, conforming the pleadings to the proofs, was proper.

In Shaw v. Bryant, 65 Hun, 57; 47 St. Rep., 227, the referee allowed an amendment on the trial changing the complaint from one in equity to an action at common law, charging the defendant with a personal liability, and the court on appeal held that such an amendment was not authorized under § 723 of the Code of Civil Procedure.

The difference between that case and this is that in that case the amendment changed the entire nature of the action, whereas in this the amendment only “ inserted an allegation material to the case.” In that case it does not appear at what precise stage of the trial the amendment was made, but it does appear that it was after much time had been spent in the trial. I am, therefore, inclined to the opinion that the court did not transcend its powers in granting this amendment at the commencement of the trial, and that such amendment was unauthorized under § 723 of the Code. But it is insisted by the appellant, even with the amendment as allowed and inserted in the complaint, it did not state a cause of action, authorizing the setting aside of this deed as fraudulent, inasmuch as the complaint upon its face shows that the defendant on the sale of his farm took back to himself a mortgage which represented the value of his farm in another form, which was equally available to the creditors of the defendant, William I. Whallon, and to which in a proper action resort might be had for the collection of his debts.

By the provisions of § 2468 of the Code the property of the judgment debtor vests in the receiver from the time of filing the order of appointing him, except in certain cases enumerated in that section, which have no application to the plaintiff here. He was, therefore, from the time of his appointment the owner of the mortgage and personal property of the defendant, Wm. I Whallon for the purposes of his trust in satisfying the judgment in the cases in which he was receiver, or to which his receivership was extended, and as each of said judgments exceeded twenty-five dollars. They were subject to the equitable power of the court for its enforcement. Mallory v. Norton, 21 Barb., 424; Marsh v. Benson, 34 N. Y., 358; Sarsfield v. Van Vaughner, 38 Barb., 444.

Upon the facts alleged in the complaint as amended with the concession therein that the defendant Whallon, after the sale of the farms, was the owner and in possession of the $5,000 mortgage on property worth $6,000, on which there was a prior mortgage and incumbrance of only $1,050, can it be successfully maintained that this farm was sold by Whallon and purchased by McAuliff for the purpose of hindering, delaying and defrauding the creditors of Whallon ?

To determine this question two methods were open to the plaintiff. First. To proceed by execution on the judgment in his hands as receiver and sell the real estate conveyed by Whallon, and on the perfecting of his title under such sale, bring his action of ejectment at law upon the assumption that this sale was fraudulent and that the purchaser took no title as against the creditors of the grantor. Smith v. Reid, 134 N. Y., 576-77 ; 48 St. Rep., 156. In that case the court say: “ A judgment creditor cannot be deprived of his legal right to enforce collection of his judgment against the lands of his debtor by a fraudulent conveyance thereof prior to the entry of the judgment; nor can he by such conveyance be forced to pursue an equitable remedy for the collection of his debt instead of a legal one, and the whole current of authorities in this state is to the effect that notwithstanding the fraudulent conveyance, the judgment creditor may sell the land under execution upon his judgment and the purchaser may impeach the conveyance of the land in an action at law to recover the possession, or if he can gain possession defend the title thus acquired against the fraudulent grantee or those claiming under him.”

Of course in such a proceeding the judgment creditor or his representative assumes the risk of being able to establish the fraud; but so long as the title remains in the fraudulent grantee and before he has conveyed to a bona fide purchaser the whole proceeding would be at law, in which tribunal the judgment creditor, or his representative would have an adequate remedy.

The court in the case last cited in further discussing this subject say: — But while the title remains in the fraudulent grantee the lien of the judgment exists, and may be forced against the land with the same effect as if the conveyance had not been made. As against the creditors, the conveyance, while the fraudulent grantee holds the title, is a nullity.”

The other method open to the plaintiff to test the validity of this conveyance, is the equitable action resorted to here, of setting aside the conveyance, and thus removing from the legal title of the grantor and .judgment debtor the cloud created by the alleged fraudulent conveyance. In either of these proceedings, however, the burden of establishing fraud, rests with the plaintiff. He must shpw satisfactorily that the conveyance was made and accepted with the purpose and intent of hindering, delaying and defrauding the creditors of the grantor; that the deed was executed in bad faith, and left the grantor insolvent and. without ample property to pay his existing debts and liabilities. Kain v. Larkin, 131 N. Y., 300; 43 St. Rep., 197.

In this case the complaint fails to allege that the defendant Whallon was by the execution and delivery of this deed rendered insolvent or deprived of ample property with which to pay and satisfy all of his indebtedness, but it expressly appears upon the face of the complaint that the defendant Whallon is the owner of a' $5,000 mortgage on real estate worth $6,000, against which there is only a prior lien of $1,050, leaving the defendant Whallon clearly the owner of property applicable to the payment of his debts, largely in excess of the judgment held by the plaintiff as receiver, and not only not showing insolvency by reason of the conveyance but upon the face of the complaint showing the defendant clearly solvent.

The learned judge in his findings while he finds the conveyance was made with the intent to hinder and delay the plaintiff does not find that the execution and delivery of this deed rendered the defendant Whallon insolvent, or unable to pay his debts, but finds that he is the owner of the $5,000 mortgage; but does find, as a conclusion of law, that the deed from Whallon to McAuliff is fraudulent and void, and directs that th ,ame be set aside as to the judgment creditors represented by the plaintiff as receiver.

We think within the authorities referred to, the learned judge erred in his conclusions both of fact and law.

We see no difficulty in the plaintiff’s realizing the amount of his claims as receiver against the defendant Whallon out of the mortgage held by him against this farm in a proper action, but without undertaking to decide that question, we think the judgment in this case erroneous. The judgment must be reversed, and a new trial granted, costs to abide the event.

Putnam, J., concurs; Herrick, J., dissenting.


author: Herrick, J.

text:
    In the Matter of the Estate of Matilda Sunderlin, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Executors, etc.—Claim.
    Upon the proof of an executor’s claim against the estate on his accounting before the surrogate, the court has a little more latitude under such claim than a referee appointed, under the statute, would have on the trial of a contested demand against the estate,
    Appeal from a decree of a surrogate.

      J. W. Hill, for app’lt; Huston & Herrick (H. L. Huston, of counsel), for resp’t.
   Herrick, J.

From an examination of the evidence in this case, I can see no sufficient reason to reverse the conclusions at which the surrogate arrived in regard to the alleged agreement between the deceased and Sarah 0. Thumb. The surrogate has found that the deceased boarded with Sarah 0. Thumb for thirty years; that the value of board at the time, in that locality, was four dollars per week, and that she has never received any payment for the board and lodging so furnished; this, I think, should have been allowed. It is true that no specific claim for that amount was set forth in the written claim, which was devoted almost entirely to the statement of the alleged agreement by which she was to have all the property qf the deceased that was left at the time of her death. Still there is a request for such other relief as to the court may appear equitabie in the premises. This was an accounting before the surrogate, and the person presenting this claim was one of the administrators of the estate. There was no order of reference as is ordinarily the case where a claim against an estate is contested, where the referee would only be at liberty to determine upon the exact claim presented. It seems to me that the court here might have a little more latitude, under the claim made, than a referee appointed under the statute would. There has been no surprise; the time of the decedent’s board and lodging is not controverted, and the value of the board and lodging per week was admitted on the hearing. The decree, I think, should therefore be modified, allowing and directing to be paid to Sarah 0. Thumb the sum of $120 in payment for such board and lodging, and that the decree, as so modified, should be affirmed, with costs to the appellant to be paid out of the estate.

All concur.


author: G-ieg-erich, J.

text:
    Alfred Stover, App’lt v. Raphael Chasse, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 2, 1893.)

    1. Summary proceedings—Conventional relation.
    A transfer by a sub-lessor of his entire interest in the demised premises, constitutes an assignment of the lease.

      2. Same.
    Such transfer may be made in the form of a new lease.
    3. Same.
    The fact that the second lease reserves a different rent or a right to reenter for breach of condition, is immaterial.
    4. Same.
    Such lessee may maintain summary proceedings to remove a former tenant of his former lessor from the premises for non-payment of rent.
    Appeal by the landlord from a final order of the district court of the city of New York for the first judicial district, made upon a trial had before a justice thereof, without a jury, in summary proceedings for the recovery of possession of real property because of the nc n-payment of rent.
    In February, 1891, James S. Wilson and Edwin B. Wilson, then being the landlords of the leasehold premises known as No. 55 Yesey street in this city, by an instrument in writing leased to one Raphael Ghasse, the respondent herein, as tenant, the front basement of said premises for the term of two years from May 1, 1891, as a barber shop, and by which lease the respondent was given the first refusal of said premises for a further period of five years from May 1, 1893. The respondent entered into the occupation of said premises. He gave notice of his election to take a renewal of the lease for five years May 1, 1893, and he still occupies premises in controversy. The said premises are leasehold premises and the ground upon which the building thereon stands was at the time of the said Ghasse lease held by the said James S. and Edwin B. Wilson under a lease from the corporation of Trinity church in the city of New York, which lease the former assigned to one Albine Schultheis, who obtained from said last named owner of the fee a renewal of the lease for twenty-one years from May 1, 1893, and who on or about said last mentioned date executed and delivered to Alfred Stover, the appellant, a lease of the premises in controversy, together with other premises, for a term of five years from May 1, 1893, under which the appellant demands possession of the premises occupied by the respondent. The appellant demanded from the respondent the rent of said premises due since May 1, 1893, but payment thereof was refused. The respondent made tender of his rent to Mrs. Schultheis, who refused to accept the same, and who told him to pay his rent to the appellant and look to him as his landlord, but the respondent refused to recognize the appellant as his landlord. Summary proceedings were then instituted by the appellant against the respondent to remove him from the said premises for non-payment of rent. There was no dispute as to the facts upon the trial. At the close of the evidence the respondent’s counsel moved for the dismissal of the proceedings, on the ground that the appellant failed to show the conventional relation of landlord and tenant. The justice made a final order in favor in favor of the tenant, respondent, “ on the ground that the petitioner, appellant, has not the entire estate of Schultheis in the premises demised to Chasse, the tenantand the landlord has brought this appeal. »

      Alfred C. Beeves, for app’lt; Bernard J. IsecJce, for resp’t.
   G-ieg-erich, J.

The sole question presented for solution by this appeal is, whether the instrument made by Mrs. Schultheis to the appellant operated as an assignment of the entire estate of the former in the Chasse lease, or as a sub-lease. “ An assignment, as applied to leasehold interests, is properly defined to be a transfer or making over to another of the right one has in the unexpired residue of a term or estate for years. Though the interest be future, as a term of years to commence in futuro, the transfer is valid, because the interest is vested in presentí, though it does not take effect till a future time.” Me Adam on Landlord and Tenant (2d ed.), 269.

“An assignment, as contra-distinguished from an under-lease, signifies a parting with the whole term.” Id. p. 269.

Where the alienor by any instrument whatever, whether reserving conditions or not, parts with his entire interest, he has made a complete assignment; or if he, has transferred his entire interest in a part of the premises, he has made an assignment pro tanto. If he retain h reversion in himself he has made a sublease. Woodhull v. Rosenthal, 61 N. Y., 382, 391; Stewart v. Long Island R. R. Co., 102 N. Y., 601, 607-612 ; 2 St. Rep., 551; see Kelly v. Smith, which was decided by this court, and reported in 16 N. Y. Supp., 521; 41 St. Rep., 620. It is immaterial what form of instrument is used, whether it purports to be an assignment or1 a new lease (see cases last cited). The circumstances that the second lease reserves a different rent or right to a re-entry for breach of condition are immaterial. Stewart v. Long Island R. R. Co., supra. It is essential to an undertenancy that it be of apart only of an unexpired term. Bedford v. Terhune, 30 N. Y., 454, 457 ; Woodhull v. Rosenthal, supra ; Stewart v. Long Island R. R. Co., supra.

This case is distinguishable from Collins v. Hasbrouck, 56 N. Y., 157 ; and the cases cited by Bapallo, J., in his elaborate opinion in Stewart v. Long Island R. R. Co., supra, at page 613. In those cases the sub-lease provided for the surrender of the premises by the lessee to the lessor at the end of the term, while in the case before us the instrument to the appellant does not provide to whom he shall surrender the premises at the expiration of the term. Applying the principles of the decision in Stewart v. Long Island R. R. Co., Kelly v. Smith, and Woodhull v. Rosenthal, supra, to the present case, it must be held, that the effect of the demise of Mrs. Schultheis to the appellant of the premises occupied by the respondent for a period equal to her own term therein under the Chasse lease, was to 'divest her of any reversionary right in the demised estate and premises; and the appellant as the assignee of his said alienor succeeded to her entire estate and interest in the premises in controversy.

The final order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event


author: Pryor, J.

text:
    Winthrop Otis Sargent, App’lt, v. The Sargent Granite Company, Resp’t. Francis T. Sargent, App’lt, v. The Same, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 4, 1894.)

    1. Former adjudication—Pendency.
    Pendency of an action with an attachment in the court of another state is not pleadable in abatement of an action in this state by the same plaintiff for the same cause against the same defendant.
    2. Same—Attachment.
    Requisites of a plea of pendency of a foreign attachment.
    Actions on contract and appeal from orders in each action overruling demurrer to the following defense: “ For a further and separate defense it alleges upon information and belief that prior to the beginning of this action plaintiff began an action against defendant in the supreme court of the state of Maine for the same cause of action set up herein, and in said action plaintiff has attached the property of defendant. That said action is now pending and undetermined.” The defendant is a New York corporation. Other facts appear in the opinion.

      George Carlton Comstock, for app’lt; James D. Fessenden, for resp’t.
   Pryor, J.

When a superior court exercises statutory powers in accordance with the customary form of common law" or chancery procedure, the usual presumption as to its jurisdiction is entertained, but when those powers are to be exercised in a special or summary manner the record must show that the court had jurisdiction and proceeded in the way prescribed by the statute. 12 Am. & Eng. Ency. of Law, 276; Ferguson v. Crawford, 70 N. Y., 253, 259 ; Embury v. Connor, 3 id., 511, 522; Galpin v. Page, 18 Wall., 350 ; Haywood v. Collins, 60 Ill., 328. The process of attachment is the creature of statute and subsists only in conformity with the statutory regulation. Drake on Attachment, § 83 ; Waples on Attachment, 24; Haywood v. Collins, supra.

Hence, a plea of a pending attachment in a foreign jurisdiction, must allege the statute by authority of which it issues, and exhibit the proceedings at large, “ that it may be seen that the right to attach the debt existed and that the law has been strictly pursued.” Crawford v. Clute, 41 Am. Dec., 92.93; Wheeler v. Raymond, 8 Cowen, 315, note; Holmes v. Broughton, 10 Wend., 77; Drake on Attachment, § 705. The strictness of the former practice in pleading a dilatory defense, still prevails. White v. Miller, 7 Hun, 427; Wigand v. Sickel, 3 Keyes, 120.

Eeciting nothing more than that in an action in the supreme court of Maine the plaintiff attached the defendant’s property, the plea in controversy is obviously invalid. The allegation of the attachment is but the statement of a legal conclusion, and so is not admitted by the demurrer. Douglas v. Phœnix Ins. Co., 63 Hun, 393, 398; aff’d, 138 N. Y., 209.

Again, it is not' apparent that the attachment in Maine issued before the commencement of this action ; nor that the attachment ■is now pending; nor that the property attached is equivalent in value to the plaintiff’s demand—all which allegations are essential to the sufficiency of the plea. Hadden v. St. Louis, etc., 57 How., 390; Hecker v. Mitchell, 5 Abb., 454 ; Marsh v. Company, 46 Superior, 8 ; Embree v. Hanna, 5 Johns., 101; Wheeler v. Raymond, 8 Cowen, 311.

Since, in any event, the order overruling the demurrer must be reversed, it is not necessary to consider the defense which the plea essays to interpose; but as, doubtless, if not determined now, the question involved will be presented again by -an amended answer, we may properly dispose of it on the present appeal.

The question is, whether the pendency of an attachment in an action in another state, is pleadable in abatement of a subsequent action in this state by the same plaintiff for the same cause against the same defendant ?

That the mere pendency of an action in another jurisdiction, will not abate an action here for the same cause between the same parties, is settled beyond dispute. Douglas v. Phœnix Ins. Co., 138 N. Y., 309, 218; 52 St. Rep., 164. Why, then, should the added incident of an attachment work that result?

“A plaintiff is entitled to all the remedies provided by law for the collection of his debt, and need not be satisfied until he has had such a judgment as will bind the defendant individually.” Oneida Bank v. Bonney, 101 N. Y., 173, 175. The suit in Maine not being an action in personam, cannot issue in a judgment binding upon the defendant and available to the plaintiff beyond the appropriation of the property attached. Cooper v. Reynolds, 10 Wall, 308; Douglas v. Phœnix Ins. Co., supra. Hence, the remedy by the suit in Maine is not commensurate with the remedy in the present action; and upon principle, therefore, the plaintiff should not be compelled to forego a complete for a partial redress.

Moreover, the rights secured by an attachment being provisional and contingent on a recovery by the plaintiff, it follows that a final judgment for the defendant ipso facto vacates the attachment, and restores the parties to their original condition before the service of the writ. Franklin Bank v. Bacheler, 39 Am. Dec., 609. And, pending the action the inchoate lien of the attachment may be lost by a dissolution of the process for any one of many causes. 7 Lawson’s Rights, etc., §§ 3580-3589. Plainly so precarious and inadequate a remedy as an attachment affords, should not deprive the creditor of the security of a judgment conclusive of his claim, operative in personam, and available always and everywhere.

How stands the question upon authority?

Hot a solitary decision, or dictum even, is cited to sustain the proposition that an attachment merely is a good plea in abatement. The adjudication below proceeds on the assumption of an analogy between garnishment and attachment, but the argument is fallacious. Garnishment of the debt by a third person is plead-able in abatement of a suit by the creditor; because, otherwise, the garnishee might be subjected to a double recovery. Embree v. Hanna, 5 Johns., 101. But, the attachment before us “ is not analogous to the case of the pendency of a prior foreign attachment by a third person, for here the defendant would not be obliged to pay the money twice, since payment at least, if not a recovery in one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even preceed pari passu to judgment and execution, a satisfaction of either judgment might be shown upon audita querela or otherwise in discharge of the other.” Bowne v. Joy, 9 Johns., 221; Trubee v. Alden, 6 Hun, 75, 78.

Indeed, upon application by the defendant, trial of the second suit may be stayed until the determination of the first, Douglas v. Phœnix Ins. Co., 138 N. Y., 218 ; 52 St. Rep., 164, and an attachment in the second may be denied because of an attachment in -the first. Trubee v. Alden, 6 Hun, 75. It is, then, an illusionary apprehension that, unless the plea in abatement be allowed, a defendant may be harrassed by concurrent attachments in every state in the Union.

The defense interposed is insufficient in substance, Woodruff, J., in Hecker v. Mitchell, 5 Abb., 454, and the demurrer should have been sustained.

So much of the order and judgment -as plaintiff appeals from reversed and judgment ordered for plaintiff upon his demurrer, with costs in both actions.


text:
    Alice McIntyre, App’lt, v. Daniel Clark et al., App’lts, and Edward Duffy, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

    Lease—Life-tehaht.
    A lease by a tenant for life is determined by the death of the lessor.
    Action for partition, and appeal from interlocutory judgment and final judgment on report of referee. February 23, 1875, John Clark died seized of the premises in question. He left a will which provides among other things as follows: “Item 6. My property situated at the southeast corner of Avenue A and "East Twenty-third street, in the city of Hew York, being the only portion of my real estate from which any income is now derived, I direct to be managed by my executors as follows: All taxes, assessments, water rates, insurance and interest on mortgage due thereon to be duly and punctually paid; the property I direct to be kept in good repair. After fulfilling these provisions, all the remainder of the income derived therefrom, shall be paid over entire to my beloved wile, Catherine, during her natural life for her own sole use and benefit. And should it so be, that Mary McCabe, the sister of my dear wife, should survive my said wife, I order - one-fifth of the income derived from the aforesaid property to be paid annually to my dear friend and sister-in-law, Mary McCabe,, during the.remainder of her natural life, after the decease of my dear wife.
    “ Item 7. After the death of my dear wife, and the fulfillment of the provisions hereinabove made, I direct and order, that the-net income derived from my estate be equally divided between my surviving brothers and sister Alice, share and share alike during their term of life then succeeding. If but one survives, that one receives the whole income. After the death of my brothers and sister Alice, I direct and order that the remainder of my property, be divided into equal parts between the issue or descendants of my brothers and sister Alice. The descendants of my deceased brother’ James to receive one share, those of my sister Alice, one share, and those of my brother Daniel, one share. Should there remain descendants of only two .or one of the brothers and sister aforesaid, the ratio of the division as laid down is to-be duly carried out, representatives of each to receive what would have been the share of their parents or ancestor. Finally, I hereby constitute my beloved wife Catherine, executrix, and my friend and cousin, William Dougherty, executor of this, my last will and testament, with full power to rent or lease, or mortgage or sell the property on the corner of Avenue A and East Twenty-third street, should such or any such proceeding become judicious or necessary. But should the property be sold by my executors, I direct that the proceeds be safely invested in either first mortgages on real estate in the city of Hew York, or in interest paying bonds of the city or state of Hew York or of the United States, and that the income be given as I have herein before provided."
    Catherine Clark, the widow, died July 18, 1892. Dougherty, named executor, died before the lease to Duffy. The lease to Duffy, executed by Catherine Clark, was for five years from May I, 1891.

      James F. Swanton, for pl’ff-appl’t; Toionsend & Mahan, Stephen J. O'Hare and John J Macklin, for def’t'-appl’ts. Lewis J. Conlon, for def’t-resp’t, Duffy.
   Pryor, J.

Upon the argument the single question in controversy was, whether the lease of Catherine Clark to the defendant DufEy survived the death of the lessor.

It is manifest upon the face of the will that, besides the power to sell, lease or mortgage, the executors were to be in possession of the premises, to receive the rents and profits, ana to apply them for the security of the property and for the support of the beneficiaries of the trust. It results, therefore, if the devise be valid, that the executors took not a power only, but the estate itself. 1 Edm. Stats., p. 677, § 47; p. 678, §§ 55, 56; Ward v. Ward, 105 N. Y., 68 ; 6 St. Rep., 798.

But the devise in its entire scope is not valid; because contrary to the statute prohibitory of perpetuities. If by reason of the authority to sell imparted to the executor, still “ the proceeds would be tied up by the trust in violation of the statute.” Haynes v. Sherman, 117 N. Y., 433, 438; 27 St. Rep., 254. The power to lease being an essential element in the scheme of disposition fell with the trust, of which it was an inseparable incident. Benedict v. Webb, 98 N. Y., 460. The executors, therefore, as trustees had no authority to make the lease.

The respondent, nevertheless, contends that his lease is valid, because the lessor, Catherine Clark, was vested with an estate for life in the property, and so was competent to create the term.

In respect of the provision for Catherine Clark the learned judge upheld the will, and we concur in his conclusion. Kennedy v. Hoy, 105 N. Y., 134; 6 St. Rep., 787; Haynes v. Sherman, supra; Henderson v. Henderson, 113 N. Y., 1; 21 St. Rep., 800.

It is to be observed that the lease does not purport to be made by Catherine Clark as executor or trustee, but is her individual demise. But the respondent insists that as upon the death of Dougherty she became sole trustee, she was vested by merger with a legal estate of the same duration as her beneficial interest. Greene v. Greene, 125 N. Y., 506; 36 St. Rep., 30. As life tenant then, assuming her to be such, she had undoubted power to transfer an interest commensurate with her own estate; but, since her own estate was determined by her death, the derivative interest necessarily expired upon the same event. Resoluto jure concedentis resolvitur jus concessum:' Broom’s Maxims, 467; 4 Kent’s Com., 106. The apparent exception in copyhold law to the elementary rule goes upon the principle that the estate of the guarantee is not derived from the lord pro tempore, but stands upon the custom. Rawlyn’s case, 4 Rep., 52.

Any act of a life tenant in derogation of the rights of remaindermen or reversioners is nugatory. Torrey v. Torrey, 15 N. Y., 430, 432, and he is incapable of creating a term that shall outlast his own estate. 4 Kent Comm., 74; Boone on Law of Beal Property, § 43.

The respondent, however, appeals to the provisions of the Be-vised Statutes authorizing a power to a tenant for life to make a lease for twenty-one years. 1 Bdm. Stats., p. 683, § 86. But, as already seen, the attempted grant of power to lease was futile, because implicated with the illegal disposition; and Catharine Clark made the lease in her own right and as of her proper estate.

The unavoidable conclusion is that the defendant Duffy has no estate, right, title or interest in the premises; and that the refusal of the referee so to find was error.

Judgment affirmed, except in so far as it sustains the lease to respondent Duffy and directs1" a sale subject to said lease, and in that particular reversed; no costs.


author: Daly, Ch. J.

text:
    Moses Tanenbaum et al., App’lts, v. Simon Feist, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 2, 1894.)

    1. Insurance—Fire—Binders.
    Under an agreement with insurance brokers to procure insurance on his stock, etc., the fact that the principal retained the binders sent him by the brokers after an objection to which they apparently concurred, does not amount to an acceptance of the policies.
    2. Same.
    Where the brokers, after the refusal of the principal to accept the binders, promised to send policies as desired, it became their duty to do so as part of their agreement, and, if they fail to fulfill their promise, they have no cause of action, either upon the contract or for moneys paid out and expended by them.
    Appeal by plaintiffs from a judgment of the general term of the city court affirming a judgment of the special term entered upon a verdict in favor of the defendants directed by the court. Also appeal from an order affirming an order denying a motion to set aside the verdict and for a new trial.

      Benno Loewy, for app’lts; Howe & Hummel, for resp’t.
   Daly, Ch. J.

By a contract in writing made January 19, 1891, between the plaintiffs, who were insurance brokers, and the defendant, who was engaged in business at 57 Walker street, plaintiffs agreed to procure insurance on the stock, etc., in said premises for one year from January 20, 1891, at the rate of sixty cents for every $100 of insurance, regardless whether the plaintiffs paid a greater or lower rate to the companies. The plaintiffs were to procure all insurance required by the defendant in any of the companies named in a schedule annexed to the agreement. The defendant agreed during the period of the agreement not to insure except through the plaintiffs and to make payment of the premiums on demand after the delivery of policies or renewals.

Immediately upon the execution of the contract the defendant required insurance to the amount of $20,500 on his stock and plaintiffs sent him on the last day of January or the first of February “ Binders ” of insurance from three of the companies named in the schedule. These companies and the policies they were to issue were, Mutual $10,500, Armstrong $5,000 and Fire Association $5,000. There were two documents known as “Binders,” one reciting that it was binding March 17, 1891, and the other February 13, 1891.

Upon the receipt of these papers the defendant sent for Mr, Bear, one of the plaintiffs, and said to him, “You sent me binders for $10,000 in the Mutual and $10,500 in the Armstrong; ” that those companies were both controlled by. the same party, and that he refused to take more than $2,500 in each, or $5,000 in one, and that Mr. Bear said they did not issue less than $5,000. Subsequently, on February 10th, plaintiffs wrote to defendant that they would send policies as desired at the end of the week, but on the 13th they sent the policies described in the binders, which defendant immediately returned with the statement that as plaintiffs had not heeded his orders in reference not to insure more than $2,500 in the Armstrong or Mutual companies he asked them to cancel the contract and to consider it void.

This action was commenced by plaintiffs to recover $123, the premiums upon .the three policies so rejected, upon a cause of action for money laid out and expended for defendant. The answer denied the allegations of the complaint, set up the special agreement of January 19th and alleged that it was made upon the express understanding that the plaintiffs would not insure the defendant in either the Armstrong or Mutual companies in a, sum in excess of $2,500, or $5,000 in any one of the said two companies and that plaintiffs, in violation of that agreement, procured policies in said companies in the sum of $20,500.

At the close of the case a verdict was ordered for the defendant, and from the judgment entered thereon the plaintiffs appeal. While defendant did not prove the defence set up, namely, that, the agreement of January 19th was made upon any condition as to the limitation of the amount to be insured in any one company, it was nevertheless shown that he immediately objected to the proposed policies mentioned in the binders and that he refused to insure more than $2,500 each, in the Armstrong and Mutual companies and that the plaintiffs, so far from insisting upon the right to use their discretion in the matter, subsequently wrote to the defendant a letter in which they promised the policies he desired. There is no dispute as to the fact of defendant’s objection to the binders, for this was testified to by the defendant himself, called by plaintiffs as their witness, and there is no contradiction of his testimony. The plaintiffs rely upon the fact that he retained the binders; but the fact of such retention after an objection in which the plaintiffs apparently concurred is immaterial.

The acts of the parties showed that they construed their own agreement as reserving to the defendant some discretion as to the amount of insurance to be covered by the policy of any one company, or that with respect to the policies in question there was a new agreement to that effect; and when the plaintiffs, after the objection of the defendant was made known to them, promised to send policies as desired, it became their duty to do so as part of their agreement and as they failed to fulfill their promise they had no cause of action. The defendant was not in default upon the contract and could not be made liable either in action upon the agreement, nor in assumpsit on the theory of a breach of the contract for moneys paid out and expended by the plaintiffs.

The defendant was, therefore, entitled to a verdict and the judgment and order appealed from must be affirmed, with costs


author: Per Curiam.

text:
    Charles A. Glyn, App’lt, v. Julia Miner, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 4, 1894.)

    Contract—Satisfactory.
    A contract which provides that the employer may dismiss the employe when he deems the service not satisfactory, entitles him to dismiss at pleasure.

      Appeal from a judgment in favor of defendant.
   Per Curiam.

The language of the contract is equivalent to a stipulation that the employer might dismiss the plaintiff at pleasure. "It provides that he may do so when he deems the service not satisfactory;" the tenure of the employment, therefore, depending solely upon his opinion, or judgment, for which the opinion or judgment of the court or jury cannot be substituted, as the question involved is not one of performance but of the employer’s appreciation or estimate of the manner of performance.

The relations of master and servant are private, confidential, intimate and personal. The death of the master terminates the contract; the services of the servant are not assignable; and this has been held with regard to all employes "no matter what the grade of service. The decision of the trial judge is in conformity with the case of Tyler v. Ames, 6 Lansing, 280; and in at least two cases in this court. Brand v. Godwin, 15 Daly, 456; Johnson v. Bindseil, 16 id., 232; 31 St. Rep., 280. One of our cases Hydecker v. Williams, 45 St. Rep., 637, is cited by appellant as holding the contrary ; but the language of the contract there was that the employe might be discharged if the duties were not “ satisfactorily ” performed. We held that it was a question for the jury whether they were satisfactorily performed or not, for the language means that they were to be performed so as to satisfy the requirements of the contract, and that was a question which the jury could decide as well as the master. But here we have a stipulation that the party is to perform the duties of his position so as to be deemed satisfactory by the employer, and we find in that an equivalent to the agreement that his engagement is dependent upon his service being personally agreeable to his employer.

The appellant urges that a discharge under such a covenant would leave the servant open to some imputation if the employer need give no reason for it. But is that so ? As his engagement is terminable at pleasure and not for breach of duty, no inference of misconduct arises from his discharge.

Judgment affirmed.


text:
    The Bradley Fertilizer Co., Pl’ff, v. The South Publishing Co., Def’t.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Appeal—Leave.
    Leave to appeal to the court ot appeals will not he granted hy the general term of common pleas, where there is no question which the latter cmrt feels justified in sending to the former court for examination.
    Motion of plaintiff for leave to appeal to the court of appeals.

      George Walton Green, for pl’ff; Herbert IT. Gibbs, for def’t.
   Per Curiam.

That plaintiff desires to present this precise question to the court of appeals, Whether a corporation may not be estopped to deny its de facto existence at a time prior to its de jure existence, when the facts show that the corporate name at such prior time was used by the men who after its legal incorporation became its executive officers? ”

The facts of the present case do not present such a question; the corporate name was used by one man for many years before any incorporation was attempted, and the debt sued for was incurred by him individually under the pseudonym of “ Manager of the South Publishing Company,” there being at the time no such company and no association of individuals doing business as such, and no attempt at any organization or incorporation, the corporation now sued having been organized by him and his former employes several months after the last delivery of the goods sued for, no part of which were received or used by such corporation.

Upon those facts we have twice held, upon the two appeals in this case, that no cause of action against the defendant company on the ground of a prior de facto corporation was established ; and there is no case to which our attention has been called which is in conflict with our views. In Bow v. Allentown, 34 N. H., 351, the municipality had for many years exercised corporate powers, and was held liable for obligations incurred before it actually received its charter; in Dooley v. Cheshire Glass Co., 81 Mass., 494, the corporation was not permitted to set up, in order to defeat a recovery, a defect in its organization, i. e., omission to publish the certificate of organization which had been filed in compliance with law. In Whitney v. Wyman, 11 Otto, 392, a debt contracted by the parties organizing a corporation, on its behalf and for its benefit, and subsequently recognized by it, was held to be the debt of the corporation, and not the obligation of ‘the parties. The latter case presents the question before us in the strongest way. Let us suppose that the plaintiff had sued Clough individually for the goods which he had ordered as “ Manager of the South Publishing Company.” He could not have defended upon the ground that the debt was not his debt, but that of the company which he subsequently organized, for it would appear that the goods were not ordered for any corporation then in existence, or contemplated, or in course of organization, but were for his individual benefit, his title of manager being purely fictitious. If he could not then have escaped liability to the plaintiff on the ground of agency, the plaintiff cannot assert such an agency as against a principal not in existence, and not at any time benefited by the transaction.

There is no question, therefore, which we feel justified in sending to the highest appellate tribunal of the state for examination.

Motion denied; no costs.


text:
    Susan Geoghegan, as Administratrix of, etc., Resp’t, v. The Atlas Steamship Co., App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Appeal—Reargument .
    A motion for a re-argument will be denied, where the moving papers fail to show that any question presented, by counsel, and decisive of the case, has been overlooked by the court

      Motion for reargument

      Boger M. Sherman, for motion; Lawrence Godhin, contra.
   Pryor, J.

The moving papers fail to show that any question presented by counsel and decisive of the case, has been overlooked by the court. Bule 16. The complaint rather is that points are presented by the court which were overlooked by counsel.

It is true that, through no neglect gr inadvertance of counsel, however, attention was not directed to Gabrielson v. Waydell, and Barrett v. Palmer in the 135th volume of the court of appeals reports ; but the adjudication in neither of those cases is inconsistent with our decision. Barrett v. Palmer, 47 St. Rep., 876, is altogether beside the question in controversy; and the doctrine of Gabrielson v. Waydell, 47 St. Rep., 848 only affords additional support to our conclusion. The doctrine is : “ That the master and seamen of a. vessel are fellow-servants ”; and that the principal “ has performed his duty when he has furnished to those who are employed by him a reasonably safe place, appliances adequate to the purposes of the employment, and when he has appointed as fellow-servants in the undertaking proper persons, competent for the position. After that, from what may happen from the risks of the employment, or from the negligence or torts of fellow-servants, he will not be responsible.

In Hogan v. Smith, 125 N. Y., 774; 35 St. Rep., 890, the court said: “ But the place which the master furnished was the ship itself, constructed in the usual way, and which became unsafe, not by reason of any careless or negligent plan or manner of construction, but solely from the way in which the long-shoremen did their work.’’ So here, the accident occurred from the neglect of the fellow-servants to close or guard the door through which the intestate fell.

In- no view of the ease is it possible to uphold the judgment. Upon reconsideration we áre all the more content with the decision.

Motion denied, with costs.


author: Giegerich, J.

text:
    John Scanlon, Resp’t, v. The H. B. Claflin Co., App’lt.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    Contract—Renewal.
    No renewal of the previous year’s agreement for extra compensation will be presumed, where, upon a suggestion from plaintiff’s manager that such extra compensation would be discontinued, only a disagreement, appears.
    Appeal by the defendant from a judgment of the district, court in the city of New York, for the first judicial district, rendered upon a trial before the justice thereof without a jury.
    Action to recover balance of wages alleged to be due the plaintiff from the defendant.
    The opinion states the facts.

      Kneeland & Stewart, for app’lts; Wm. J. A. Oaffrey, for resp’t..
   Giegerich, J.

The plaintiff's evidence is insufficient to support his cause o£ action. It is conceded that the agreement as to extra compensation for the year 1889 was executed, but the testimony of the plaintiff, with reference to the arrangement for the year 1890, fails, in our opinion, to establish a like contract for that year or for the years following.

This testimony is to the effect that defendant’s manager suggested that the extra compensation would be discontinued and that there were “ angry words,” but no renewal of the previous year’s agreement appears. Were it not for this, admitted discord a contract for similar compensation might be implied, but in the face of such disagreement it certainly would seem that the plaintiff did not justly rely upon any further compensation for his weekly work than his weekly wages. The case was insufficient at the time when plaintiff rested, and the error presented by the refusal to dismiss was not cured by evidence subsequently ad- . duced.

For these reasons, the judgment should be reversed and a new-trial ordered, with costs to abide the event.


text:
    Mary Aldrich, Resp’t, v. Heman Aldrich, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893).

    Divorce—alimony.
    Orders for alimony and counsel fees are very largely in the discretion of the special term.
    Appeal from an order granting alimony and counsel fees,

      Forrest K. Moreland, for app’lt ; John M. Kellogg, for resp’t.
   Herrick, J.

— Orders of the kind appealed from are very largely in the discretion of the special term. From an examination of the affidavits upon which this order was granted, and the pleadings in the case, it does not clearly appear to me that the special term abused the discretion vested in it, and therefore, I think that the order appealed from should be affirmed.

Let an order be entered accordingly, with ten dollars costs and printing and other disbursements.

All concur.


text:
    Charles F. Tallman et al., App’lt, v. William H. Himball, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Principal and agent—Ratification.
    A ratification by the principal of a portion of the acts of the agent binds him as to all the acts of such agent in the same general business.

      2. Evidence—Similar transactions.
    Similar transactions are not allowable in evidence, where criminal or fraudulent acts are not under investigation.
    2. Same—Contradiction.
    A party is not permitted to contradict a witness upon collateral or irrelevant matter into which he has himself inquired.
    Appeal from a judgment of St. Lawrence county court, affirming the judgment of a justice of the peace.

      Keeler & Bussell, for app’lts; Nelson L. Bobinson, for resp’t
   Mayham, P. J.

Two grounds are relied upon by the appellants for the reversal of the judgment on this appeal.

First. That the acts of the mechanic who did the work and purchased the materials, although not authorized in advance by the defendants, were in all respects adopted and ratified by him except as to the plaintiff’s claim after the work was done and the materials were furnished, and that such ratification was equivalent to an original authority from the defendant. The fact that the mechanics did the work and furnished materials without the direction of. the defendant, and that defendant afterwards paid the bills, is proved, and not disputed by the defendant; but he swears that he gave the mechanics no authority to buy these goods of plaintiff. A precedent authority was not necessary to bind the defendant, provided he subsequently ratified the act of the person assuming to act as his agent, and a ratification by the principal of a portion of the acts of the agent, bind him as to all the acts of such agent in the same general business. Commercial Bank v. Warren, 15 N. Y., 580; Heermans v. Clarkson, 64 id., 171; Hayes v. Kedzie, 11 Hun, 581; Lawrence v. Taylor, 5 Hill, 107. He cannot ratify just so much of the unauthorized acts of one assuming to act for him, as he pleases, and reject the rest of his act. He must affirm or reject in toto. Flower v. N. Y. Gold Exchange Bank, 67 N. Y., 143.

The defendant having adopted some of the acts and paid for the labor, and some of the materials performed and furnished' by the mechanic upon his buildings, and the goods purchased of the plaintiff having been bought by the mechanic, in the same manner as those for which the defendant paid, and háving gone into his buildings and been used for his benefit, we think a legal obligation exists against him to pay for the same.

The second point raised by the appellant is that the justice erred in allowing the defendant to prove transactions between this mechanic and other persons not connected with 'this work, and to allow him to be contradicted in relation to his evidence given on such testimony. Such evidence is not allowable on the ground that the transactions are similar to those arising in this case. There is no issue of fraud in this case, and it is only where criminal or fraudulent acts are under investigation that this class of evidence has been admitted. Olmsted v. Hotailing, 1 Hill, 317. Nor was it competent to ask questions of the witness of this irrelevant character for the purpose of laying the foundation to contradict the witness. A party is not permitted to contradict a witness upon collateral or irrelevant matter into which he has himself inquired.

For the reasons above stated the judgment of the county court and that of the justice must be reversed.

Judgment reversed, with costs of this appeal, and in the county court.

Herrick, J.,