author: Mayham, J.

text:
    William H. Jackson, Resp’t, v. Stephen Collins, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Evidence—Minute s of town board.
    The record or the minutes of the proceedings of a board of town officers which the statute does not require a town clerk to make are not evidence, and his entry of them in his minutes is of no effect.
    2. Same—Powers of town officers.
    The powers of town officers are purely statutory and where they are in. session at a time or place not prescribed by statute their proceedings are void, and the record of them is inadmisible.
    3. Justice’s court—Admission of improper evidence.
    Where there is sufficient legal evidence to support a recovery by the-plaintiff an appellate court will not reverse because improper evidence was. admitted in a justice’s court.
    Appeal from a judgment of the Montgomery county court, affirming the judgment of a justice’s court in favor of the plaintiff..

      Edward P. White, for app’lt; A. B. Flansburgh, for resp’t.
   Mayham, J.

The complaint in this action contained two counts-, or alleged causes of action. The first count alleged that the plaintiff, at the request of the defendant and for his benefit, performed and rendered services, the items of which were set out in the complaint. The second count or cause of action in the complaint, alleged that the defendant received from the town of Amsterdam thirty-three dollars, in consideration of which he undertook, promised and agreed to pay the plaintiff $46.50 for the work and labor mentioned in the first count in the complaint The answer was a general denial and also an allegation that-the services rendered by the plaintiff, and for which he brings the action, were rendered for the town of Amsterdam, and upon the agreement that the plaintiff’s compensation therefor should be audited and determined by the state board of assessors, and the amount so audited should be in full for plaintiff’s services, and that the plaintiff’s bill for services was audited by such board at sixty-six dollars, and had been paid to the plaintiff in full. The plaintiff recovered a. judgment in justice court from which the defendant appealed to the county court, where the judgment was affirmed, and from the judgment of affirmance the defendant appeals to this court.

The principal ground upon which a reversal is claimed is that ¡the justice erred on the trial m the admission of improper evidence. The case shows that the defendant, Stephen Collins, was supervisor of the town of Amsterdam in 1887, and that he brought an appeal to the state board of assessors from the equalization of the board of supervisors of Montgomery county for that year, and that the plaintiff rendered services on that appeal in making estimates of valuations of property assessed in that county to be used on that appeal before the state board of equalization.

On the part of the plaintiff it was insisted on the trial that the defendant personally agreed to make the plaintiff good for such ¡services at the compensation of three dollars per day.

On the part of the defendant it was insisted that the arrangement was that plaintiff should render his bill at the rate of three dollars per day, but that the bills were to be audited by the state board of assessors, and that the amount allowed by that board was to be the measure of the plaintiff’s compensation.

On this disputed point the plaintiff and defendant are, in their testimony on the trial, in direct conflict. The plaintiff rendered a bill to the board of assessors for $112.50, on which that board audited and allowed the sum of $66, which was paid to and received by the plaintiff. The plaintiff sought to recover in this action the balance of this bill, being the sum of $46.50. On the trial the plaintiff, after proving by one Lindsay that he was town clerk of the town of Amsterdam, and that he had with him the original record of the town board, as to meetings when Collins appeared before them, offered the original records of November 17, 1888, and of December 31, 1888.

This was objected to by the defendant “ as incompetent, improper, not the best evidence, and that the town board had no jurisdiction to act at the times stated, or at the place mentioned.”

This objection was sustained as to the meeting of December 31, 1888, and overruled as to the record of November 17, 1888, and that part of the record admitted, to which ruling the defendant duly accepted. The part admitted reads as follows: “ Town of Amsterdam, Nov. 17, 1888. At a meeting of the town board held at the house of John C. Chalmers, the following were present: John S. Sweet, supervisor; John C. Chalmers, G. B. Collins, C. B. Truax and Robert Stairs, justices; Edward C. Fowler, town clerk.

“ Motion was made by Robert Stairs and seconded by John C. Ohalmers, that balance of Stephen Collins’ bill, two hundred eleven dollars and forty-five cents, be paid in the case of the appeal. ■Carried.

“ Motion made by C. B. Truax and seconded by Robert Stairs that the bill of P. J. Lewis be allowed at one hundred dollars in full to date, in the Murphy case. Carried.

“ Motion made by C. B. Truax and seconded by John C. Chalmers, that the bill of the Children’s Home be allowed at sixty ■dollars. Carried.

“ Motion made and carried that the bill of Seeley Conover be allowed at five dollars and seventy-three cents. Motion made by 0. E. Truax, and seconded by Eobert Stairs, that Stephen Collins be allowed four hundred and fifty-five dollars and fifty-five cents, in addition to two hundred and eleven dollars and forty-five cents previously allowed, to pay all claims against the town in the case.of the appeal of said town. Carried.

“ Motion made by Eobert Stairs and seconded by John 0. Chalmers, that the supervisor be authorized to issue an interest bearing check for eight hundred thirty-two and 78-100 dollars payable. 1st February, 1890. Carried.”

Cross-examination: I was not town clerk at the time, and know nothing of the record personally.

Edward Fowler being duly sworn, says: I was town clerk of the town of Amsterdam in 1888 ; was present at the meeting, November 17, 1888; -Collins appeared before the board; the meeting was called by supervisor.

State what was said by Collins to the auditing board in relation, to cut bills of the appraisers ?

Same objection as above, and further that the board could not. act on oral statements, but only on verified bills in writing.

Objection overruled; defendant excepts.

A. Collins said that his own bill had been cut and that others-employed by him as supervisor had been cut, and the board allowed him an amount to pay these claims. Supervisor Sweet gave him a check for $667; the check was paid.

Cross-examination: The meeting of November 17, 1888, was-not held pursuant to any adjournment; the regular meeting was held at “Hagaman’s Mills;” when they got through, November-9, 1888, they adjourned without day.

After the receipt of this evidence under the objection of the-defendant, a motion was made to strike it out, which was denied,, and the defendant excepted to such ruling of the justice.

We think the record, or minutes of the proceedings of the town officers was not legally admissible as evidence. It was in no-sense a record which the law required the town clerk of the town to make; and is not therefore made evidence by statute. The powers and duties of town clerks are prescribed by statute; and minutes and records kept by them -are only competent evidence of matters and proceedings which they are bound by law to record, or file, and any paper or record which they are not required by law to file, or record, does not by reason of this filing or recording of the same become legal evidence. It is only papers duly filed as required by law in the town clerk’s office that are made-evidence by statute. See art. 2, tit. 4, chap. 11, part 1st of Eevised Statutes. Eighth, Banks & Bro., Ed., page 900.

It is also urged by the defendant that the entire action of the-town officers, of which the minutes of the clerk purports to be a record, was irregular, unauthorized and void, and did not bind the town or the defendant, and the record of the proceeding was for that reason incompetent evidence and should have been excluded, under the defendant’s objection.

It appears upon the face of the clerk’s minutes of the proceedings and from the oral evidence offered and received in connection with such minutes, that the town board was not in session at the time or place prescribed by statute for examining and auditing or allowing accounts, nor was it at any time or place to which any regular meeting of that board had been adjourned. The powers of these town officers are purely statutory, and they have no-power to act as a board, except in pursuance of some statutory provision; that being so, it follows as a necessary result that any act which they assume, to perform was wholly unauthorized and void. In any respect in which we can view this evidence we must conclude that it was incompetent, and that its admission was error; but it is urged by the learned counsel for the plaintiff that if this evidence was incompetent, and its reception by the justice was erroneous, still there is enough unobjectionable common law evidence which was competent to uphold the judgment, and under the liberal rules which have obtained, in reviewing on appeal judgments of justices of the peace, this judgment should be affirmed.

It is quite apparent that the plaintiff’s motive in introducing, this alleged audit was to furnish a consideration for the alleged agreement on the part of the defendant to protect and keep the town from any further liability, and had this action arisen between the town and the defendant, it would have been so directly upon the controversy that its probable injurious consequences could not safely be disregarded. But no such question arises in this case. The real question here is whether, from the evidence of an objectionable character, the jury were authorized to believe that the defendant employed the plaintiff to render such services, and became, by virtue of that employment, obligated to pay at the rate of three dollars per day for them. If he did, then the jury would be authorized-to render a verdict in the plaintiff’s favor for the balance which they found due him for his services, after deducting such payments as the plaintiff had received on account of such services. It is objected that this could not be done under the pleadings, as a general verdict for the plaintiff would not disclose upon which theory of the plaintiff’s complaint the verdict, was rendered. But whatever rule might obtain in courts of record upon a technical question of this character, it is quite clear that a. different rule is authorized in reviewing judgments of justices” courts on appeal. Section 3063, of the Code of Civil Procedure, provides as follows: “ The appellate court must render judgment, according to the justice of the case, without regard to technical errors or defects which do not affect the merits.” In this case the-testimony of the plaintiff, as to the terms of the contracts, and the corroborating evidence of several witnesses who testified to the defendant's admissions as to what his agreement with the plaintiff was was sufficient, if believed by the jury, to uphold their verdict in favor of the plaintiff.

In Earl v. Lefler, 46 Hun, 10,11; 10 St. Rep., 807, where the court held that illegal evi den ce 11 ad in séveral instances been received under objection by the justice, this court held that the county court properly declined to reverse the judgment on account of the reception of such improper evidence, and lay down the rule that where there is sufficient evidence of an unobjectionable character to uphold the judgment, the court will not reverse on the ground that improper evidence had been erroneously admitted by the justice. And the court in that case uses this language: “ It has frequently been held that the admission in a justice court of incompetent testimony to establish a fact clearly proved by other testimony of a competent character is not such an error as requires' the county court to reverse the judgment.”

Humerous cases might be cited to the same effect in support of this proposition. The undisputed evidence in this case is that the ■defendant asked to be reimbursed for liabilities which he had incurred on his appeal to the state board of assessors, and his successor as supervisor of the town gave him a check for $667, which the case shows was paid. Whether that was sufficient to fully indemnify him we need not here inquire. The evidence justified the verdict of the jury in finding him liable on his promise made to the plaintiff, and we see no sufficient reason for interfering with the same, or with judgment of the county court affirming the judgment of the justice entered on such verdict

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alfred Cooper, Adm’r, Resp’t, v. Watson P. Harvey et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Fraud—Opinion as to value.
    Where a purchaser has full opportunity to examine premises and no artifice is used to prevent his doing so, the expression of an opinion as to value by the seller is not fraud, although the value expressed is extravagant.
    2. ‘Fixtures—Mortgagor and mortgagee.
    Where one purchased mill property, a main element of value being its machinery, it was held that the latter was covered by a purchase money mortgage and passed to the vendor on foreclosure.
    3. Same—Their character not changed.
    Upon such a sale the grantor stated that the machinery was personal property; he gave a bill of sale of it and took a chattel mortgage back. Held, that as the machinery was affixed to the freehold and as the intention of the parties was that it should be real estate, the statement of the grantor and the taking of the chattel mortgage did not change its character.
    4. Same—Annexed after a mortgage given.
    Machinery put in a mill, after a mortgage given, suited to its uses and permanently affixed, becomes real estate as between mortgagor and mortgagee.
    Appeal from a judgment of foreclosure of a mortgage and directing the sale of mortgaged premises entered upon the report of a referee.

      Cady & Hoysradt, for resp’t; E. F. Bullard, for app’lts.
   Mayham, J.

On the 25th of October 1879,.Greorge B. Cooper conveyed the mortgaged premises in question in this action to Watson P. Harvey and Martha Bailey, wife of Hiram F. Bailey, for the consideration expressed in the deed of $16,500, and for the purpose of securing the payment of $14,500 of the purchase price of premises, the grantees and Hiram F. Baily executed and delivered to the grantor their bonds in the penal sum of $29,000 conditioned for the payment of such purchase money, and as collateral to such bond the grantees executed and delivered to the grantor the mortgage to foreclose which this action is prosecuted. A bill of sale of the machinery in the mill was given by Cooper .to the purchaser and a chattel mortgage given back for the same at the time of the conveyance of the real estate. The complaint is in the ordinary form in an action of foreclosure. The answer of the defendants Watson P. Harvey and Carrie Harvey, without putting in issue the execution of the mortgage, seeks to defend the action on the ground of fraud, alleged to have been practiced by the plaintiff’s intestate (Cooper) in the conveyance, and in the procuring of the mortgage. The referee finds and the case shows that at the time of the commencement of the negotiation for the sale of these premises by the agent of Cooper, the grantor, he offered to pay Hiram F. Bailey $2,000 if he would furnish a purchaser for the same at $19,000 and that it was subsequently changed so that Bailey was to receive that amount if he furnished a purchaser for the same at $16,000 and that thereafter Bailey opened negotiations with Watson P. Harvey for the sale of the premises to him, and such negotiations finally resulted in the sale to Harvey and Mrs. Bailey, wife of Hiram F. Bailey, without any knowledge on the part of the purchasers that Hiram F. was to receive for negotiating such sale the sum of $2,000 from the grantor.

The appellant now insists that in that sale Hiram F. Bailey acted as the agent of Harvey and his wife to negotiate the purchase, and also as the hired agent or broker of the grantor to effect a sale ; and that he in' effect was serving two masters, in the same transaction, whose interests were adverse to each other; and that such participation in this sale constituted a fraud as against the grantees, which taints or vitiates this mortgage. If this case clearly disclosed that Hiram F. Bailey acted as the agent of Watson P. Harvey and Martha Bailey in the purchase of this property, while at the same time he was the paid broker or agent of Alfred Cooper, the grantor and vendor of this property, and that Cooper was cognizant of the existence of that relation between Bailey and the grantees, it would furnish a very strong circumstance tending to establish the presumption of fraud. Story on Agency, § 210 ; National Life Ins. Co. v. Minch, 53 N. Y., 145. But while the existence of relations between the parties and one assuming to act- as the agent for both parties would furnish a strong presuipption of fraud, I find no case holding that it, standing alone, unaccompanied by any proof of fraud in fact, to the. injury of the party, would be per se such a fraud as to vitiate the. contract of the parties when the same has been entered upon by them. In Ranney v. Warren, 17 Hun, 113, the court held that fraud accompanied with damages gives a right of action. But fraud without damage does not But we find no evidence in this case that Hiram F. Bailey was, in fact, the agent of Watson P. Harvey and Martha Bailey, and the referee expressly refuses tp find the existence of that'relation between them, and while the •circumstances are not free from doubt ón that subject, we do not "think them- clear enough to authorize us to interfere with that finding.

Hiram F. Bailey was, therefore, the real estate broker employed by Henderson, the agent of Cooper, to sell these premises and as such was in a position to legally contract with Cooper for his compensation in finding a purchaser. He accompanied Harvey and Harvey’s father, an experienced person in mills, fixtures and machinery of this kind, on a tour of inspection of this property, and these parties made a full examination of the same, and there' is no evidence of any concealment or misrepresentation as to the char-acter, condition or quality of any of the property; but the purchasers were not informed of the compensation which Bailey was to receive for his services in procuring a purchaser. In the absence of evidence of conspiracy or fraud, Cooper and Bailey could agree upon the compensation to be paid, for finding a purchaser, and that agreement in itself would not be a fraud upon the purchasers, nor would the fact that its terms were kept secret as to them give them any just ground of complaint

Such agreements are of daily occurrence, and we are not aware that they have ever, in the absence of fraud or conspiracy, been held to violate any just rights of the purchaser.

But it is insisted that Cooper and his agents over estimated the value of this property, and that such over estimate was a fraud upon the purchasers.- We do not think that this contention is sound. The value of this property was at most only' a matter of ■opinion. The purchaser, as well as the vendor, could form an •opinion as to its value. In forming that opinion each party had a right to fix their own estimate of value.

If, in the opinion of the grantees, the grantor’s estimate was too high, they should not have accepted of his offer. The rule upon "this subject is correctly stated by Miller, Judge, in Chrysler v. Canaday, 90 N. Y., 279, as follows: “ The rule is well settled that a naked assertion by a vendor of the value of property offered for sale, even although untrue in itself, and known to be such by him, unless there is want of knowledge by the vendee, and the sale is made in' •entire reliance upon the representations made, or unless some artifice is employed to prevent inquiry or the obtaining of knowledge by the vendee, will not render the vendor responsible to the vendee for damages sustained by him.” There can be no well founded pretense in this case that the vendees purchased with entire reliance upon the declaration of the vendor as to the value of this property. The vendor, Harvey, made several personal examinations of the premises and had the assistance of his father, who was acquainted with this kind of property, and also the assistance and judgment of the expert, Walter McFarlan. Mor was there any artifice practiced by the grantor to divert the attention of the grantees from a full and careful examination of the property. The referee finds that the negotiations for the purchase of the property and the subsequent sale and mortgage thereof were conducted without fraud or misrepresentation on the part of any of the parties therefo. In Ellis v. Andrews, 56 N. Y., 83, Grover, J., in discussing the liability of the grantor for an assertion of the property sold, uses this language:

“ Upon the question of value the purchaser must rely.upon his own judgment, and it is his folly to rely upon the representations of the vendor in that respect; but in regard to any extrinsic fact affecting the quality or value of the subject of the contract he may rely upon the assurance of the vendor.” To the same effect is the case of Van Epps v. Harrison, 5 Hill, 63; also Hubbell v. Meigs, 50 N. Y., 480. We do not think that within the authorities, and the principle governing this class of actions, that the statement made by Cooper or his agent in reference to the value of this property can be regarded as fraudulent, or that the deed or mortgage is in any way affected by them. We have examined the rulings of the referee in reference to the receipt and rejection of evidence to which exceptions were taken by the defendants, and find no error in such rulings for which the judgment entered upon his report should be reversed. The remaining question raised on this appeal is as to the ruling and decision of the referee upon the question as to what passed under the mortgage. Upon this question the defendants insist that the machinery used in this mill was personal property, and did not pass to the mortgagee under the real estate mortgage. It is a familiar principle that the same rule obtains between mortgagor and mortgagee of real estate as exists between grantor and grantee. Ordinarily the character of property, whether real or personal, is determined by the application of these tests.

1. Actual annexation, which must be of a permanent character, except in case of those articles which are not themselves annexed, but are deemed to be freehold from their use and character.

2. Adaptability to the use of the freehold.

3. The intention of the parties at the time of making the annexation. In this case the machinery that was in the mill at the time of the sale, as between the grantor and grantee, constituted one of the chief features of the property for manufacturing purposes, for which it had been used, and for which manifestly it was to be used by the purchasers. For the grantor to have removed it after the purchase, on the ground that it was personal property, would practically have destroyed all that was valuable in contemplation of the purchasers for the purpose of manufacturing knit goods. Such machinery was therefore deemed to be part of the realty from its use and character.

It must also be deemed a part of the realty from its adaptibility to the use of the freehold. As to the machinery put in the mill after the purchase by the defendant and after the execution of the mortgage, its character must be determined by the intention of the parties. That intention-we think is clearly indicated by the manner in which the machinery was placed in the buildings and attached to the same by the owner of the fee of the mortgaged premises after the mortgage was given and while it remained in force against the premises. Permanent erections and fixtures made by a mortgagor after the execution of the mortgage, upon lands conveyed by it, become part of the mortgaged premises, Snedeker et al. v. Warring, 12 N. Y., ,170, and this case also holds that the same rule exists between mortgagors and mortgagees as would prevail between grantor and grantee. Tested, therefore, by the rule that would prevail in case of a sale of these premises, there seems little doubt that this added machinery, boiler and engine became a part of the real estate by being placed upon and attached to it, as shown in this case, unless the legal effect of their annexation was changed by the execution of the chattel mortgage and the statement of Cooper as found by the referee that the real estate mortgage did not cover the boiler, engine and machinery, and a bill of sale and chattel mortgage were executed by the parties respectively conveying the same.

It seems to be conceded by the defendants that but for the bill of sale and chattel mortgage this property would have passed by the deed and real estate mortgage, so far at least as it was in the mill at the time of the sale; but as to that placed therein after the execution of the deed and mortgage a different rule is claimed to exist, but we have shown upon the authority above cited that fixtures which would pass by the mortgage if on the premises before its execution would, as between the mortgagee and mortgagor, in like manner pass if placed on the premises after the execution of the mortgage. Snedeker v. Warring, supra. What, then, was the effect of the bill of sale and chattel mortgage as to changing the character of this machinery from real to personal property.

In Voorhees, Receiver, v. McGinnis, 48 N. Y., 278, the owner of a saw and grist mill erected a substantial building and placed therein a steam engine, boiler, shafting and gearing, which were constructed with especial reference to the place in which they were to be used, but without any intent on the part of the person making the improvement either of making them a part of the freehold or of removing them in the future, and gave a real estate mortgage upon the property.

Subsequently the boiler and machinery were removed for the purpose of having them replaced by a new boiler and new machinery, and while the new boiler and machinery were at the shop for repair the owner of the mill gave a chattel mortgage upon them, and after the repairs were completed and the mill was in running order he gave another mortgage upon them and other machinery. After the repairs and before the last chattel mortgage he gave another real estate mortgage on the premises, and the plaintiff acquired title under the foreclosure and sale on the two real estate mortgages. The holders of the chattel mortgages removed the machinery covered by these mortgages. Held, that although the mortgagor had no special intent .upon the subject, the facts disclosed that the boiler, engine, shafting and gearing were permanent accessions to the freehold. Applying the principle of that case to the facts in this, there seems to be a much stronger reason for holding that this machinery and fixtures covered by the chattel mortgage were a part of the realty, and passed under the real estate mortgage. In this case the right of no third party is involved. The object of "the parties, manifestly, was to confer upon the purchaser a valid title to all of this property, whether classed as real or personal, and a like object on the part of the mortgagor and mortgagee to create a valid security for the entire debt upon all of the property sold. Their misapprehension as to the legal effect of the annexation of and adaptability to the uses of this mill of the'machinery did not change the law or legal effect of the physical annexation of the same to this real estate.

It follows, therefore, -that the real estate mortgage attached to all the real estate and fixtures of which the property covered by the chattel mortgage was a part. On the whole case we see no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


author: Learned, P. J. Landon, J. Mayham, J.

text:
    The A. C. Nellis Co., App’lt, v. Arthur C. Nellis, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Manufacturing companies—Loan to a stockholder.
    " The General Manufacturing Act, Laws 1848, chap. 40, § 14, forbids a loan by a company to a stockholder. ' The defendant, who was president of a company organized under said act, through the connivance of its treasurer, borrowed money of his company upon stock as collateral to his notes. This was done under a resolution of the trustees authorizing the treasurer to loan its surplus upon good security. The stock was not such security. Subsequently the trustees called said loan and sold the stock which the defendant had pledged. In an action by them for conversion, Held, that the transaction was contrary to the statute.
    2. Same—Ratification.
    The sale of the stock was not a ratification by the trustees, since they could not ratify that which they could not perform in the first instance, and they were not by said sale estopped from suing for a conversion.
    3. Same—Restoration of security.
    The trustees were not bound to return to the defendant, before action, his stock. He was bound to return to the corporation its money in any event, whether he took it in defiance of the statute or as an ordinary borrower; and the effect of the sale of the hypothecated stock was only to return to the corporation its money pro tanto.

    (Mayham, J., dissents.)
    Appeal from j udgment dismissing the complaint
    This action was prosecuted to recover ten thousand dollars ($10,000) for the alleged wrongful conversion by the defendant of certain moneys belonging to the plaintiff.
    The complaint alleged the incorporation of the plaintiff under the act authorizing the formation of corporations for manufacturing, mining, mechanical and chemical purposes, and that the defendant was a trustee and stockholder in such corporation, and charged that in violation of his duty as such trustee and stockholder, and without lawful authority therefor, the defendant took, received, fraudulently misapplied and converted to his own use the money of the plaintiff in the aggregate to the amount of' $7,150.
    The answer admits the existence of the corporation, and that, defendant was a trustee and stockholder in the same, and alleges that the plaintiff loaned the money specified in the complaint to the defendant, took and held his notes for the same, with twelve hundred shares of stock in the company belonging to the defendant as collateral to such loan; and that the defendant had paid the interest and part of the principal on such loan, and that before-the commencement of the action plaintiff had called such loan and advertised and sold the stock held as collateral to such loan, and had received and retained the proceeds of the sums realized on such sale.
    The evidence discloses that the defendant held a majority of all of the stock of the company, and was at the time of the alleged taking of the money the president of the company and a member of the board of trustees.
    That before the receipt of the money by the defendant the board of trustees, by resolution, authorized the treasurer to loan the moneys of the corporation held in bank on good security; after this, resolution, which was adopted July 23d,1886, the treasurer, on July 24, 1886, loaned to the defendant $6,000, taking his note, payable on demand, and on return of the collaterals, and at the same time received as collateral to such loan ten hundred shares of the capital stock of this company, and on the 19th day of August the treasurer, upon like note and two hundred shares of the capital stock, made another loan to the defendant of $2,150. The money was-drawn hy the defendant on the check of the treasurer for the amount of these loans. . For the conversion of the money represented by these transactions this action was brought. Upon these undisputed facts the trial judge dismissed the complaint.
    Bacon, Leeds & Van Steenburgh, for app’lt; Wilmot & Gage (Z. S. Westbrook and H. V. Borst, of counsel), for resp’t.
   Learned, P. J.

This is an appeal by plaintiff from a judgment dismissing the complaint before the conclusion of the plaintiff’s testimony.

The plaintiff is a, corporation under the act of 1848 for carrying on the seed business; capital, $50,000, divided into 2,000 shares, twenty-five dollars each. The defendant originally had 1,200 shares. The buildings were destroyed by fire in June, 1886, and about $25,000 was received in cash from the insurance before the annual meeting in July, 1886.

There was evidence that prior to this meeting the deféndant had agreed to make one Howland and one Dunning trustees, and to make Howland treasurer at a salary of $7,000; that Howland was to lend money to defendant, “ and fix it in such a way that it would not be visible on the books and still appear to be all legal.” At this meeting defendant stated that he had been obliged to raise money, and had sold some stock to Howland and Dunning, on condition that they should be made trustees. This was done. The business was moved to New York, and from that time defendant was the active manager, or, as the trustees said, “ he was the company in effect.”

At a meeting of the trustees in New York, July 23, 1886, defendant was president and was elected president; Howland treasurer. It was voted: “ There being a larger cash balance in the bank than will be required to be used for a long time, resolved, that the treasurer be authorized to loan such surplus as in his judgment is to the advantage of the company, taking good and sufficient security for the amount loaned.”

Howland, as treasurer, gave defendant checks of the company as follows: July 24, $2,000; July 28, $1,000; August 4, $3,000; August 19, $1,150. These checks were drawn to order of cash. The stub was marked “ on account of loan; ” the name of the borrower not given. On the books the amounts are charged to cash for bills receivable ; for whom is not stated.

July 24, 1886, defendant made his note to plaintiff’s order for $6,000, stating that there was deposited as collateral 1,000 shares of the stock of the company. August 19, 1886, he gave another similar note for $1,150, reciting the deposit as collateral of 200 ishares of the same. This is all the stock defendant had ever held. There are other circumstances tending to characterize the transactions as fraudulent. This pretended loan to defendant was plainly not authorized by the vote of the board. This was not a loan on good and sufficient security; and defendant must have known this, as is evidenced by the concealment of the transaction and other proof.

In April, 1889, some of the stockholders, having heard of these transactions, had an interview with defendant in which he admitted the transactions and produced the notes from an iron box in the safe, which was locked, and to which he only had a key.

In June, 1889, a meeting of the trustees was held, at which defendant and Howland were present. It was “Resolved, that the treasurer of this company be directed to call the loan made to A. C. Nellis and solicit cash offers for the hypothecated stock and report to the next meeting.” Pursuant thereto the stock was sold at auction and brought about $520, which went into the treasury.

This action is brought to recover the money received by defendant on the ground that it was unlawfully converted. The learned justice dismissed the complaint on the ground that by foreclosing and selling the hypothecated stock the plaintiff had satisfied the loan and could not now claim that the transaction was illegal.

The defendant claims, as we understand, that if the plaintiff would recover against the defendant for the wrongful taking of its money, it must first surrender to him the security which he gave for the money thus wrongfully taken ; that when one under the pretence of borrowing obtains by fraud money from another and pledges security therefor, the lender cannot keep the security and enforce it and recover for the fraud.

We do not know whether the defendant would insist that if no security had been given, and if he had afterwards made a payment on his note, the reception of the money, so paid, would have prevented a recovery for the fraud. If a thief steals money and afterwards returns a part, does the acceptance of that part prevent, a suit for the conversion ?

There can be little doubt that this money was wrongfully taken. The statute forbids a loan to a stockholder. Section 14, chapter 40, Laws of 1848. The fact that there is by that section a special liability of the officers to creditors does not take away the prohibition. And the facts of this case are sufficient to satisfy a jury that the transaction was a fraudulent conversion. Ihdeed this was not denied in the nonsuit.

It is not disputed that the trustees who voted at the meeting of June, 1889, knew then of the original transaction and knew that the stock was by defendant attached to his notes as collateral thereto. And the question is whether selling that stock estops the company from treating defendant’s acts as a conversion.

It is plain that a board of trustees cannot ratify an act they could not lawfully do in the first instance. The statute says: Ho loan of money shall be made by any such company to any stockholder therein.” The principal object of that provision is to prevent a reducing of the capital, under cover of loans to stockholders. It is intended for the protection of creditors. How if Howland, the treasurer, was forbidden to make these loans to defendant, so were the trustees. But that which they are by the statute forbidden to do, they cannot ratify after it has been done. If any authority is needed for this, see Peterson v. Mayor, 17 N. Y., 449; Brady v. Mayor, 20 id., 312.

Whether under the decision in Billings v. Trask, 30 Hun, 315, this transaction with defendant was a loan, so that the officers would be liable to creditors, we need not inquire. In that case there was plainly no loan.

But the defendant urges that the plaintiff by selling the stock has ratified the contract, in spite of the statutory prohibition. He cites the familiar doctrine, stated with numerous authorities in Baird v. Mayor, 96 N. Y., at 599, etc., The law not only requires-a disaffirmance of the contract at the earliest practical moment after the discovery of the cheat, but a return of all that has been received under it and a restoration of the other party to the condition in which he stood before the contract was made. To retain any part of that which has been received under the contract is incompatible with its rescission.” This doctrine was there applied to executory contracts for the sale of personal property. And the question related to the rescission of the contract, not to a case where the transaction was the fraudulent obtaining of property from the plaintiff. The defendant here took plaintiff’s money. Whether he took it lawfully or unlawfully, in either case it was his duty to repay it. And it was right for him to secure that repayment, whether he was a mere borrower or a fraudulent converter of plaintiff’s property. Perhaps the obligation was even stronger m the latter case. Why then should not the plaintiff avail itself of these securities, whatever was the nattire -of the transaction.

It is true, as held in Terry v. Munger, 121 N. Y., 161; 30 St. Rep., 746, that where personal property has been converted, if the owner sues for the value on an implied contract to pay for the goods and recover judgment, he treats the title as having passed to the defendants and, therefore, he cannot in another action recover damages for the conversion. The taking of money is not entirely analogous with the taking of chattels. There was no specific money taken in this case; and no question could arise as to the. title to specific property. Even if plaintiff had recovered on defendant’s notes it could not be considered, as in the case referred to, “ as having in effect sold this very property.” That is to say, a recovery on the notes would not, in effect, be a sale of the money taken by defendant. It would be a decision that the money had been either borrowed or unlawfully taken.

But whatever might be the effect of a judgment upon the notes or even of a suit commenced thereon, Conrow v. Little, 115 N. Y., 387; 26 St. Rep., 527, neither exists in this case. The plaintiff has only enforced these securities in order to collect what the defendant ought to pay it; what he ought to pay the plaintiff if he legally borrowed the money, and what he ought to pay it if he unlawfully took it.

Let us suppose that defendant had taken an amount of cash in bills from the drawer of the company, and had left in place thereof certain securities. Might not plaintiff have sold those securities and then sued defendant in tort to recover the balance ? And might it not have done this if he had pinned his promissory nóte to such securities ?

We see no injustice in the view we have taken. The defendant has had the plaintiff’s money and ought to restore it. It seems to us that there was evidence on which it might be found that he took it unlawfully. The sale of his securities has in no way injured him; and has in no way affected his position towards the plaintiff. So far as the avails have gone, his liability is reduced. His unlawful act, however, remains, and for it he should answer. The remedy which the plaintiff took in selling this stock is not inconsistent with the position that he unlawfully and fraudulently took its money. There is no election of a remedy inconsistent with this action, unless it be held that one who takes money unlawfully cannot give security for its return.

Judgment reversed, new trial granted, costs to abide event

Landon, J.

I concur with the presiding justice. It might have been found as a fact that the defendant had for a short time the practical control of the corporation, and did then abuse his temporary power by converting'its funds to his own use under the guise of a loan, coldrably secured by inadequate collaterals. The corporation subsequently did try to mitigate its loss by selling these collaterals. But this was no ratification of the transaction. An individual, competent to contract, may be beguiled and cheated, and subsequently ratify the voidable contract he was thus induced to make. But in this case when the defendant took the money he did not beguile or deceive the corporation; he effaced its power and will and capacity to act for itself: he held its hands and spoiled its treasury. Such a transaction cannot be ratified, since it never could have been originally authorized. After applying the proceeds of the collaterals, the balance unsatisfied represents the damages sustained by the corporation from defendant's wrong, and, upon the case assumed, plaintiff ought to recover these damages.

Mayham, J.

(dissenting).—If this action were prosecuted between individuals competent on both sides to contract, the transactions upon which this action was brought would not amount to a conversion of these funds, and an action for conversion of the sale would not be sustained, and a complaint sounding in tort would be properly dismissed. Allen v. Allen, 52 Hun, 398; 24 St. Rep., 477. Same case affirmed. In that case it was held that in a complaint sounding in tort, the tortious act must be proved to entitle the plaintiff to recover, and that proof of a breach of contract was not sufficient to justify a recovery, and the complaint was dismissed by the trial judge, and that determination was sustained on appeal. But it is insisted that the transaction in this case was tortious from the beginning; that the plaintiff by its trustees had no power through its treasurer to make such contract as was made with the defendant and that they were alike incapacitated from ratifying such a contract after it was made, and that the defendant is not therefore protected from the charge of a wrongful conversion by the contract and by the giving of his note with the collaterals, and that the adoption of that act by the plaintiff by receiving the interest paid, and the payments on the principal, and finally by the foreclosure of the lien on the stock pledged as collateral to this advancement to the defendant, did not estop or preclude them from treating the contract as absolutely void and as if it had never been made, and holding the defendant-liable as for a wrongful taking and conversion of this money.

This contention is based on the provisions of § 14, of chap. 40, of the Laws of 1848, which provides as follows: “Nothing but money shall be considered as payment of any capital stock, and no loan shall be made by any such company to any stockholder therein, and if any such loan shall be made to a stockholder, the officers who shall make it or who shall assent thereto shall be-jointly and severally liable to the extent of such loan and interest for all debts of the company contracted before the repayment of the sum so loaned.”

While the statute prohibits the stockholders and officers of this company, which was organized under the provisions of the chapter above referred to, from loaning its funds, it does not in express terms declare that such loan shall be void,but it imposes upon a stockholder or officer taking part in such unauthorized loan a liability for all of the debts of the corporation contracted before such loan is paid. This is in effect a recognition of the validity of the loan, and imposing a penalty for the illegal act upon the officers or stockholders making such loan.

The-act itself furnishes a-remedy for its violation, by giving to the creditors a claim against the trustees and officers who loan the money in violation of its provisions.

If the statute made the transaction void, then there could be no-loan in fact or in law, and that part of § 14 which provides a-remedy in case of a loan in violation of its provisions would in all cases be wholly inoperative, because in no case could there be a, loan to a stockholder, as the void act would not be a loan. In Billings, Receiver, v. Trask and Robinson, 30 Hun, 314, it was held that the provisions of this section applied only to cases where there was a loan in law or in fact in violation of its provisions, and the court says: “It is clear that to establish a right of action under the statute on behalf of a creditor, it is necessary to show that the transaction out of which it is claimed to have arisen was both in law and in fact a loan of money,’ and what is meant by those words is an actual loan of money in such a form as to create an indebtedness to be at some time repaid, so that a liability for payment by the borrower is created.”

This reasoning of the court clearly establishes the legal proposition, that a binding contract can be made between the company and the stockholder, to whom a loan is made; and if such a contract can be made, then the borrower in this case got the money under a contract, and his possession of it was not a conversion and an action cannot be maintained against him for a wrongful conversion. It is quite true that this manner of loaning the plaintiff’s money is condemned by the statute, and the parties who participated in it are subject to the liabilities imposed by the statute, and become personally liable to the creditor, but there seems to be no authority for holding that the contract for the loan was so far void as to the plaintiff that an action for the conversion of these funds may be maintained by it on the ground that the loan conferred no title in the borrower, and at the same time valid as a loan of money for the purpose of making the parties personally liable for all debts of the company contracted before the repayment of the money loaned.

But it is insisted by the defendant that the plaintiff by its present board of trustees ratified this act of its treasurer and the defendant by accepting 'the stock hypothecated as security, and foreclosing its lien upon the same, and retaining and appropriating to its own use the proceeds thereof. To this proposition the plaintiff makes answer, that the-trustees of a corporation can no more ratify an illegal act of its officers, than it can perform the original illegal act The contention of both parties upon this subject may under certain conditions be sound in the abstract; but not when applied to the same state of facts. We have seen that the loan to a stockholder did not render the act absolutely void. It being in violation of law, it might have been avoidable if the company had moved promptly, and tendered back the collaterals- and notes, and demanded the return of the money, but as no such course was pursued it is not necessary to determine that question here; but the plaintiff elected to retain the notes and collaterals and realize on the securities held as collaterals, after full knowledge of the illegal acts of the defendant and the treasurer of the plaintiff in making this loan; and we think that by that acquiescence coupled with the benefits, which they received and retained under this contract, they are estopped from now claiming that the contract was void ah initia and from recovering against the defendant in an action for the wrongful conversion of the money loaned. Herman in his law of Estoppel lays down the rule that corporations as well as individuals may be estopped by their acts.

“ A corporation may become bound and estopped otherwise than under a corporate seal, and their undertakings and admissions may be evidenced otherwise than by records, resolutions, by-laws, ordinances, or other written documents. Technical as well as equitable estoppel apply to corporations as well as to individuals. The ratification of a contract by a corporation may be inferred by facts attending the transactions, and where persons assuming to act as agents of a corporation, but without legal authority, make a contract, and the corporation receive the benefits of it, and use the property acquired under it, such acts will ratify the contract and render the corporation liable thereon." Herman's Law of Estoppel, § 555, p. 522.

It is true that where the illegal act complained of affects third persons not parties to the act, and who are injuriously affected thereby, a subsequent ratification of the parties to the original illegal act will not bind such third persons so injured. Brady v. The Mayor of N. Y., 20 N. Y., 319. But this case does not, we think, go to the extent of holding that a private corporation can by adopting and appropriating to its own use the fruits of an illegal contract, with full knowledge of the facts, treat the contract as valid for the purpose of retaining the benefits to be derived from it, and at the same time repudiate it as to the .other contracting party so as to hold him responsible for the wrongful conversion of the property received by him under the contract, which the other contracting party seeks to affirm as to itself and repudiate as to him. I have found no case where the directors or trustees of a private corporation have been permitted to affirm an illegal contract, so as to retain the benefits of it to the corporation and at the same time repudiate it as to the other contracting party, and hold him liable for the conversion of the property received by him under it If we would hold this transaction to be a contract between the plaintiff and defendant, the rule is elementary that even if it may have been fraudulent it cannot be rescinded, and the consideration recovered back by the party defrauded, until the party seeking to rescind restores, or offers to restore, all he received under it.

In Cobb v. Hatfield, 46 N. Y., 533, 537, the rule is very distinctly laid down, that to retain any part of what has been received upon a contract is incompatible with its rescission, and to the same effect is Masson v. Bovet, 1 Denio, 69, and in Gould v. Cayuga County Bank, 86 N. Y., 75, 79, the court says: One who seeks to rescind a compromise of a disputed claim upon the ground of fraud must promptly, upon the discovery of the fraud, restore, or offer to restore, to the other party whatever he has received by virtue of it, if any, in full; the tender must be without qualification or condition.” Within these cases we think the plaintiff has not put itself in a position to treat this transaction as void from the beginning, and hold the defendant as guilty of a conversion of these funds.

We are referred by the plaintiff to Thomson v. Sanders, 118 N. Y., 252; 28 St. Rep., 924, as an authority that restoration was not necessary to entitle a plaintiff to recover, but that was an action for damages for fraud, and not an action for a wrongful conversion, and as we think stands upon a different principle. On the whole case I think the learned trial judge was right in holding that this action in the form in which it was prosecuted cannot, under the facts proved on this trial, be maintained; and that the nonsuit was properly granted.

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


author: Learned, P. J. Mayham, J. Landon, J.

text:
    Minerva J. Beaver, Executrix, App'lt, v. Charles C. Beaver et al., Adm’rs, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Gift—Money in sayings bank—Parent and child.
    A father intended to give money to his minor child, and to that end deposited the money in a savings bank to the credit of said child. The child had no testamentary or statutory guardian. The father retained the pass book. Under the rules of said bank the money was thereafter payable to the child only.' Held, a complete gift.
    2. Same—Retaining bank book.
    The father, as natural guardian of the child, properly retained the custody of the bank book, and his failure to deliver it to the child did not invalidate the gift.
    (Landon, J., dissents.)
    Appeal from judgment in favor of the defendants entered upon the decision of the court upon the trial without a jury at the Ulster circuit in J une, 1890.

      F. L. & F. A. Westbrook, for app’lt; Lawton & Stebbins (A. T. Clearwater, of counsel), for resp’ts.
   Learned, P. J.

The court of appeals, when this case was before it, seems to have taken judicial notice of a practice that persons deposit money in savings banks “ to the credit of real of fictitious persons, with no intention of divesting themselves of ownership.” If such a practice exists we find no proof of its existence in this case. So testimony was given showing such a practice, and no reason is shown why John 0. Beaver should have had any of the tricky objects in view which are mentioned by the court of appeals.

The charter of the bank permitted deposits to the amount of $5,000. Laws of 1851, chap. 152, § 6. And it does not appear that John O. Beaver’s deposits had previously approached that sum. And since there might have been the laudable motive of parental affection, we do not see why a less praiseworthy motive should be assumed. The application to the bank to receive the deposit was in the name of Asahel Gr. The request in the application was to receive the money from him and to open an account with him. It states his age, place of birth and residence. Testimony was given showing that it is the custom for the person who brings the money to sign the application. Hence John 0. signed the application, although it was made in behalf of Asahel Gr. The signature of John 0. would be properly made by him as natural guardian of his son. The additional proof given on the second trial clearly establishes that John 0. intended to give this money to Asahel Gr., as is found by the learned justice. We are relieved, therefore, from the necessity of attributing to him any of those evil intentions, such as evading rules of the bank or escaping taxation, which the court of appeals seem to suppose prevail “in the great majority of cases.” And the ground that there was no evidence of a gift, held by that court in the former trial, no longer exists. We know now by positive proof what was the intention of John 0. when he caused this money to be deposited to the credit and for the benefit of Asahel G. Starting, then, with the fact that John 0. intended to give this money to Asahel G., we must inquire whether any rules of law compel us to defeat this lawful intention. And we must observe that the intention was not to make a future gift, but to give at that time. It is found by the learned justice that the moneys were deposited by John 0. with intent to pass the title to Asahel. The words “payable to John 0. Beaver,” which had been in the account book and in the pass book, were erased béfore the pass book was delivered by the savings bank. As Asahel G. was the son of the donor, the intention ought to be carried into effect, if consistent with rules of law.

The only objection is that John 0. did not deliver to Asahel G. the pass-book.

In Martin v. Funk, 75 N. Y., 134, the donor deposited money in a savings bank in her own name, adding the words, “In trust for L. W.” The donor retained the pass-book until her death, and the donee was not notified of the gift until after that event. In an action for the money by the donee (or cestui que trust) against the bank she recovered. That case settled, first, that notice of the gift was not necessary; second, that retention of the pass-book in that case and in similar cases did not prevent the gift from taking effect

It appears, too, by that case and by the similar cases of Willis v. Smyth, 91 N. Y., 297; Mabie v. Bailey, 95 id., 206; Scott v. Harbeck, 49 Hun, 292; 17 St. Rep., 690, that the trust in such cases is treated as what is- sometimes called a passive trust. For the cestui que trust is allowed to recover the trust funds, so that the so-called cestui que trust is held to be, at least after the decease of the donor, the absolute legal owner. Of course, if there were an active trust, the cestui que trust would not have the legal title. And on the death of the trustee, under the present statute, the property would not go to his personal representatives, but to the court to be managed by a new trustee. Laws of 1882, chap. 185. But in these cases, where the language of the deposit was as above stated, it has been held that the person for whom the deposit was held in trust was entitled to recover it as legal owner. Therefore, ■the original transaction has been considered by the courts to be practically a gift by the donor to the person named as cestui que .trust. And the transaction is described as a gift in Martin v. Funk This is important, because it shows that the transaction is practically the same whether money is deposited in the name of ¡the donee, or in the name of the donor in trust for the donee.

What then is the reason why this mode of giving has been held to be effectual, notwithstanding the donor retained the book? "Clearly this. The donor was, after the gift, the legal custodian of the voucher. Therefore, there was no person other than himself to whom the donor could deliver the book. Thus it is said in Martin v. Funk:‘ ‘She must be deemed to have retained it as trustee. The book ■was not the property, but only the voucher for the property which, after the deposit, consisted of the debt against the bank.” Ho tice this remark: “ The book was not the property.” The donor then had parted with her property by depositing it. The property after the deposit consisted of the debt against the bank. The bank book ■or voucher showed to whom the debt was payable, and possession -of the voucher did not make the debt payable to the possessor. 'To whom, then, should the donor in a case that of Martin v. Funk -deliver the voucher? The donor is himself trustee and as such as entitled to the custody of the voucher. If in such a case the ■donor “A.” had made a deposit in the name of “B.” in trust for C.,” then it might be said that a delivery of the voucher to B. would be necessary.

How the principle thus settled in these cases is applicable here. Asahel Gr. was a minor. John 0., as father, was natural guardian. He was entitled to the custody of this voucher for property belonging to his minor son. It is not meant by this that as such ■guardian he could dispose of the property of his son. But it is plain that, in the absence of proof that any one else had been appointed guardian, he was the proper person to have the custody of his voucher. Let us suppose that Asahel Gr. had been only a year old, what could JohnO. have done with the pass book when, for the purpose of a gift, he had deposited this money in Asahel’s name. Should he tie the book around the infant’s neck or fasten it to its apron string? Plainly he could make no delivery of the hook to a mere infant. Or if any other person had made the gift, would not such a person have delivered the book to the father of the infant? To deliver the book to a mere infant would be folly. And the same principle must apply to a minor who is older. When the donee is a minor, younger or older, in the absence of any appointed guardian, the father must be the natural custodian •of any such voucher.

There are cases in Massachusetts holding that an acceptance of a gift, or notice to the donee, is necessary to complete the gift. But in Gerrish v. New Bedford Ins. for Savings, 128 Mass., 159, it is pointed out that the decision in Martin v. Funk, ut supra, differs from the view of the Massachusetts court and holds a deposit in trust to be valid though the donee know nothing of it.

It is sufficiently established in this case, and is so found, that John 0. at the time of the deposit made it “ with the purpose and/ intent that such money should thereafter be and remain the property of said Asahel Beaver.” It is proved, if proof were necessary,., that it is very general for parents to bring money and deposit it. in the name of their minor children. So that the only question is whether the continued possession by John 0. of the voucher defeats his intention, as a matter of law.

If he had had this money deposited in his own name, adding the words “ in trust for Asahel G-. Beaver,” and had retained the voucher, this would have been a valid gift to Asahel, thoughAsahel did not know of the transaction. Martin v. Funk. It would have been said: John 0. retained the voucher as trustee. How, when, with the same intent and purpose, he deposits the money absolutely in Asahel’s name, and retains the voucher, it is-' argued this is no gift. The distinction between the two cases is thin, very thin, when used to defeat the laudable intent of a father to give money to a minor child. And if the distinction is. sound, then a father cannot validly give money to his minor child by deposit in a savings bank except through the fiction of calling himself trustee. If the retention of the voucher in the Funk-case was held to be in the character of a trustee, why was not the retention by John 0. in this case held to be in his character of guardian by nature after his intention to give the money has been, proved as a fact ?

Of course the great object of requiring delivery is to mark the distinction between a mere intention to give at some future time,, and a present act of giving. That was marked by the deposit inAsahel’s name, with the intent, now established by other proof, of making a gift. The consideration is love and affection. The-transfer is made by putting the money in the bank payable toAsahel and to no one else. The bank by its rules agrees to endeavor to prevent frauds and impositions and yet declares that payments to a person presenting the book shall discharge the institution. But that rule does not authorize the bank negligently to pay to a person other than the one in whose name the account-stands. Appleby v. Erie Co. Sav. Bk., 62 N. Y., 12. The courts have gone even further than this, and have said that payments-to a stranger without authority of the creditor are not valid. Smith v. Brooklyn Sav. Bank, 101 N. Y., 58. And under the decision in this last case John O. Beaver could not, without the written order of Asahel, draw any of this money, although he did have possession of the pass-book.

The language of the rules of the bank construed in that case is. similar to that of the rules of this bank. And the court say, speaking of the pass book, “ its possession constitutes in itself no-evidence of a right to draw money thereon.” The mode of making payments is provided for by the rules, viz., personally, by order in writing and by letters of attorney. It was then only by Asahel personally or by his written order or his letters of attorney that this money could be drawn. If it is said that the donor must part with control over the gift, what control did John O. retain over this money? It was not payable to him. The pos.session of the bank book did not authorize him to draw the money without authority from Asahel. Crawford v. West Side Bank, 100 N.,Y., 50.

The case of Schoenwald v. Metrop. Bank, 57 N. Y., 418, is referred. to in the Smith case above cited, and it is said that in that 'Case the language of the contract was substantially different. Whether that case can stand against the decision of Smith v. Brooklyn Sav. Bank, we need not inquire. It is enough that the rules of the bank in the present case bring it within the later decision. And that under that decision John 0. could not, by virtue of possession of the pass book, draw out any of this money. If the possession of the pass book did not authorize him to draw the money, then such possession gave no control over the money, the thing given.

In Matter of Crawford, 113 N. Y., 560; 23 St. Rep., 722, the -deposit of money in a bank to the credit of another person was held to be a gift. As to the bonds in that case, they were coupon bonds payable to bearer, and therefore passed by delivery. They had not been delivered, and the court say: “ Nothing appears in the case as to what was the effect of the so-called registry.” And the registration had certainly no effect on the coupons which remained still payable to bearer.

The pass book in the present case was not negotiable paper, :and the money entered on it was payable to no one but Asahel. And payment by the bank to Asahel (when of age) if not before ■ (see the charter of the bank), would have discharged the liability of the bank. He was the depositor, and the agreement of the bank was with him. It is immaterial from whom the consideration came. The promise was to Asahel. He could adopt it even '.though not a party. Lawrence v. Fox, 20 N. Y., 268.

It seems to us that this subject of the delivery of the gift 'was not so decided in the court of appeals that the remarks in the opinion are controlling on the new and most important facts presented on the second trial, viz.: the intention of John O. to make a present gift, and bis intention that the money should become and remain the property of Asahel. Nothing was said as to the possibility of making an actual delivery of the voucher, and nothing as to the inability of John 0. thereafter to draw out the money legally.

We think, therefore, that the judgment should be reversed, and •a new trial granted, costs to abide event

Mayham, J.

I think, on this trial, the plaintiff has substantially overcome the objection of the court of appeals in this case reported 117 N. Y., 421; 27 St. Rep., 405. The ground assumed for a reversal in that case was that the plaintiff had failed to prove the intention on the part of John O. Beaver to make a gift to his son at the time of making the deposit in the bank, and that the retention of the bank book by him was evidence of a want of delivery.

The court now, upon sufficient evidence, finds that it was the intention of John O. to make a gift of the money deposited at the time of the deposit, and I think that my Brother Learned has established most successfully and completely, upon principle and authority, that the retention by the father of the bank book when the gift is made or intended to be made by him to his infant son, is as much an executed gift as if he had delivered the book to the son or to some other person for the use and benefit of the son. He being the natural guardian and custodian of the property of his infant son in the absence of any general guardian, could not defeat his own executed gift by retaining the bank book.

Landon, J.

(dissenting).—Upon the facts as now found, we-think the trial court was obliged, by the opinion of the court of" appeals upon its review of the former trial, 117 N. Y., 421; 27 St. Rep., 405, to find in favor of the defendants. The court of' appeals said, page 429 : “We are of opinion that there is lacking-in this case two of the essential elements to constitute a gift by John O. Beaver to his son of the money deposited July 5, 1866,. viz., an intent to give, and a delivery of the subject of the alleged gift.” The plaintiff upon this trial has supplied the evidence of' the intent to give, but no advance whatever has been made in supplying evidence of the delivery of the subject of the alleged gift. All the facts cited by the court of appeals in its opinion, page-432, to show that there was no proof of delivery are unchanged.

The learned;counsel for the plaintiff now earnestly contends-that because John O. Beaver intended by making the deposit to - the credit of Asahel, and did say that he had made a gift to him of the amount, that it should have been found as a fact that the-gift was complete. There are cases, of which the early case of' Grangiac v. Arden, 10 Johns., 293, is one, in which the fact of" delivery has been found from the declarations of the donor, when the other evidence in the case failed to show delivery. But as we-interpret the opinion of the court of appeals, the established fact. of the non-delivery of the pass book, and the continued dominion of John 0. Beaver over the deposit, resulting from his form of making the deposit, his possession of the pass book, and the-rules of the bank, which formed part of the contract of deposit, require the finding that there was no delivery of the subject of' the gift. The effect of these facts is that the intent to deliver re- - mained unperformed. The judgment must, therefore, be affirmed,. unless some error to the prejudice of the plaintiff occurred upon - the trial. The burden rested upon the plaintiff to show the delivery of the subject of the gift. Clearly so, after the- particulars of the deposit had been shown by the cross-examination of her ■ witnesses. Under the circumstances of this case, it was needful to show the delivery by John to Asahel of the pass book, or some equivalent act. So the court of appeals held. This the plaintiff had not done and could not do. The defendants, however, called several witnesses whose testimony tended to show not only John 0. Beaver’s occasional custody of the pass book, but his continual custody of it.

In view" of the plaintiff’s failure to prove delivery of the passbook it can not be important whether the defendant’s witnesses who were unnecessarily called to establish the negative were competent or not But if we assume that delivery of the pass book might have been inferred from John 0. Beaver’s declarations, if there were no evidence except that extracted from the plaintiff’s witnesses, and this was probably the theory of the defendants, then it was material for them to show who had the pass book. Among other witnesses the widow of John 0. Beaver testified, under objection based upon § 829 of the Code, that on the day the deposit was made her husband and herself went together to Kingston, some seven or eight miles distant from their home; that her husband had the money in his pocket; that Asahel, then a lad of seventeen, remained at home; that she did not go with her husband to the bank, but that he brought the pass book home with him, and thereafter and until her husband’s death the book was kept in the bedroom which she and her husband occupied ; that she and her husband or both of them had the possession of the book. The substance of this testimony is that she saw her husband have the book on the day of the deposit and saw where be afterwards kept it, and that he did keep it until his death. Strictly speaking this was the unilateral act of the husband which the wife observed. There is no necessity to infer from it that the husband ever delivered the book to his wife or that she was in any way such a participant in its custody as to make his custody of it derivable from or through any transaction between the two. Her testimony therefore falls neither within the spirit of the prohibition nor within its letter. As the book was kept in the bed room of herself and husband, she doubtless often performed some acts of care respecting it, just as she may have done in respect of the furniture in the same room; but such acts on her part supply-no defect in the completeness of the husband’s custody of the book as shown by his placing it and keeping it in that room. His custody gains no support from any transaction between himself and wife touching the book, and if any such transaction may be inferred from the testimony of the wife it is incidental and collateral and is wholly inconsequent.

The widow testified that she rode to Kingston with her husband on the day of the deposit; that undoubtedly was a transaction between herself and husband, but it was testimony incidental to the material part of her testimony ; if the material part of her testimony was competent, it would be carrying the exclusion of § 829 beyond reason to condemn the material because it was incidentally connected with testimony which was justly regarded as merely incidental and preliminary.

Before the testimony of the widow of John 0. Beaver was received, she executed and delivered to Charles C. Beaver an assignment of all her interest in the subject matter of the action. She thereby ceased to be “ a person interested in the event,” and as that was the only disqualification under which she rested, its removal made her competent. This practice is open to abuse, but as it is authorized by authority we must recognize it. Matter of Wilson, 103 N. Y., 374; 3 St. Rep., 613; Loder v. Whelpley, 111 N. Y., 239 ; 19 St. Rep., 631. It disposes of the objection to the testimony of Alice J. Beaver.

The judgment should be affirmed, with costs, udgment reversed and new trial granted, costs to abide event.


author: Pryor, J.

text:
    Susan Treanor, Resp’t, v. The Manhattan Railway Co., App'lt.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    1. Negligence—Accident—Elevated bailboads.
    Shoveling the refuse of the drip pans of an elevated railroad into wagons in the street below without warning to passengers on said street, is negligence sufficient to render the railroad liable for injuries sustained by a passer by, caused by a blow from a bottle which was among such refuse.
    2. Evidence—Privileged communications—Code Civ. Pbo., § 834.
    The provision of § 834 of the Code of Civil Procedure, disqualifying a physician or surgeon from disclosing any information obtained in attending a patient, is waived by the patient’s giving testimony as to his physical condition at the time in question.
    Appeal from judgment of the general term of the city court, affirming a judgment on a verdict. Action for injury to plaintiff’s person caused by a blow by a bottle thrown by defendant’s servants from its elevated railway into the street below. At the time plaintiff was walking along the crossing.

      Charles D. Ridgway, for resp’t; Joseph H. Adams, for app’lt.

       Reversing 39 St. Rep., 186.

   Pryor, J.

On this appeal we have no jurisdiction to review the evidence, except to ascertain if it be sufficient to sustain the verdict; that is, sufficient to authorize the inference of defend- ' ant’s liability.

Plaintiff alleges that the bottle was thrown “ carelessly and negligentlybut it is a question whether negligence be an essential element in the cause of action. The cause of the injury, i. e., throwing the bottle, was the voluntary act of the defendant. “ Looking into all the cases from the Year Book in the 21 Henry VII, I find the principle, to be that if the injury be done by the act of the party himself at the time, though it happen accidentally or by misfortune, yet he is answerable.” Grose, J., in Leame v. Bray, 3 East, 599. “ Though a man do a lawful thing, yet if damage do thereby befall another, he shall answer it, if he could have avoided it. Lambert v. Bessey, Thos. Raymond, 423 ; Weaver v. Ward, Hobart, 134; Underwood v. Hewson, 1 Strange, 596. And this ancient principle of liability appears to be still the law of New York. “ Where the injury is not the effect of an unavoidable accident, the person bv whom it is inflicted is liable to respond in damages.” Marcy, J., in Bullock v. Babcock, 3 Wend., 391. In an action against the colonel of the Seventh regiment for an accidental wound to a spectator by a shot from a gun supposed to be unloaded, the plaintiff had a verdict, and on appeal frorn the judgment, Denio, Ch. J., said : “ I am of opinion that the judge might properly have instructed the jury that the evidence that the defendant had commanded the firing, and that one of the men fired a gun charged with a ball, by the discharge of which the plaintiff was wounded, was sufficient to sustain the action, whatever precaution the defendant and his subordinate officers had taken to provide against the accident.” Castle v. Duryee, 2 Keyes, 169, 174.

The law is propounded otherwise in Massachusetts. Brown v. Kendall, 6 Cush., 293; in Connecticut, Morris v. Platt, 32 Conn., 75; and by the Federal supreme court, Nitro-Glycerine case, 15 Wall., 524.

Assuming, then, the rule of liability as enunciated by these courts, namely, that an injury resulting from mere accident is not an actionable wrong; and that the measure of care against an accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own,” Field, J., 15 Wall., 524, we are still of opinion that the evidence was ample to justify the inference of negligence against the defendant. The mode in which the defendant discharged the contents of its drip pans, namely, by shovelling them from an elevation of fifteen feet into carts standing near the cross-way of a street in a populous city, when among those contents was a missile capable of inflicting serious injury on pedestrians below, was in itself sufficient to warrant an inference of the absence of the care and caution which the law exacts. The evidence discloses that the refuse in the drip pans might have been lowered in baskets; and there is no pretence of warning to passengers along the street. “ Instead of depositing the snow incumbering the roof in the yard attached to the premises of defendant, it was cast into the street, without any warning of danger being given to passers-by. It was negligence in the highest degree to throw snow and ice from the roof of a building into a thoroughfare of a crowded city, without using some precautions against accident” Wright, J., in Althorf v. Wolfe, 22 N. Y., 359.

Supposing the proof sufficient to sustain the inference of negligence, still defendant impeaches the judgment for errors upon offers of evidence.

To aggravate the amount of her recovery the plaintiff testified minutely and circumstantially to the effects of the blow upon her physical condition, and disclosed to the jury, without reservation, all the ill consequences of the injury to her health and comfort. Thereupon the defendant called the physician who had attended the plaintiff, and propounded to him this inquiry: “ What did you discover as being wrong with her head on the 16th of July, 1889 ? ” Plaintiff objected to the question and the court excluded it; to which ruling the defendant duly excepted.

The only conceivable ground for the rejection of the evidence is its assumed incompetency under § 834 of the Code of Civil Procedure, which forbids a physician or surgeon from disclosing “ any information which he acquired in attending a patient.” But, § 836 provides that upon an express waiver by the patient the evidence becomes admissible; and the question is, does the record before us exhibit such waiver by the plaintiff.

Although the statute prescribes an express waiver, the court of appeals has decided that it may be inferred from conduct; and that by making an attorney witness to his will, a testator precludes his representative from objecting to the disclosure by the attorney of professional communications. Matter of Coleman, 111 N. Y., 220; 19 St. Rep., 501. So, if a party in his own behalf testify to a confidential interview with his physician, his adversary may call the physician to contradict the story of the patient. Marx v. R. R. Co., 56 Hun, 575; 31 St. Rep., 914. In the latter case, so far from a disclaimer of his privilege, the patient strenuously asserted it on the trial; but contrary to his express protest, the court raised a presumption of waiver.

The thing forbidden by the Code is the disclosure of professional information ; and the policy of the enactment is t'a protect patients in the free revelation of their maladies to the physician. But what if, in order to enforce a claim against a stranger, the patient himself promulgates the information, and uncovers his maladies and infirmities in court; does-he not thereby break the seal of secrecy and absolve the physician from the obligation of silence? Does he not, in the strictest and most emphatic sense, waive his privilege ? Is it to be tolerated that, to mulct another in damages, he may inflame a jury with a false or exaggerated story of his injuries and suffering, and yet the physician whom he has consulted is not to be allowed to prevent the meditated injustice by a truthful statement of the case ? It is to be borne in mind too, that here the physician was not called to reveal the ailments of the patient, but to prove that she suffered from no such injuries as she represented. Obviously respondent’s contention is as inconsistent with the object and policy of the statute as it is fatal to the interests of justice.

In McKinney v. R. R. Co., 104 N. Y., 352; 4 St. Rep., 349, the court of appeals held that when the condition of the patient is once disclosed, with his consent, “it is then open to the consideration of the entire public, and the privilege of forbidding its repetition is not conferred by the statute;” declaring as the ground of its decision that “ the object of the statute having been voluntarily defeated by the party for whose benefit it was enacted, there can be no reason for its continued enforcement”

In Hunt v. Blackburn, 128 U. S., 464, 470, the supreme court of the United States, by Fuller, J., said: “The privilege is that of the client alone, and no rule prohibits him from divulging his own secrets ; and if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney.”

In People v. Schuyler, 106 N. Y., 306; 8 St. Rep., 860, the court of.appeals say, per curiam: “The object of the statute was to prevent the disclosure by a physician of his patient’s ailments and infirmities, and it may be queried whether it makes him incompetent to testify that his patient was free from disease of any kind. Can a party himself, upon trial, expose his ailments and make them the subject of inquiry, and then object that his physician shall tell anything he knows about them? ”

In Marx v. R. R. Co., supra, the supreme court, at general term in this department, per Van Brunt, P. J., say: “The patient may keep the door of the consultation room closed, but he cannot be permitted to open it so far as to give an imperfect and erroneous view of what took place, and then close the door when the actual facts are about to be disclosed. * * * In construing this legislation we must consider the object that was sought to be attained, viz., the greatest freedom in consultations with a physician. The reason for the rule no longer exists where the party himself pretends to give the circumstances of the privileged interview.”

Although the precise point now presented has not been adjudicated, we have no hesitation in ruling that the offered evidence was competent and that it was essential error to exclude it

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

Daly, Ch. J., and Bischoff, J., concur.


author: Bischoff, J.

text:
    George Lewis et al., App’lts, v. George W. Hojer, Resp’t

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    1. Contract—Construction or.
    An agreement to do an act “ at once” is not satisfied by its performance within a reasonable time.
    2. Same.
    Defendant accepted a draft payable to plaintiffs in consideration of the shipment to him “at once” of certain segars which plaintiffs held as security for a debt of the drawer. In an action on the draft, Held, that plaintiffs did not have a reasonable time in which to ship the segars, but that they were to be shipped simultaneously with the acceptance of the draft.
    Appeal from a judgment for defendant entered upon the verdict of a jury, and from an order denying plaintiffs’ motion for a new trial on the ground that the verdict was against the weight of evidence, in an action brought by plaintiffs as payees to recover the amount of a draft accepted by the defendant, the latter resisting payment on the ground of failure of consideration predicated upon the non-performance of a promise, made in consideration of his acceptance of the draft, to supply him with a quantity of segars from the proceeds of the sale of which he was to reimburse himself for the liability incurred.

      A. R. Dyett, for app’lts; Herbert F. Andrews, for resp’t.
   Bischoff, J.

Wilt & DeMilt, manufacturers of segars, of Tallahassee, Florida, being at the timé indebted to plaintiffs, who were engaged in business as bankers at the same place under the firm name of B. C. Lewis & Sons, on January 31, 1884, made their draft on the defendant, of the city of Hew York, as drawee, payable ninety days after date, and delivered it to plaintiffs upon the understanding that when accepted by the defendant the draft should be applied in extinguishment of the drawers’ existing indebtedness. Defendant at the time was not indebted to, nor did he hold any funds belonging to the drawers, and to induce him to accept the draft, H. J. Wilt, one of the drawers, on February 1st, wrote him as follows :

“We made the draft on you yesterday at 90 days for $4,000 as previously advised, which we trust you will do us the favor to accept. We now have to offer the following propositions as a means of enabling us to run our factory until matters get straightened out. We will ship you at once, say 45,000 segars, value say $3,500, to go to cover your acceptance above, and each week will ship you, say 10,000 segars, value from $500 to $700, against which we would want to draw, say 90 days, for $200 to $300 to cover our current expenses. You to accept such weekly shipments to pay any deficiency on your $4,000 acceptance, after this is settled you to render an account monthly and remit proceeds by certified check or certificate of deposit on N. Y. Bank to us at this place. If this receives your approval please advise us at once and oblige, Yours, etc.,

“ H. J. Wilt, for Wilt & Be Milt.”

This letter was received by defendant and with knowledge of its contents he, on February 6th, accepted the draft when it was presented to him by the Importers & Traders’ Bank of New York, to whom it had been forwarded by the plaintiffs for acceptance and collection. The segars were not shipped to defendant at any time, and on February 25th he notified the Importers & Traders’ Bank in writing to the effect that because of the failure to make the promised shipment up to that time he would refuse to pay the draft at maturity.

The draft having matured, this action was brought to enforce defendant’s liability as acceptor. For his defense he asserted that at the time of the making and delivery of the draft the payees had the custody, or control, of the drawers’ merchandise stock under a bill of sale, or assignment, to them as collateral security for a then existing indebtedness, and that the payees promised in consideration of defendant’s acceptance of the draft to release a sufficient quantity of segars from the operation of such bill of sale or assignment to enable the drawers to comply with the terms of Wilt’s letter of February 1st to the defendant, but that after such acceptance was made the payees refused to abide by their promise, whereby the drawers were prevented from making the promised shipment, and the defendant failed to receive the means of reimbursement as agreed.

The holding of a bill of sale or assignment of the effect mentioned, and the making of the promise to release the segars for the purposes of shipment to defendant, as well as any knowledge on their part that the shipment of the segars constituted the consideration for defendant’s acceptance, were denied by plaintiffs; but the defendant supported his assertions by sufficient evidence. No objection was made to the competency of the evidence, and upon careful examination of the record before us we are not inclined to say that the evidence introduced to substantiate the plaintiffs’ denials so preponderates that a verdict for the defendant is necessarily against the weight of the evidence.

The motion for a new trial upon that ground was, therefore, properly denied.

Upon the trial plaintiffs, among other things, claimed that, assuming that they had promised to release and ship the segars in consideration of defendant's acceptance of Wilt & De Milt’s draft, and that the jury would so find, they were entitled to a reasonable time within which to cause the shipment to be made; that it appeared in evidence without contradiction that the ordinary time required for the carriage of freight from Tallahassee to New York was from ten days to two weeks, and that because of this fact the delay from February 6th to 25th was not unreasonable, and that the defendant’s notice of February 25th that he would not pay the draft at maturity relieved plaintiffs from the duty of shipment, or tender of shipment, thereafter.

Consistently with these claims plaintiffs’ counsel requested the court to charge that plaintiffs were entitled to a reasonable time for the purposes of such shipment, and that under the evidence the delay from February 6th to 25th was, as matter of law, not unreasonable. The court did charge that shipment of the segars within a reasonable time would have been a sufficient compliance with the contract of acceptance of Wilt & De Milt’s draft; but declined to say, as matter of law, that the delay mentioned was not unreasonable, submitting, however, the question of unreasonableness of the delay to the jury to be determined by them as one of fact. To this refusal to charge and submission counsel duly excepted, and these exceptions present the principal and only remaining grounds urged by appellants for reversal.

The brief of the able counsel for appellants is almost exclusively devoted to the discussion of these alleged errors, but a proper consideration of the evidence will be convincing that the question whether or not the delay was unreasonable was not germane to the case, and that any instruction to the jury concerning it was wholly irrelevant. No error can be predicated on the refusal of the court to charge concerning an irrelevant proposition, and for that reason appellants’ exception to the court’s refusal to charge that the delay was not, as matter of law, unreasonable, is without merit. Kissenger v. N. Y. & H. R. R. Co., 56 N.Y., 538.

The point was not raised by counsel for the responent, but the consideration of alleged errors, urged in behalf of a new trial, requires the appellate court to inquire whether, assuming the alleged errors complained of to be such, they were prejudicial to the appellant and might have influenced the result of the trial to his injury; and if upon such inquiry it should appear that such was not the effect of the alleged errors, and if it still more appears that the appellants received the only advantage to be gained therefrom, the errors will not present ground for reversal. Shorter v. The People, 2 N. Y., 193; Tracey v. Altmyer, 46 id., 598, 604; Appleby v. Erie County Bank, 62 id., 12, 18; Carman v. Pultz, 21 id., 547; Briant v. Trimmer, 47 id., 96; Priebe v. Kellogg Bridge Co., 77 id., 597; Jones v. Brooklyn Life Ins. Co., 61 N. Y., 79, 87; Moody v. Osgood, 54 id., 488, 494; Thompson on “ Charging the Jury,” § 121, and cases there collated.

Subjecting the alleged errors urged by appellants to the test stated, it will tie apparent that plaintiffs were not entitled, upon the evidence, to a determination, either as matter of law, or of fact, that the delay in shipment of segars from February 6th to the 25th was not, under the special circumstances of the case, an unreasonable one; and that when the trial judge did submit that question to the jury as one of fact, the error, if such it was, was prejudicial to the defendant only, and operated most advantageously to the plaintiffs, since it allowed the latter a greater time for the shipment of the segars than had been agreed upon, and was, therefore, more favorable to the plaintiffs than the evidence warranted.

To ascertain the manner in which, and the time when, the segars were to be shipped we must turn to the letter of Wilt to defendant on February 1st, no other evidence of these matters appearing in the case. That letter plainly and unequivocally stated that in consideration of defendant’s acceptance of the draft the segars would be shipped “at once.” This did not mean that they would be shipped within a reasonable time, but that the shipment would be made with greater celerity than is ordinarily comprehended by a reasonable time. It implied that the latter would be made simultaneously with the acceptance, or at least with receipt of advice that the draft had been accepted. “ At once ” is convertible with “ prompt,” “ forthwith.” These terms in their ordinary acceptation mean “ at the same point of time, immediately, without delay, at one and the same time, simultaneously, directly (Webster’s International Dictionary “Once” p. 1002, “Forthwith,” p. 588 ; “ Prompt,” p. 1147), and are not wholly without judicial definition. In Tobias v. Lissberger, 105 N. Y., 410; 8 St. Rep., 43, the court of appeals says that a contract for “ prompt” shipment was not performed by a shipment within a reasonable time, but that the shipper was thereby bound to ship with greater dispatch than in a reasonable time. So in Woods v. Miller, 39 Am., 170, the words “will fill your order immediately ” in a contract for the shipment of potatoes were held to imply readiness to ship, and evidence to show that the potatoes had been shipped within a reasonable time was pronounced inadmissible. Duncan v. Topham, 8 C. B., 225, is authority that a promise to ship “directly” was not performed by shipment, within a reasonable time, and that reasonable time meant a more protracted delay than the parties intended by the use of the word “ directly.”

For the reasons above expressed we cannot regard the errors complained of, if such they are, as fatal to the judgment and order from which the appeal was taken.

Judgment and order affirmed, with costs to respondent.

Daly, ch. J., and Pryor, J., concur.