text:
    ROBERT SAILESBURY, Plaintiff, v. ANN CRESWELL, Defendant.

      Jvdgment — when not impeachable — False imprisonment — when action cannot he maintained for.

    The complaint in this action alleged that the plaintff herein was theretofore duly personally served with a summons to appear before a justice of the peace having jurisdiction thereof, to answer in an action brought against him by the defendant, Creswell; that he did not appear before the justice, “ well knowing that said Ann Creswell had no cause of action against him, and to appear before said justice would be attended with great cost and expense ; ” that the' said Ann appeared and put in a complaint, charging him with having converted certain articles of personal property belonging to her; that the complaint was false and was known to be so by the said Ann ; that the said Ann went on the stand and committed perjury in swearing to the facts stated in the complaint; that judgment was entered against him therein, execution issued against his property, and subsequently against his person ; that, under the exe- , cution, he was confined in jail until discharged by taking the affidavit required by the statute; that plaintiff did not know of the judgment until it was too late to appeal therefrom; that the commencement of the said action and all the acts of the defendant were had and done unlawfully, wickedly, willfully and maliciously by said defendant to injure the plaintiff in his person and property. Held, that, as the judgment rendered before the justice was in full force and 'effect, the court could not question but that it was rendered on sufficient evidence and in a just cause, and that the complaint did not. therefore state 1 ■facts sufficient to constitute a cause of action.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the Circuit.
    ' The complaint in this action alleged that the defendant, Ann Creswell, wrongfully and maliciously commenced an action against this plaintiff, before a justice of the peace, and that the summons therein was duly personally served upon him; that on the 8th day of June, 1876, the return day mentioned in the summons, the plaintiff” did not appear before said justice, “well knowing that said Ann Creswell had no ease of action against him, and to appear before said justice would be attended with great costs and expense;” that on said eighth day of June the said Ann Creswell personallyappeared before said justice, “and on the parties named in said summons being called, said Ann Creswell, plaintiff named in said summons, answered and appeared, and she well knew that this plaintiff believed that she said defendant had no case of action against him, and no one appeared for this plaintiff by reason of the matters aforesaid; said Ann Creswell, put in and caused her complaint in said action to be put in substantially in the words and figures following: ‘ In Justice Court, Ann Creswell against Robert Sailesbury. Plaintiff appeared and complains of defendant, and alleges that on or about the 30th day of March, 1876, that defendant took and converted to his own use, one cook stove with cooking utensils, one bed tick and forty feet of rope, without the consent of the plaintiff;' and plaintiff claims judgment for forty-five dollars and costs;’ which complaint was false in fact, and which fact said Ann Creswell well knew, yet she maliciously and wrongfully made the same.” That she was duly sworn according to law, to sustain her cause of action and did commit perjury in testifying to the truth of the facts set forth in her complaint; that judgment was rendered in favor of Ann Creswell for eighteen dollars damages and five dollars costs. “That this plaintiff did not know of said judgment until'more than twenty days after the same had been rendered by said justice, nor until after the time to appeal therefrom had been lost to this plaintiff, and this plaintiff has no way to him known to review said judgment, and has had no legal way to review the sanie since this plaintiff learned that such judgment was obtained by defendant.” That subsequently an execution was issued thereon against the property of the plaintiff and returned unsatisfied, and that thereafter an execution was issued against his person, and he was confined in jail until discharged by taking the oath required by statute. “ And this plaintiff charges that the commencement of said action, and the putting in of said complaint, and the giving the testimony on the trial of said action, and the obtaining of the judgment aforesaid, and of the issuing of the executions against the property as well as against the body of this plaintiff, were all had and done unlawfully, wickedly, wilfully and maliciously by said Ann Creswell, to injure this plaintiff in his person and property,” and demanded $5,000 damages.
    The plaintiff’s counsel, in opening the case to the jury, read the complaint and stated that he proposed to prove all the matters and facts set out in said complaint, and in answer to an inquiry by the court, it was by the plaintiff admitted that the action before the justice, mentioned in said complaint, was an action of tort, and the judgment rendered therein had never been reversed, paid, satisfied, discharged, or appealed from. After the counsel for the plaintiff had completed his opening, defendant’s counsel asked the court to rule that the justice had jurisdiction, and that the judgment was conclusive, and asked for a nonsuit. Plaintiff’s counsel here claimed the right to introduce his proof in view of the pleadings, the answer being a denial of each and every allegation contained in the complaint and being duly verified. The court thereupon ruled and decided to nonsuit the plaintiff on its own motion, for the reason that the facts stated in the complaint and in the opening of the plaintiff’s counsel, did not constitute a cause of action; that the judgment which was obtained before the magistrate was in full force and effect, and that the court could not question but what it was rendered on sufficient evidence and in a just cause. To which ruling and decision of the court the plaintiff’s counsel duly excepted. Plaintiff’s counsel then offered and claimed the right to make his proof of the facts as by him claimed in his opening, and to prove the matters alleged in the complaint, and he claimed that right by reason of the answer put in by the defendant, denying each and every allegation of the complaint. This offer and claim was refused and denied by the court, and plain-; tiff’s counsel duly excepted. The court thereupon made an order directing that the case and exceptions taken at the trial of this action, on the part of the plaintiff, when the same shall be duly settled and filed, be heard in the first instance at the General Term.

      Parnell <& Burrell; for the plaintiff.

      Murray <& Green, for the defendant.
   Hardin, J.:

The plaintiff is not in a situation to maintain this action founded upon the idea of a malicious prosecution. 1. The litigation before the justice was not terminated in favor of the plaintiff here. 2. The recovery of the judgment before the justice which remains unreversed, and in full force, is evidence of probable cause. The learned counsel for the plaintiff cites Burt v. Place (4 Wend., 591). In that case the litigation had been terminated by an appeal and reversal, which was held a continuation of the suits in favor of the plaintiff. Again, in that case the defendant had caused the arrest of the party with the design and for the purpose of preventing his appearance before the justice to defend the actions. Not so in this case. The plaintiff here deliberately and negligently omitted to appear before the justice and defend. In Palmer v. Avery (41 Barb., 290), cited by plaintiff’s counsel, the court held that the action could not be maintained, because the litigation had not been terminated in favor of the plaintiff. Foster, J., concurred with Bacon, J., upon that ground. This view is recognized by Mitchell, J., in Miller v. Deere (2 Abb., 1), where he says, at page 6 : “If his former testimony can now be disproved, it could and should have been disproved- in the first suit, and the plaintiff should have no relief for his neglect to make such proof, unless he was prevented as in Burt v. Place by some other wrongful act of the present defendant.”

Peckham, J., said in Binck v. Wood (43 Barb., 321): “ The law cannot uphold the trust and faith that allows a man to lie by, as plaintiff here did in the first suit, and rest upon the belief that the plaintiff there would not do what in the summons or complaint he had expressly notified this plaintiff he would do.” * * * “ Such doctrine puts an end to the effect which the wisdom of ages has given to judgments.” (Id., see White v. Merritt, 7 N. Y., 352.)

The plaintiff cites Brown v. McIntyre (43 Barb., 344), to uphold this action. That does not favor a recovery here.1 There the plaintiff recovered for a malicious arrest in Canada, where ho had been held to bail in $2,000 more than the amount of his debt, and such fact had been found in the Canada suit, which, as to the $2,000, had terminated in his favor. Nor does the case of Brown v. Feeter (7 Wend., 301), aid the plaintiff. There the judgment had been paid and the party wrongfully issued and caused to be executed an execution, and was held liable for the wrong perpetrated by means of the execution. Here the judgment v, as rendered, remained wholly unpaid, and was the foundation for an execution to enforce it. The payment of the judgment in Brown v. Feeter (supra), extinguished it. (Dexter v. Broat, 16 Barb., 337.)

The plaintiff here was negligent. 1. In not appearing before the justice. 2. Not inquiring for the judgment. 3. Not asking to have the judgment opened. 4. Not appealing either upon the merits or upon affidavit showing his excuse for not appearing before the justice. (Code, § 366.) Such negligence deprives him of the right to question the judgment in Justice’s Court, and prevents him from overhauling it by means of this action. (Ross v. Woods, 15 N. Y. S. C., 185; Smith v. Nelson, 62 N. Y., 287; White v. Merritt, 7 id., 352; Verplanck v. Van Buren, 18 N. Y. S. C., 328; Gates v. Preston, 41 N. Y., 113; 2 Addison on Torts, 800.)

The nonsuit was properly granted at the Circuit, and the motion for a new trial should be denied and judgment directed for the defendant, with costs.

Talcott, P. J., and Smith, J., concurred.

Motion for new trial denied and judgment for the defendant;


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    WILLIS S. NELSON, Respondent, v. ELIJAH DRAKE, Appellant.

      Chattel mortgage executed by the •president of an association — validity of — who cannot question.

    By the articles of association of the Rochester Towing Company, the control and management of all its business and affairs were vested in seven trustees, any four being authorized to transact business; they were also authorized to appoint agents and officers and prescribe their duties. By a resolution of the stockholders, passed December 9, 1873, they were authorized to mortgage, control, sell and dispose of the property of the company for the best intej',est of the company. In April, 1874, in pursuance of a resolution of the trustees, a chattel mortgage was executed by its president upon all the property of the company to T. & W. Subsequently, and in August, 1874, Smith, who was -called the president of the board of trustees and had been treated as such, executed a second chattel mortgage upon the property acquired since the execution of the first.
    Thereafter an agent of the company transferred to the defendant a portion of the property of the company, covered by the second mortgage, in payment of a pre-existing indebtedness. The mortgagees having demanded the possession of the mortgaged property, this action was brought by the plaintiff, their assignee, to recover that portion of the property converted by the defendant.

      Held, that as against the defendant the title acquired by the mortgagees was good; that Smith as president had authority to execute the mortgage ; that the defendant not being a judgment-creditor or purchaser in good faith, could not insist that the act of Smith in giving the mortgage was fraudulent either as against creditors of the company or as against his co-trustees or the stockholders of the company.
    Appeal from a judgment in favor of the plaintiff, entered upon, the report of a referee.
    The action was brought to recover damages for the conversion ’ of a pair of mules. The Rochester Towing Company owned them and executed a chattel mortgage covering them to Thompson and Wilcox, and they assigned their claims to plaintiff, who made demand for the mules. The defendant took them from Dewey, an rgent of the towing company, for a feed bill, and kept them t\.o weeks and then sold them. He had sold them before the demand was made. The mortgages were made and were put on record before the mules were turned over to the defendant. The referee found. I. That on or about the 26th day of January, 1869, at the city of Rochester, New York, an association of persons was organized as a joint stock company, called and ■known by the name and style of the “ Rochester Towing Company,” consisting of seven-and more shareholders, for the purpose of towing boats on the canals of the State of New York, and the purchasing of horses, harnesses, and every other thing necessary for the conduct and management of such business.
    II, That on the 18th day of August, 1874, at the city of Utica, .where the said association then had its principal place of business and its principal office, the said “Rochester Towing Company” owned a large number of horses, mules, harness and other property then in use by said company for towing boats and the necessary transaction of its business, and as parcel of such property then owned and had possession of the two mules, the property mentioned and described in the plaintiff’s complaint.
    III, That on the said 18th day of August, 1874, the said Rochester Towing Company, of Utica aforesaid, by its president and treasurer, R. B. Smith, sold, assigned and transferred to L. M. Thomson, M. G. Thomson and William C. Wilcox, of Utica, by way of mortgage in writing, certain property of the said company, among which were the two mules mentioned and described in the plaintiff’s complaint, and being then the property of said company.
    IY. That a true copy of the said mortgage was on the 21st day ■of August, 1874, duly filed in the clerk’s office of Oneida county, in the city of Utica.
    V. That the said mortgage was given among other things to secure the payment of certain notes of the Rochester Towing Company, indorsed or to be indorsed by the said mortgagees, or some of them, for the accommodation of the said company, and to save the said mortgagees against any and all liability then already incurred, or which the said mortgagees, or either of them, might thereafter incur, in consequence of making indorsements for said company, as therein was particularly described and mentioned.
    YI. That in and by said mortgage it was agreed by the Rochester Towing Company and. provided among other things that in case of default by the said Rochester Towing Company in the performance of any of the conditions of the said mortgage, or if at any time before the maturity of the debts and obligations, contingent or otherwise, therein secured, the said mortgagees should deem themselves unsafe or insecure, then and in such case the said mortgagees were by the said mortgage authorized and empowered to take possession of the said property thus mortgaged, or any part thereof, to keep or sell the same, and out of the net proceeds to pay the sums, demands and obligations intended to be secured by said mortgage.
    VII. That the said mortgagees indorsed several notes of a large amount, of the said company, for their accommodation, relying upon the security of the said mortgage which remained unpaid October 5, 1874, and the said mortgagees then deeming themselves unsafe and insecure thereafter on the same day served upon the president and treasurer of the said company, R. B. Smith, at Utica, a notice in writing, notifying the said company that they, the said mortgagees, deemed themselves insecure, and of their intention of taking immediate possession of the mortgaged property and immediately afterwards proceeded to take possession of so much of it as they could find.
    VIII. That on the 15th day of October, 1874, after the said .mortgagees had declared their intention to take possession of the property thus mortgaged and had proceeded to find and secure the same, the defendant in this action took possession of and converted to his own use the two mules described in the plaintiff's •complaint — being part of the property thus mortgaged, and •claimed to own the same as his own property, and that the value of said two mules was then two hundred dollars.
    IX. That the above named mortgagees, before the commencement of this action, and on about the 24th day of May 1875, for value received, sold, assigned and transferred to the plaintiff in this action, all cause and causes of action which the said mortgagees might have or had against the said defendant for such conversion.
    And as matters of law, he found and decided that at the time of such conversion by the said defendant, the said two mules were the property of the said mortgagees as against the said defendant; that the taking possession thereof by the said defendant on the said 15th day of October, 1874, was wrongful as against the said mortgagees and a conversion of the said two mules by the said defendant, for which the said mortgagees above named had at the time of said assignment to plaintiff, a right of action against the defendant to recover the value of said mules in damages, for the said wronful taking and conversion ; that by such assignment the said right of action passed to the plaintiff, and he was-entitled to maintain this action to recover such damages in his own right.
    It further appeared in the case that December 9, 1873, by a resolution of the stockholders of the association, the directors were given full power to manage, control, sell and dispose of its property to the best advantage. That a resolution was adopted by the directors • April 22, 1874, authorizing the president to execute a chattel mortgage for $20,000, covering the personal property of the association; that a mortgage was executed by the president April 23, 1874, to L. 'M. and M. G. Thomson and William C. Wilcox for an existing indebtedness of the association to them, and to secure them for future indorsements, to the amount in all of $20,000. This mortgage did not cover the mules in question, which were purchased by the association after its date.
    On August 18, 1874, the president, executed a second mortgage to the same parties to secure the same indebtedness and future indorsements, to the extent of $20,000.
    A paper was given in evidence, signed by five of the directors, authorizing the president to sign, execute and deliver all mortgages, etc., for and on behalf of said company Avhich may be considered for the benefit of said company. It had no date, and the date at which it was signed did not appear in the appeal papers.
    The only title the defendant had was such as he derived through Dewey, the agent of the company, who, on the 15th October, 1874, turned out the mules to defendant to pay a feed bill. The plaintiff made a demand for them before suit, and the defendant refused to deliver them up, saying he had sold them. The referee reported the damages $200 and ordered the judgment for plaintiff, and the defendant appeals. It was claimed by the defendant that the chattel mortgage was invalid unless the consent of stockholders owning two-thirds of the stock was obtained. That the president of the association had no power to execute it.

      William E. Hobbey, for the appellant.

      Pardee & Piper, for the respondent.
   Hardin, J.:

The Rochester Towing Company was a joint-stock association organized in pursuance of articles of association, entered into by sundry persons in January, 1869. The fifth article provided that “ the trustees shall have control and management of all business and affairs of the company, appoint all officers and agents who may be deemed necessary, and may prescribe the duties and fix the compensation of such officers and agents; to sell and dispose of all such property belonging to the company as they shall think best.” * * * Article four provided: “ There shall be seven trustees to take the care and charge of the business affairs of the -said company, with powers to any four of them to transact business.” Article eight provided for the duties of a treasurer.

Roswell B. Smith, as a witness, testified that he became connected with the company in 1869, and continued with it up to the fall of 1874, and that he attended the meetings of the company, and identified the book of record of its proceedings, and it was produced and read in evidence. He was appointed one of the trustees in and by the articles of association. He testified that he executed a chattel mortgage 23d of April, 1874, as president and treasurer, to L. M, and M. G. Thompson and N. C. Wilcox, in the name and under the seal of the company; that it was executed pursuant to a resolution of the trustees, five being present, passed 22d April, 1874, covering all the mules, among other things, then owned by the company. After that the company purchased other mules and property. There was another mortgage executed by the company per Smith, “president and treasurer,” August 18, 1874, covering mules, to the same mortgagees to secure $6,874.58, and indorsements to be made for the company by the mortgagees. There was a resolution of the stockholders passed 9th December, 1873, giving to the trustees “full power to manage and control, sell, and dispose of” the property of the company to the best advantage for the interest of the company. Smith applied to the mortgagees for a loan and for indorsements, and they arranged with him to take the mortgages, became liable, and were obliged to pay and did pay.

They made advances which were used for the benefit of the company upon the mortgage of August 18, 1874. This mortgage covered the pair of mules for which this action was brought.' The mortgages were recorded and were taken in good faith. They contained a danger clause, and on the 5th of October, 1874, the mortgagees gave the company notice of their intention to take the property from the possession of the company. The fifth article gave the trustees power to appoint all officers and agents who may be deemed necessary, and to prescribe the duties. This authorized them to appoint Smith president, as the proceedings show they called him and treated him. It also authorized them to prescribe his duties.

There was power in the trustee Smith, who was also president and treasurer, to pledge and mortgage the property of the company, in payment of its indebtedness, and to secure the mortgagees for loan of money and credit. (Mabbett v. White, 12 N. Y., 454; Graser v. Stellwagen, 25 id., 315.)

The defendant did not set up in his answer that he was a judgment creditor, nor that he was a purchaser in good faith of the property; nor did he make any such proof upon the trial; all that he proved was that an agent of the company turned out the property October 15, 1874, in payment of an antecedent debt of the defendant against the towing company for feed. He did not put himself in a position to challenge the transfer to the mortgagees by the company, on the ground of fraud against the creditors of the-company, or that the transfer and mortgage were fraudulent as against the other trustees or stockholders. (25 N. Y., 317; Beaty v. Swarthout, 32 Barb., 293.)

The company received the benefit of the indorsements derived, under the chattel mortgage of August 18, 1874, and could not repudiate the act of its president and treasurer without returning the money and benefit derived. The execution of the mortgage-was not against good moral and public policy, and the company would not be allowed to repudiate it without returning the benefits derived, under it. It was good between the parties, and could be. enforced by the mortgagees against the company. In other words, the company holding the moneys and benefits derived under the mortgages, would be estopped from questioning the transfer. (Steam Co. v. Weed, 17 Barb., 378; Whitney Arms Co. v. Barlow, 63 N. Y., 62.) After the mortgages of August 18, 1874, the mortgagees indorsed and paid for the benefit of the company $12,000, which was not repaid to them. They were entitled to hold and enforce the mortgages, and as the defendant took the property and converted it, and refused to deliver it upon their demand, he became liable for its value. They assigned their cause of action to the plaintiff, who has recovered the value of the mules converted by the defendant.

The learned referee properly held, as a conclusion, that, “at the time of such conversion by the said defendant, the said two mules were the property of the said mortgagees as against the said defendant; that the taking .possession thereof by the said defendant, on the said 15th day of October, 1874, was wrongful as against the said mortgagees.” The complaint sufficiently alleged, first. That the mules were the property of the mortgagees, and that they were entitled to the possession thereof. Second, That the mortgagees sold their demand and claim for the conversion to the plaintiff; and third. The value of the mules at the time of the conversion.

The mortgages were therefore properly allowed in evidence, and the assignment to the plaintiff of the cause of action, of the mortgagees. The exceptions by the defendant to the admission of them in evidence were not well taken. The judgment should be affirmed.

Talcott, P. J. and Smith, J., concurred.

Judgment affirmed.


text:
    HECTOR McLEAN, as Assignee, Etc., Appellant, v. JAMES T. STEWART, Impleaded with ALBERT GALLUP, Respondent.

      Judgment — powei- of Special Term io alter it, on motion.

    The F. & M. Bank of Rochester holding a note for §1,000, made by S. & M. Hutchins, delivered the same to Stewart, one of the directors, who recovered a judgment in his own name for $1,140 damages and $22.80 costs, which costs Stewart claimed to have paid to his attorneys. This action was brought by the assignee in bankruptcy of the bank against Stewart and the sheriff to compel the latter to pay over the whole amount of the judgment ($1,162,80), which he had collected and held in his hands. The case was tried before a justice of the Supreme Court without a jury, and judgment was entered in favor of the plaintiff September 15, 1877, directing the whole amount to be paid to him. No evidence was given upon the trial to show that Stewart had paid ■ the $22.80 to his attorney. Upon a motion made by defendant after the entry of the judgment, it was ordered by the judge, before whom the action was tried, that the judgment be amended so as to direct that as to the $22.80 the plaintiff should hold the same intrust for Stewart, and pay it over to him upon demand.

      Held, that the Special Term had no power to alter the judgment upon motion; that the proposed change related to the merits, and was covered by the decision already made; that, if proper, such change could only be made after a rehearing before the trial judge upon the case being sent back to him, or after a review by an appellate court.
    Appeal from an order made by the Monroe Special Term on the 6th day of December, 1877, altering the decision of the trial judge who heard this cause without a jury, and also changing the judgment entered upon such decision. The Farmers and Mechanics’ Bank of Rochester held a note made by S. C. and M. A. Hutchins for $1,000, and the note was delivered to Stewart, who was a director in said bank, and a suit was brought upon it in Stewart’s name and judgment obtained by McDonald & Raines as attorneys for $1,140 debt and $22.80 costs, making, together, $1,162.80. The $22.80 costs were paid by Stewart to his attorneys 4th of December, 1875.
    This action was brought by the assignee in bankruptcy of the bank against Stewart and the sheriff of Albany county, who had collected the judgment and held the money, to compel the latter to pay it over to the plaintiff.

      In this case the findings of fact and law were signed by the trial judge on the 23d of August, 1877, and filed September 4, 1877. The decision provides that the moneys in the hands of the defendant Gallup, as sheriff of Albany, held upon the execution issued on-the Stewart judgment (costs as well debt) shall be paid over to the plaintiff. The conclusion of law in said decision was “ that such money belongs to the plaintiff, and that he is entitled to a judgment that the same be paid over to him by the defendant Albert Gallup.” Judgment was entered in accordance with said decision September 15, 1877, which provided, viz :
    '1 The said Albert Gallup is hereby ordered and directed to pay to the.plaintiff, on the production of a certified copy of the judgment, the said sum $1,162.80 and interest,” etc. The defendant Gallup paid over said money before the order appealed from was made. After the counsel in this case had been before a Special Term to argue other motions in a term held by the same justice Who tried this action, they had some conversation on the 29th of August, 1877, as to the decision in this case, and as to a provision that the item of $22.80 should be paid to defendant Stewart by Gallup the sheriff, as it was claimed that Stewart had paid the same to his attorneys. That fact was questioned, and the justice made some intimation to the effect that if Stewart had paid the $22.80, he should have that sum from Gallup. No agreement was made then between the counsel. The decision was filed and judgment entered as aforesaid. A motion was made to correct the decision and the judgment, if one should be entered. The motion was noticed for September 24, 1877, and was ordered over to the December Term to be held, and which was held by the same justice who presided at the trial of this action.
    The order made changed the decision as to the $22.80, and provided, viz: “But, as to the said sum of $22.80 and the increase thereof, the plaintiff holds the same as trustee for Said Stewart.” And the judgment was amended hr a similar respect, so as to adjudge additionally, to wit: “ And it is further adjudged that, as to the sum of $22.80 and the increase thereof; parcel of said money, the plaintiff upon receiving- the same of said Gallup hold the same as trustee for said Stewart to be paid over to him on demand,” and the clerk was directed to make “ such insertions in said judgment-roll and in the book of judgments.”
    The order also allowed ten dollars costs of the motion to Stewart, against the plaintiff as assignee in bankruptcy of said bank.

      John Van Yoorhis. for the appellant.

      Theodore Bacon, for the respondent.
   Hardin, J.:

The principal question presented involves the right of the Special Term to amend a decision of the cause, which had been made, signed and delivered, as of a prior term when the cause was tried, and also the right to change the judgment, entered in accordance with the decision as made, so that it should conform to the change made in the findings of fact and law, after they were made as required by the order appealed from. There was no evidence given upon the trial that Stewart had paid the costs to the attorneys in the action when the judgment was recovered. There was, therefore, nothing for the trial judge to act upon in separating the damages from the costs as to the right of the plaintiff to recover. Nor was there any mistake made by the trial judge in respect to the facts and law found by him upon the evidence before him, when he deliberated and decided and signed his decision. The case cited from 19 Johnson, 244 (Mechanics’ Bank v. Minthorne), differs from this one. There the clerk who made the assessment of damages upon an indorsement of a note of $7,000 made a mistake in calculating the interest one year too short, and the error of $525 was not discovered until the judgment had been paid and satisfied of record. The court, upon application, granted a provisional order to the effect that if the defendant did not pay the $525 in thirty days, then “the clerk re-assess the damages of the plaintiff,” allowing the defendant for all sums he had paid after the prior assessment. It was held to be a case of clear mistake. (Wardell v. Eden, 2 Johnson’s Cases, 121.)

There is a dictum of Sutherland, J., in Pitt v. Davison (12 Abb., 387), in a Special Term case, to the effect that the court has power after entry of a decree in requirement of specific performance to amend it so as to require payment of damages instead, where the proper facts exist and appeared upon the hearing, or to order a referee to ascertain the facts for the purpose of amending a decree, where it was not in accordance with the facts surrounding the parties at the time the decree was settled, and it had become impossible for the party to convey; and the judge said the decree should have recited the reason and fact of such impossibility, and in place of decreeing specific performance should have decreed compensation in damages. The judge expresses incidentally the opinion that such change could be made, and that too, upon the ground “ that it was no error of the court in point of law, but an error arising from the omission of a fact.”

The case of The N. Y. Ice Co. v. The N. W. Ins. Co., as reported in 23 N. Y., 358, has been cited by the respondent’s counsel, and as reported in 32 Barb., 534, by the appellant’s counsel. The action was brought to recover upon a policy of insurance, and to reform it, if it should be found necessary. It was tried before' Ingraham, J., at Special Term, and he held that a case for relief had not been made out, and dismissed the complaint. The plaintiff there asked to have a trial upon the policy as it stood, without reformation. This ivas refused, and he dismissed the complaint without prejudice to the right to bring a new action. The plaintiff then discovered that the time to sue was limited, and made a. motion for and obtained leave to “ serve a new complaint at law.” Upon appeal the order was reversed. (32 Barb., 534.) Bonnet, J., said: “The amendment appears to me not unreasonable or inequitable, but I do not see that the court has any power to make it. Final judgment dismissing the complaint was duly rendered and entered. And there is no allegation or pretense of any mistake or omission therein. The judgment is precisely what it was intended to be, and disposes of the whole case. The amendment has been asked for and granted upon considerations not presented to the court at the hearing, and is intended to give to the plaintiff relief not then contemplated by any one.” He then quotes Clark v. Hall (7 Paige, 382), where it was held by the Chancellor, that a decree cannot be varied in substance without a rehearing; but that it may 1x3 amended or connected on motion as to mere clerical errors, ■or by inserting any provision or direction which would have been inserted as a matter of course, if the same had been asked for at the hearing as a necessary or proper clause to carry into effect the decision of the court. The order of the Special Term was reversed upon that opinion of Bonney, J.

An appeal was taken to the Court of Appeals, and the opinion delivered by Comstock, J., and reported 23 N. Y. (supra.) The opinion is to the effect: first, that the order is not appeal-able, and the decision is put upon that ground; second, and it also discussed the error of the judge in refusing a trial of the question of the right to recover at law, and suggests that an appeal brought from that judgment would lead to the correction of the error; third, that the amendment might have been made at the trial, and the dictum as expressed, that it could be made after judgment, and a new trial ordered in respect to the matters freshly brought into the case by the amendment.

Subsequent to the chancellor’s decision in Clark v. Hall (supra), the vice-chancellor followed it, and stated “ the rule is not to vary or alter a decree in a material part on motion or petition; a rehearing should be had for such purpose.” “ A decree cannot be varied, in substance, on petition without a rehearing.” (Ray v. Connor, 3 Eds. Chy., 504.) In Hotaling v. Marsh (14 Abb., 161), the New York General Term held, in 1862, that mistakes which may be amended under section 173 of the Code do not include judicial errors in rendering judgment. Leonard, J., said the “amendment now asked for is one that relates to the relief granted by the court on the hearing of the cause, or rather to the omission to grant the whole relief which the case would permit.” If a judicial mistake has been made, it has sometimes been corrected by vacating the judgment and rehearing the case on the merits. (Id.) Those cases were followed in Lillie v. Sherman (39 How., 288), where there was a motion made to amend the decree by directing payment to the plaintiff in gold, or its equivalent, and refused upon the ground that if there was any error in the decree it was judicial. In Hubbard v. Copcutt (9 Abb. [N. S.], 289), the Court of Appeals held that a court at Special Term cannot modify, in substance, a judgment of the General Term rendered upon a case presenting a verdict taken at Circuit subject to the opinion of the court at General Term, Allen, J., says: “If further evidence was necessary to settle the rights of the parties and enable a proper judgment to be pronounced, it would seem i hat a retrial would have been proper.” (p. 290), Sheldon v. Williams (52 Barb., 183), opinion by Potter, J., is to the same effect. (See Libby v. Rosekrans, 55 Barb., 215.) The case of Stevens v. Veriane (2 Lans., 90), was one where the referee in an equity action had passed upon the question of costs. Judge Mollin said: “ To alter the adjudication .as to costs, upon motion, after judgment, is to vary the judgment, and this can only be done by a court authorized to revise the judgment on appeal, or to review the cause. A judge at Special Term has no such power.” (See Beattie v. Qua, 15 Barb., 132.)

A decision had been made and signed and delivered before any" question'was made as to the item of $22.80. That decision awarded the whole money in the hands of the defendant Gallup, as sheriff, to the plaintiff, and held, likewise that Stewart had no interest in the money. The changes sought upon special motion may be proper to be made, but they relate to the merits, to the matters covered by the decision, and should be allowed only after a rehearing before the trial judge upon the case being sent back to him, or after a review by a court having power on appeal to review and overhaul the judicial conclusions had upon the evidence adduced upon the trial. Such changes in the finding.» of fact, of law and alterations of the judgment, the Special Term had no power to make.

The order made and appealed from should be reversed, with $10 costs and disbursements, and the motion denied with $10 costs of opposing, and the clerk of Monroe county directed to strike out any alterations made by him in the judgment-roll, in virtue of the order December 6th of 1877.

Talcott, P. J.,and Smith, J., concurred.

Ordered accordingly.


author: Talcott, P. J.,

text:
    ELLA M. HOLLIDAY, Respondent, v. ISAIAH LEWIS AND OTHERS, ADMINISTRATORS, Etc., of ANNA DORAN Deceased, Appellants.

      Promissory note — consideration of — when sufficient — delivery of — what sufficient to establish.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action, to recover a claim made by the plaintiff against the administrators of the estate of Anna Doran, was referred under the statute, and was upon a note of $400, payable to the order of the plaintiff, which was found among the papers of Anna Doran after her death. Anna Doran was the grandmother of the plaintiff, and after the decease of the plaintiff’s father was appointed her general guardian, and continued such until the death of the said Anna.
    The father of the plaintiff died in April,. 1865, leaving the plaintiff him surviving, and then an infant about the age of ten years. The plaintiff’s mother had died previous to the death of her father. Anna Doran, the intestate, was duly appointed guardian of the plaintiff in June, 1865, and died herself in August, 1865.
    The father of the plaintiff, James E. Doran, was a major in the army and died in the service. He had no other place of residence at that time except with his mother, the said Anna Doran, and the plaintiff lived with the said Anna Doran until the death of the latter.
    The note on which the plaintiff claimed, was in the words and figures following, to wit:

      “ $400. Syracuse, February 25, 1865.
    “ For value received, I promise to pay to-the order of Ella M. Doran four hundred dolíais, with interest, one day after date
    “ (Cash borrowed.) ANNA DONAN."
    The note when found had upon it an internal revenue stamp of twenty cents canceled.
    The plaintiff has now arrived at full age. The referee found that the note was made for a good and valid consideration, and was duly delivered to the plaintiff by the maker thereof, and ordered judgment in favor of the plaintiff against the administrators of Anna Doran for the amount of the note, with interest from the day of its date. The defendants insist that there was no consideration for the note, and that the note had not been delivered so as to take effect.
    James Doran, the father of the plaintiff, was home on a furlough two months before his death, which is- found to have occurred in April, 1865, which would tend to show that Major Doran was at home at the time the note was dated.
    The court, at General Term, said: “There was some evidence given tending to induce the belief that the note was given for money which Mujor Doran had left with his mother, the maker, or had deposited to her credit when he entered the army; but, aside from this evidence, the note is expressed on the face of it to have been given for value received, and imports a sufficient consideration, and affords conclusive evidence of a good and valid consideration, in the absence of any proof questioning the consideration.
    The main question is, as to the delivery, was the evidence sufficient to authorize the referee to come to the conclusion that there had been a sufficient delivery to enable the note to take effect ? Delivery, or something equivalent, is doubtless necessary to the taking effect of a promissory note, but it need not be an actual delivery to the person for whose benefit it is made; nor is it absolutely essential that it should be delivered into the hands of a third person for the benefit of the party for whom it is made. The case does not show in whose handwriting the note is, and the most rational presumption from the facts which do appear is, that the note was made while the father was at home on furlough, about two months before his death! and was by him placed in the hands of Anna Doran, the grandmother of the plaintiff, and with whom the custody of the person of the plaintiff, then an infant of tender years, was intrusted to be kept for the benefit of the plaintiff. The note was found by the administrators in a secretary or trunk, and among the papers which Anna Doran held as the administratrix of her husband’s estate, which lends some force to the idea that she considered it held in trust. The taking of the note in the name of the donee; that is, payable only to the donee or order, is evidence of an appropriation to the benefit of the donee; and even if the donor retains the possession of the note during his life, it will bo intended that he did so for the benefit of the donee. (Fulton v. Fulton, 48 Barb., 581.)
    Where a testatrix deposited money in her own name “ in trust for Charlotte Fuller Morse,” it was held that the money belonged to Charlotte Fuller Morse, though no account could be given of the consideration upon which the trust arose. {Millsjoaugh v. Putnam, 16 Abb. Pr. It., 380.)
    Bonds and mortgages assigned to a grandson of a deceased person, though not delivered to him, or the existence of the assignment communicated to him until after the death of the donor, were held to operate as valid transfers of the bonds and mortga6es; (Hunter v. Hunter, 19 Barb., 631.) So a deed, signed and acknowledged by the grantor, in the absence of the grantee, and where the testimony was to the effect that there never was any formal delivery, but after the death of the grantor the deed was found in his secretary among his private papers, a verdict sustaining the deed as valid was not disturbed. (Scnigham v. Wood, 15 'Wend., 545; see, also, Doe v. Knight, 5 B. & C., 671; Logan v. Deshay, Clark’s Ch., 209.) If a trust be created for the benefit of a third person, though without his knowledge at the time, he may subsequently adopt it and enforce its execution. ('Derly v. Taylor, 5 I-Iill, 577.) ■
    ■ But, even without presuming the presence and participation in the transaction of the father of thej plaintiff, the donor may constitute himself a trustee for the donee, j ( Taylor v. Kelly, 5 Hun, 115.) Where one Follett was a trustee for the, plaintiff, as such, he loaned certain moneys of the plailitiff’s to the firm of Follett & Bradley, of which he was a member, and took of the firm as security a note and mortgage payable to the order of the plaintiff— the execution of the note and mortgage was wholly unknown to the plaintiff at the time, and was not discovered until a number of years thereafter when they were found among Folleft’s papers, he having become insane — it was held that there was a valid delivery to the plaintiff. {Tucker v. Bradley, 33 Vt., 325.)
    On the whole, therefore, we think that the referee was, under the circumstances; justified in finding a sufficient delivery to the plaintiff to give effect to the note, which, as before stated, imported by express declaration on its face to have been made for money borrowed.”

      D. Pratt, for the appellants. Wm. O. Buyer, for the respondent.
   Opinion by

Talcott, P. J.,

Smith, J., concurred- Hardin,.J.,. not sitting.

Judgment and order affirmed.


author: Smith, J.

text:
    JOHN EDICK, Respondent, v. JONATHAN M. DAKE, Appellant.

      Action, far deceit — reservation in lease of right to sell — construction of— when, it applies only to the transfer of the rents reserved, and when it tenninates the interest of the tenant.

    Appeal from a judgment of the Livingston County Court, entered on a verdict in favor of the plaintiff, rendered in that court upon a new trial of an action appealed from a justice’s court.
    * The action was brought to recover damages for fraud and deceit. The fraud imputed to the defendant consisted in his inducting the plaintiff to enter into and accept a lease of the defendant’s farm, by falsely; reading its.contents and misrepresenting the same. The lease bore date on the 15th of February, 1875, and was for the term of five years from the first day of April then next. It contained the following condition; “ The said Dake ” (the defendant) “ reserves the right to sell the farm, or a portion of it, as it may be for his interest, at any time, by allowing said Edick to harvest and dispose of what he has then sown on the portion sold.” The plaintiff alleges that the prior verbal agreement was that he was to have the farm for one year at any rate, and for five years if the defendant did not sell; and he further alleges that when the lease was signed, he being unable to read, the defendant read and represented it as in accordance with such verbal agreement, and did not road the condition above trans-scribed. The plaintiff moved some furniture and grain on to the farm; but before the first of April the defendant sold, and the purchaser refused to let the plaintiff take possession under the lease. The jury found for the plaintiff in the sum of $150.
    The court, at General Term, said: “It is contended by the counsel for the appellant, that the condition which the plaintiff alleges was fraudulently inserted in the lease was harmless, as it did not require the plaintiff to yield possession in case of a sale, but merely gave to the landlord the right to sell, and thereby transfer his interest in the rents. If that is the true construction, the lease secured to the tenant a term of five years at any rate, which was not contemplated by either party. But the right of sale reserved to the landlord was on condition that the tenant should be allowed to harvest what he had then sown; which clearly implies that he was to give up possession, reserving the right to take off his growing crops. And as he had not sowed when the sale took place, he had no right to take possession without the consent of the purchaser. Edick applied to the purchaser for the privilege of working the part of the farm which he purchased, but he let it to another person.”
    We think the judgment should be affirmed.

      TV. F. Cogswell, for the appellant. J. Van VoorJus, for the respondent.
   Opinion by

Smith, J.

Present — Talcott, P. J., Smith and Habdxn, JJ.

Judgment affirmed.


text:
    DANIEL E. BAILEY, Appellant, v. THE BUFFALO CROSSTOWN RAILWAY COMPANY, Respondent.

      Officer of corporation — when entitled to compensation for services rendered to the corporation.

    Appeal from a judgment in favor of the defendant, entered on the report of a referee.
    The action was brought to recover upon a claim assigned to the plaintiff, for services rendered in and about the business of the corporation defendant by Daniel L. Bennett, who, at the time, was the vice-president and a director of the corporation.
    The court, at General Term, after saying that “it may be regarded as setted law in this State, that a director of a corporation organized for the pecuniary profit of its stockholders, such as a railway company, is entitled to compensation for his personal services beyond the ordinary range of his official duties upon an actual employment by the company (Jackson v. N. Y. Central Railroad Company, 2 N. Y. S. C. R., 653; S. C. affirmed, 3 id., 1 Corrigenda ’) ; and it is not indispensable that such employment should be by formal resolution, but it may be inferred from circumstances” (id.), proceeded to consider the evidence in support of the claim made in this case, and said:
    “ The plaintiff’s counsel offered to. show that the services rendered in 1875 were in pursuance of an express direction of the president given in January of that yeai\ The evidence was properly excluded. The president had no authority to bind the company by such a direction. The by-law relied upon by the plaintiff’s counsel authorizes the president-to manage, ‘either himself, or through the proper subordinate officers of the company,’ all negotiations with other corporations, etc. Should he conduct such negotiations himself, he would simply discharge an official duty for which he would not be entitled to pay. He could not intrust the business to an agent, not an officer of the company, and we incline to the opinion that any subordinate officer of the company, selected by him for the purpose, would be acting in his official capacity, and would not be entitled to compensation for the service, at least without an agreement on the part of the directors to that effect, express or implied. The bylaws make it the duty of the vice-president to perform all the duties of the president in case of his death, incapacity or absence from the city, and for so doing, it is clear he would not be entitled to pay. The plaintiff did not offer to show that the direction of the president was known to the board of directors, or that it was accompanied by an agreement to pay Bennett for his services rendered in pursuance of such direction.
    “ We think the judgment should be affirmed.”

      John George Milburn, for the appellant. A: P. Laning, fob. the respondent.
   Opinion by

Smith, J.

Present — Talcott, P. J., Smith and Hárdin, JJ.

Judgment affirmed.


text:
    SARAH O. CHAPMAN, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Hinging hell on engine — statement of witness at great distance, that he did -not hear it — inad/missible.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Niagara Circuit, and also from an order of the Special Term denying a motion for a new trial made on a case and exceptions.
    The action was brought to recover for personal injuries to the plaintiff, alleged to have been caused by the negligence of defendant’s servants, at a highway crossing upon the defendant’s railroad. The court at General Term, after holding that the evidence failed to show that the plaintiff listened for the approach of the train, and that her failure so to do in this case, constituted gross negligence, said:
    “We are also .of the opinion that the court erred in permit ting the plaintiff’s counsel to ask the witness Hart whether he heard a bell ring. The object of the question was to show the defendant negligent in not ringing the bell. At the time the witness was unloading wood at his grocery, which was on a street twenty-five rods west of the one on which the collision occurred, and was thirty-five or forty rods from the railroad. When the witness first saw the train, or had his attention called to it particularly, it had passed the crossing after the accident had happened. Up to that time the witness had been in his building,' and there is no evidence that he had noticed whether a bell was rung or not, or that he had given any attention to the railroad or the train. In these circumstances, the fact that he did not hear a bell was entirely immaterial; it would not have authorized the submission to the jury of the question whether the bell was rung, as against positive affirmative evidence by credible witnesses that it was rung (Gulhane r.JY. Y. Gen. é H. R. R. R. Go., 60 N. Y., 133), and as the testimony stood, when the objection was interposed, it was well taken and was improperly overruled. The ruling was quite material, since all the testimony produced by the plaintiff to prove that the bell was not rung was of the like character, while the defendant produced three witnesses who were on the engine, who testified positively that the bell was rung, and two others who were at or near the depot, and who testified that they heard it ring as the train approached the crossing. It is probable that the jury relied upon this negative testimony in finding negligence on the part of the defendants; at any rate, it cannot be assumed that they were uninfluenced by it.
    “ The judgment and order should be reversed and a new trial ordered, costs to abide event.”

      A. jP. Leming, for the appellant. FarneTl $ Burrell, for the respondent.
   Opinion by

Smith, J.

Present — Talcott, P. J., Smith and Haddin, JJ.

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


text:
    LESTER BROTHERTON, Plaintiff in Error, v THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Exception — necessary to enable appellate eow't to review the charge on a trial in the Oyer and Terminer — § 3, chap. 337 of 1855, as amended by chap. 330 of 1858, restricted to trials in New York ¡Sessions.

    Writ of error to the Court of Oyer and Terminer in Cayuga to review the conviction of plaintiff of murder in the first degree.
    In considering the necessity of an exception to bring any matter before the appellate court, the court at General Term said:
    “ The objections now made by the counsel for the plaintiff in error .to the charge of the judge are not available, for the reason that the charge was not excepted to at the trial. In cripiinal cases, a writ of error brings up the record and the bill of exceptions, if one has been duly sealed and filed (2 R. S., 736, § 21), and the court to which the writ is returned has no power to review errors of law unless they are raised by exception. (Hayen v. People, 3 P. C. R., 179; Keefe v. People, 40 N. Y., 348, 357; People v. Thomson, 41 id., 1, 5; Wilhe v. People, 53 id., 525; Slatterly v. People, 58 id., 354).
    “ An exception to this rule is created by statute. (Laws 1855,' chap. 337, § 3). That statute, as amended in 1858 (Laws 1858, chap. 330), is restricted to trials in the Court of Sessions of the city and county of New York. Under that statute, the case of People v. McCann (16 N; Y., 58), was reviewed, in which a conviction was reversed on the ground of a misdirection in the charge, to which no exception was taken.
    “ In civil cases, the court may grant a new trial on a case for a misdirection in the charge, even where there ’ is no exception. (Archery. Hubbell, 4 Wend., 518; Benedict v. Johnson, 2 Lans., 94). But the power does not extend to criminal cases.
    “ Even if we were satisfied that there was a misdirection in this case, we could not, therefore, grant a new trial on that ground, there being ho exception to the charge”

      J. D. Fuller, for the plaintiff in error. 8. F. Payne (district ..attorney), for the defendant in error.
   Opinion by

Smith, J.

Present — Talcott, P. J., Smith and Hardin, JJ.

Conviction affirmed, and proceedings remitted to the Court of Oyer and Terminer in Cayuga to fix another day for the execution of the sentence.


text:
    HENRY TUTHILL and another, Respondents, v. THEODORE BOGART, Appellant.

      Contract for purchase and malting barley, and delivering of same — in whom title vests after its purchase.

    Appeal from a judgment in fiivor of the plaintiffs, entered on the report of a referee.
    The action was brought to recover the value of 2,500 bushels of malt, which the defendant, as sheriff, took from the malt-house of the plaintiffs in Penn Yan, in May or June, 1876, by virtue of an execution upon a judgment against Smith & Gowan, of the city of New York, the sheriff claiming that the malt was the property of the judgment-debtors. The plaintiffs claimed to own the malt, and the question of title depended upon the construction to be given to a contract which was made between the plaintiffs and Smith & Gowan on the 29th of September, 1875, as follows:
    “ The said H. & E. D. Tuthill agree to malt for said Smith & Gowan, a.t their malt-house in Penn Yan aforesaid, twenty-five thousand bushels of barley during the season from the 1st day of October, 1875, to the 1st of June, 1876, at the rate of twenty-five cents per bushel for each and every bushel so malted; the said barley when made into malt to be delivered by the said H. & E. D. Tuthill, free of expense, on board of cars at Penn Yan aforesaid; the said Smith & Gowan to have and receive all the increase of the said barley after the same is manufactured into malt, and the same shall be manufactured in a good and workmanlike maimer upon the following conditions: The said H. & E. D. Tuthill shall purchase the barley in the market at market rates; and the said barley shall consist of fifteen thousand bushels of what is known as six-rowed State, and of ten thousand bushels of what is known as two-rowed State,' and shall be of good quality.
    “And the said H. & E. D. Tuthill shall ship the malt at such times and in such quantities as the said Smith & Gowan may direct, the accumulations of such malt not to exceed six weeks' malting. The said Smith & Gowan are to furnish all bags required for shipment. The said Smith & Gowan agree to accept the drafts of H. & E. D. Tuthill on New York city at sixty days in payment for the purchase of said barley, unless said Smith & Gowan shall furnish such brewers’ notes, indorsed by said Smith & Gowan, having not more than ninety days to run, as said H. & E. D. Tuthill can use, or such as will be satisfactory to them, in place of said drafts or some of them. Said H. & E. D. Tuthill are to furnish and deliver to said Smith & Gowan, at the close of each month of said period, a statement of the amount malted during that month, and said Smith & Gowan agree to pay the same on presentation. The said Smith & Gowan agree to pay the necessary interest and exchange; also insurance on the barley and malt from the time said barley is paid for by said H. & E. I). Tuthill, until it is delivered on the cars aforesaid; also, the interest and exchange on such notes or drafts as may be given in payment for the malt when shipped.
    “ It is further agreed that said H. & E. D. Tuthill may retain and hold, after the first day of June next, a sufficient amount of the malt aforesaid to pay any notes or drafts above mentioned remaining then unpaid as security for the payment thereof until paid.”
    The referee found that the plaintiffs, in pursuance of said contract, purchased several thousand bushels of barley prior to the 1st day of May, 1876, and manufactured the same into malt, a part of which was the malt taken by the defendants; that Smith & Gowan had no leviable interest in the malt so taken; that it was wrongfully taken from the possession of- the plaintiffs; and that they were entitled to receive its value, which was found by the reí^ree to be the sum’ of $2,500, besides interest.

      The court, at General Term, said: “ The contract in question -was a manufacturing contract. The plaintiffs agreed to manufacture for Smith & Gowan a specified quantity of barley into malt. The barley was not to be furnished by Smith & Gowan,. but the plaintiffs were to purchase it in the markets That they were to purchase it as their own, and not as the barley of Smith & Gowan, seems clear. The latter -were not to advance funds for the purpose before the purchase was made, nor did they authorize the use of their credit, or in any way constitute the plaintiffs their agents to buy barley on their account. The provisions in respect to the manner in which purchases were to be made, as that the barley was to be bought in the market at market rates, and was to be of good quality, were not intended as limitations of an agency, but were designed to regulate the quality and cost of the material from which the malt was to be manufactured. It was important to Smith & Gowan to limit the cost, as well' as to provide for the quality of the barley, since the cost of the barley entered into the price which they were to pay for the malt. ' In short, the plaintiffs were to buy their barley on their own account, and the title was to remain in them until the barley was manufactured into malt, and the malt was delivered to Smith & Gowan, as provided by the contract. The stipulation that Smith ■& Gowan were to have the increase of the barley after it was .manufactured -was useless and unmeaning, if the barley was theirs before it was manufactured. The provision that Smith & Gowan should pay interest and exchange on -drafts accepted by them in payment of the purchase-price of the barley, and also insurance on the barley and malt till delivery of the malt on the cars, is not inconsistent with the views above stated. It has no bearing on the question of title. Its effect is simply to impose upon Smith & Gowan the obligation to pay ultimately all the expenses of the transaction, as well as the cost of the barley, leaving to the plaintiffs a clear compensation of twenty-five cents a bushel for manufacturing. If the barley was the property of Smith & Gowan, it was unnecessary to provide that they should be liable for the cost of insuring it. A clause in the contract, much relied on by the counsel for the appellant, is the last, which provides that the plaintiffs may retain sufficient. malt, after the first of June,- to cover any notes or drafts then outstanding. By a preceding provision, the plaintiffs were to complete the malting and delivery by the first of June. The clause in question was intended to modify that provision by allowing the plaintiffs to delay, beyond that date, the delivery of so much of the malt as should be necessary to secure the acceptances and notes then outstanding.
    “We are of the opinion that the judgment should be affirmed.”

      W. F. Cogswell, for the appellant. J. McGuire, for the espondents.
   Opinion by

Smith, J.

Present — Mullin, P. J., Talcott and Smith. JJ.

Judgment affirmed.


text:
    MINNIE L. SPRAGUE, Respondent, v. LAURA L. DUNTON, otherwise known as LAURA L. LOVETT, Appellant.

      Gi'dei• denying motion to require plaintiff to separately number causes of action, and to strike allegations therefrom — when appealable.

    Appeal by the defendant from an order of the Monroe Special Term of October, 1877, denying motions made by defendant for orders requiring the plaintiff to separately state and number the several causes of action alleged to be contained in the third count of the second amended complaint, and requiring the plaintiff to conform to an order made by Justice Dwight, May 2, 1877, and also to strike out certain allegations contained in his pleading In November, 1876, a motion was made to strike out portions of plaintiff’s complaint, which was denied, and the plaintiff was required to “ serve a now complaint, separately stating and numbering the causes of action thereof, or as many of the causes of action as stated in the former complaint in this action as he intends to insist upon.” After service of that order, an amended complaint was served by the plaintiff. Then a second motion was made before Justice Rawsqn, and the motion to strike out certain portions of the complaint was denied; and that to make it more definite by separately stating and numbering the causes of action therein set forth, ivas granted; and the order required the plaintiff within twenty days to serve an amended complaint, “separately stating and numbering the different causes of action thereof.” Thereupon a second amended complaint was served. Whereupon the defendant gave notice of a third motion, which motion was. heard by Justice Rawson October 29, 1877, and he granted the order appealed from, refusing to require the plaintiff to further-number and separately state the causes of action in the complaint, and refused to strike out certain allegations from the complaint.
    The court, at General Term, said: “ It is claimed, in behalf of the respondent, that the order in question is not appealable, as it was made upon a motion addressed to the discretion of the court. In Livermore v. Bainbridge, decided by the Court of Appeals in 1874, and reported in 47 How. Pr., 354, it was held that no appeal lies to the Court of Appeals from an order of the General Term reviewing the discretion of the Special Term. That court, in the opinion of Andrews, J., asserts the'jurisdiction of the General Term to review orders by the Special Term, in respect to matters resting in the discretion of the court which involve substantial rights and interests, and approves of the exercise of such jurisdiction; and the opinion also approves of the case of The People v. W. Y. C. B. B. Co. in 29 N. Y., 418. Andrews, J., adds: ‘ This jurisdiction is convenient, and is indeed essential to the proper administration of justice.’
    “Again, in February, 1875, the Court of Appeals said, as to a matter resting in the discretion of the Supreme Court, that the discretion could not be reviewed in that court, unless the exercise of it had been so gross and excessive as to show an abuse of judicial discretion. (Be Llamosas v. Be Llamoscis, 62 N. Y., 618.)
    “In May, 1875, the General Term in the first department held that an order refusing to strike out allegations as irrelevant, was appealable, and Justice Brady, who delivered the opinion, said : 1 There are, however, it may be said, few questions of practice which, under the existing decisions relating to that subject, may not be presented to the General Term for consideration.” (Pacific Mail Steamship Co. v. Irwin, 67 Barb., 280.) In 1876 the question was presented to the General Term of the third department, and it held that the power of review existed and could be exercised by the General Term as to motions to strike out. '{Town of Essex v. The JT. Y. & O. R.R. Co., 8 Hun, 361.)
    In Field v. Stewart (8 Abb. [N. S.], 198), the Superior Court of New York, upon an appeal from an order made at Special Term denying a motion of the defendants to compel the plaintiff to make his complaint more definite and certain, to state, two causes of action alleged to be contained in one count, separately, and to number the same and to strike out irrelevant and redundant matter therefrom, held, the motion was addressed to the discretion of the Special Term, and refused to review it. That case was decided in 1870, and the case must be considered as in conilict with the later cases cited (supra), (S. C. reported, 41 Iiow., 95.)
    The respondent cites Geis v. Loew (15 Abb. [N. S. J, 94), decided in 1873 by the Superior Court of New York, holding that an order compelling a party to make his pleading more definite and certain is not appealable. That case was not followed by the General Term of the first department in 1874, when the case of Jeffras v, McKillop <& Sprague Co. (reported, 2 Hun, 353) was decided by Lawrence, Davis and Daniels, J J. That was an appeal from an order denying a motion to strike out a portion of the defendant’s answer as irrelevant and redundant. Lawrence, J., says, in considering and concluding, that such an order is appealable, viz': ‘ I think that the decisions of the Court of Appeals in the very recent cases of Livermore v. Bainbridge (47 How., p. 354), and in Gh'ay v. Fisk, have settled definitely that, even in cases where the motion is addressed to the discretion of the justice at the Special Term, an appeal lies to the General Term; and that in such case ,if the justice decides wrongly in the first instance, it is not only the right but the duty of the General Term to correct his error.’ The same rule was adopted by the General Term in the fifth district in Winslow v. Ferguson (1 Lans., 437), opinion by Mullin, J.
    . “ The conclusion is reached that the General Term has jurisdiction, and may entertain the appeal from the order of Justice Rawson of October, 1877.”

      Charles McLouth, for the appellant. S. N. McIntyre, for the respondent.
   Opinion by Hardin, J.; Talcott, P. J., and Smith, J., con-purred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    OLIVER H. P. ARCHER, Respondent, v. THOMAS A. SHEA, Impleaded with B. HENRIGHT, Appellant.

      Promissory note — indorser of — contract of — Accommodation papei-— Usury — how it must be pleaded.

    In an action upon a promissory note, executed in the usual form, the indorser set up as a defense that the maker of the note was a married woman. Held, that this constituted no defense, as it was part of the contract of indorsement that the maker of the indorsed paper was competent to contract in that form.
    The answer further alleged that the note was indorsed for the accommodation of the husband of the maker, and that this fact was' known to plaintiff when he took the note. Held, that, as it was not alleged that the husband was in any way restricted as to the use he might make of the note, this constituted no defense.
    It further alleged that the plaintiff purchased the note at a usurious discount. Held, that this did not show usury, as it was not alleged that the plaintiff purchased from the husband, and the latter might have sold it to a third person at a legal discount, and the plaintiff might have purchased from such third person.
    Appeal from a judgment entered on an order .adjudging the defendant’s' answer to be frivolous.
    The action was brought against the maker and indorser of a promissory note.
    The defendant Shea, for answer to the complaint of the plaintiff therein, alleged:

      “ First. That the defendant, B. Henright, at the time of making the note set out in said complaint, was a married woman, the wife of Henry Henright.
    “ Second. Denies that Thomas A. Shea for value indorsed the note mentioned in said complaint, and denies that he delivered said note so indorsed to M. Kilgour; but alleges that he delivered the said note -to said Henry Henright, who was the agent of B. Henright, and simply for his accommodation and without consideration, and that the plaintiff herein, as defendant is informed and believes, well knew that the defendant was simply an accommodation indorser thereon when he took said note.
    “ Third. That when said plaintiff purchased said note, a greater discount was allowed and received by him than the legal interest due or to become due on said note.”

      F. W Taber, for the appellant.

      Field & Dezyo, for the respondent.
   Daniels, J.:

The action was prosecuted against the defendant as the indorser of a promissory note, alleged to have been made by a married woman. That circumstance was relied upon as one which would render the indorsement made, inoperative as a legal agreement. But such clearly is not the law; for it is part of the contract of indorsement that the paper indorsed has been made by a person competent to contract in that form. And consequently, the fact that the maker may not have become legally bound, affords no defense to the action brought upon the paper against the indorser. (Erwin v. Downs, 15 N. Y., 575.)

The next fact alleged, by way of defense, is that the defendant indorsed the note for the accommodation of Henry Henright, to whom it was delivered, and that the plaintiff received it knowing that to be the fact. It was not alleged that Henright was in any form restricted in the use which he might make of the defendant’s indorsement. For that reason, he was at liberty to use it in any way that might prove beneficial to himself. (Seneca Co. Bank v. Neass, 3 Comst., 443.)

In the further defense stated, it was not averred that the plaintiff received the note from Ilenriglit, but simply that he purchased. it at a' greater rate of discount than the legal interest due, or to become due upon it. ' If, as the plaintiff alleged, he received the note from some person to whom it had been previously transferred, he could very well purchase it at a greater rate of discount than seven per cent, without rendering it usurious in his- hands. If that were not the fact, the answer should have shown it; for, in the absence of a different allegation, the court is required to presume in favor of the legality of the transaction through which the plaintiff received the note.

All that the defendant has stated in his answer may very well be true, and still the purchase of the note at a rate of discount exceeding seven per cent, by the plaintiff may not have been-usurious. It is entirely consistent with all that has been stated, that Henright negotiated the note in a perfectly legal manner to some person, under whom the plaintiff afterwards acquired his title to it. And if he did, the purchase of it by the latter, at the rate of discount stated, would not be usurious; for a person who may have become the owner of the note upon an adequate consideration could afterwards sell it on any terms he might deem it judicious to accept. The answer in this and in other respects was entirely insufficient to present the defense of usury. (Manning v. Tyler, 21 N. Y., 567.) And as nothing but the matters already considered was contained in it, the order adjuding it to be frivolous was plainly proper. The judgment should, therefore, be affirmed.

Ingalls, P. J., and Pottek, J., concurred..

Judgment affirmed.


text:
    MARY A. MACDONALD, Respondent, v. JAMES MACDONALD, Appellant.

      CItange of venue — order refusing appealable,.

    An, order denying a motion to change the place of. trial, for the. convenience, of ■witnesses, is appealable to the General Term.
    Appeal from an order denying a motion-.to change the place of trial.

      E. Eewcombj for the appellant.

      W O.' Trull, for the respondent.
   Daniels, J.:

The object sought to be obtained by. the prosecution of this action is a limited divorce, because of the cruelty of the defendant in the course of the marital intercourse of the parties. By the complaint none of these acts are stated to have been committed in the county of New York. But they are alleged to have mostly taken place in Essex county, where the parties resided and lived together, -and at a hotel in the city of Albany, where they were at the time temporarily located. These circumstances warrant the inference that the witnesses, whose evidence must be relied ■ upon to substantiate as well as to disprove the charges made, will be found in those localities. And that inference is very decidedly supported by the affidavit of the plaintiff herself, who only claims that she has three witnesses in the city of New York who can be expected to be of any service to her upon the trial of the action. And from the affidavit of one of them it appears to be very doubtful whether they can be relied upon by her for any favorable evidence in support of her case.

The defendant is charged with habits of intoxication and acts of marital misconduct of a most aggravated character. If these charges are well founded, the place of his residence, where he must have been almost constantly observed, and where these acts may be authenticated by evidence, is the proper locality for their investigation. It is much more probable that the truth can be ascertained, and justice between the parties administered there than elsewhere. And the affidavit, made by the defendant in sup-' port of the motion for a change of the place of trial, very surely sustains the correctness of that conclusion. For, while he has enumerated and named many persons whose attendance will not ' probably be required as witnesses, there are still many others whose evidence will be both material and important. And for that reason, as there are no very material witnesses for the plaintiff in this county, the motion made ought to have been allowed to prevail.

It has been. objected that the order denying the motion is not appealable, but in a case of this nature, where the probabilities are all in favor of the application, that cannot be held to be the true construction of the law. It has been provided that the place of trial may be changed where the convenience of witnesses and the ends of justice will be thereby promoted. (Code of Civil Procedure, § 987, sub. 3.) In the case of Fisk v. Albany & Susq. R. R. Co. (41 How., 365), a doubt was expressed whether an appeal could be sustained from an order of this description. That doubt was placed upon the fact that the mere convenience of the witnesses in the case was not a substantial right of the party applying for the change. But it will be observed from the language of the section referred to, that another object shoidd also be considered in the determination of the question. And that is whether the ends of justice will not be promoted by the change. If they will, then it is the right of the party to have the change made, and the . denial .of the motion would necessarily affect a substantial right and render the order a proper one for an appeal.

By requiring the party to secure the attendance of a large number of witnesses in a distant county, great expense and inconvenience must be imposed upon him and them; and where that is not to be counterbalanced by the convenience of the witnesses of the adverse party, no legal justification for the alternative can be discovered. Then both the convenience of the witnesses and the cuds of justice combine in favor of the application; and the right to have it prevail is substantial within the rule adopted in the case of People v. N. Y. Central R. R. (29 N. Y., 418). That was the view which was adopted in Wiggin v. Phelps (17 N. Y. Sup. Ct. R., 187). And in principle it was afterwards followed in Hoffman v. Sparling (19 id., 83). These authorities, as well as the •objects to be obtained, as they have been mentioned in the statute, ■render the order made in this case appealable; and the circum.'stances require that it should be reversed, and an order entered changing the place of trial to Essex county, upon the condition that, within ten days after notice of this decision, the defendant •stipulate that the plaintiff may have the evidence of such witnesses as she shall desire to have examined in the city of New York, whether residing here or in the state of New Jersey, taken before a referee in this city and read upon the trial, with the same effect as though the witnesses themselves personally attended such trial.

Ingalls, P. J., and Potter, J., concurred.

Ordered accordingly.


author: Daniels, J.: Brady, J.:

text:
    JAMES R. WHITING, Jr., as Administrator, Etc., of JAMES R. WHITING, Deceased, Respondent, v. THOMAS GEARTY, Impleaded with JOSEPH L. T. SMITH and others, Appellant.

      Assumption of mortgage by grantee — when release by grantor, invalid.

    A ’bond and mortgage were given to plaintiff’s intestate by Smith, who subse- , . quently sold the property to the defendant Gearty, who, in the deed, agreed to assume and pay the same. This action was brought to foreclose the mortgage, the complaint praying for a judgment against Gearty for any deficiency that might arise upon the sale. After the commencement of this action, Smith released Gearty from his agreement to assume and pay the mortgage.

      Heldr that, as the plaintiff knew of the agreement and had accepted the same before the release was executed, his right to enforce the same was not affected thereby.
    Appeal from so much of tbe judgment recovered in this action, as adjudges the defendant Gearty to be liable for any deficiency, remaining unpaid after the sale of the mortgaged premises déscribed in the complaint herein.

      . E. Ellery Anderson, for the appellant.
    The covenant in the deed, by which Gearty assumed payment of the mortgage, was strictly matter of contract between Gearty and his grantors, the Smiths. It, therefore, follows that it was competent for the Smiths to alter or rescind the terms of their bargain with their grantee. (Stephens v. Casbacker, 15 N. Y. Sup. Ct. Rep., 8 Hun, 116; Halsey v. Reed, 9 Paige, 446; Blyer v. Manholland, 2 San. Chy., 478.) It is no . objection to the release that it was executed after suit brought. ( Willis v. Chipp, 9 How. Pr., 568; Hartley v. Harrison, 24 N. Y., 170.)

      II. P. Allen, for the respondent.
    The liability of the defendant Gearty, under the covenant or promise in the deed, by which he assumed and agreed to pay this mortgage,'was absolute, unconditional and irrevocable. (Ricard v. Sanderson, 41 N. Y., 179;-Garnrsey v. Rogers, 47 id., 238; Thorp v. Keokuk Coal Co., 48 id., 253; Burr v. Beers, 24 id., 178; Lawrence v. Fox, 20 id., 268; Campbell v. Smith, 15 N. Y. Sup. Ct. R., 6; Simson v. Brown, 13 N. Y., 251.) The release executed by the defendants, Smiths, was wholly ineffectual to discharge Gearty from his liability to the plaintiff. (Simson v. Brown, .6 Hun, 251.) Simson v. Brown, above,reversed by Court of Appeals, but upon the peculiar facts in that case, and not on the principles of law announced by the court at General Term. (Law & Equity Reporter, May, 1877, p. 612.)
   Daniels, J.:

The action was brought for the foreclosure of a mortgage on premises in the city of New York, made by Joseph L. T. Smith and George H. Smith to James R. Whiting, deceased, to secure the sum of ten thousand dollars.

Joseph L. T. Smith and wife, and George H. Smith and wife, aferwards conveyed the mortgaged premises to Thomas Gearty. The deed contained the following clause: * * * “ Subject, nevertheless, to certain indentures of mortgage, amounting in the aggregate to fifteen thousand dollars, which the party of the second part hereby agrees to assume and pay off, the same being a part of the consideration of this conveyance.”

The mortgage sought to be foreclosed is one of the mortgages here referred to. Joseph L. T. Smith and George H. Smith, by an instrument dated December 13, 1876, in terms released and discharged the said Thomas Gearty from his assumption of the payment of the mortgage in question.

The complaint prays for a deficiency judgment against Thomas Gearty. The answer of Thomas Gearty sets up the release, and asks that, in so far as the complaint prays for a deficiency judgment against him, the prayer of the complaint be denied.

The court, at Special Term, directed the usual judgment of foreclosure, and also that the defendant, Thomas Gearty, pay to the plaintiff any deficiency that might arise.

The release was executed after the obligation of the defendant had become known to the plaintiff, and after the eomméííóement of this action, one of the objects of which was to enforce the liability created by means of it. The effect of the deed and the acceptance of it by the defendant, was to bind him personally to the performance of the obligation mentioned in it, and that was to pay oft’ the mortgages assumed by the grantee. With the mortgage in suit, the grantors had executed their bonds for the payment of the debt. They had become personally bound themselves, and for that reason, within the earlier as well as the later cases, the clause by which the defendant, as grantee, assumed payment of the same debt, charged him with a personal liability to the owner of the mortgage. (Trotter v. Hughes, 2 Kern., 74; Belmont v. Coman, 22 N. Y., 438; Burr v. Beers, 24 id., 178.; Ricard v. Sanderson, 41 id., 179; Thorp v. Keokuk Coal Co., 48 id., 253; Thayer v. Marsh, 11 Hun, 501.) And in that respect the case differs from the agreements for indemnity, which formed the subject of consideration in Simson v. Brown (13 N. Y. Sup. Ct. R., 251), which was afterwards reversed by the Court of Appeals; and Merrill v. Green, (55 N. Y., 270).

The question, and the only question in this case is, whether that liability can' be Released by the grantor through whose instrumentality it was created, after it has become known to the party intended to be benefited by it, and he has brought his'action to enforce it. In the absence of notice of the existence, or acceptance, of the obligation by the party to whom payment is to be made, it has been held that it may be released by the person creating the obligation. (Kelly v. Roberts, 40 N. Y., 432.) But that was deemed to result from the circumstance that no privity under' those circumstances existed between the grantee and the person whose debt was agreed to be assumed by him. A clear implication is to be derived from the opinion of the court in that case, that a different conclusion would have been required if the creditor had appeared to have known and accepted the substituted liability. The only authority in which it has been held that notice and acceptance of the liability did not prevent the grantor from releasing the grantee from the performance of the agreement to pay, is that of Stephens v. Casbacker (15 N. Y. Sup. Ct. Rep., 116). But that was decided by a divided court, and seems to. be opposed to the intention and effect of the agreement made, after it has been followed by the acceptance of the creditor. In deciding the case of Garnsey v. Rogers (47 N. Y., 233), it was stated by Judge Raparlo in the course of the opinion of the court, which was delivered by him, that where such an assumption is made on an absolute conveyance of land, it is unconditional and irrevocable. The grantor cannot retract his conveyance or the grantee his promise or undertaking ; (id., 242), -which, however, was probably designed to be subject to the understanding that the agreement should first come to the knowledge of, and be accepted by, the creditor whose debt was to be paid. For, before that, there would be no privity of contract between the parties immediately interested in the agreement. But by such acquiesence and acceptance, the creditor makes himself a party to the agreement intended for his benefit. He adopts the promise made to the grantor for him, and is after-wards entitled to insist upon the performance of it.

Upon this subject Earl, Commissioner, in his opinion in the case of Thorp v. Keokuk Coal Go. (supra), said that “it is sufficient if the promise be made by the promisor upon a sufficient consideration passing between him and his immediate promisee; and when the third person adopts the act of the promisee in obtaining the promise for his benefit, he is brought into privity with the promisor, and he may enforce the promise as if it were made directly to him.” (Id., 257.) The right of action upon the promise, in that event, vests in the person whose debt has ■ been. agreed by it, to be paid, and from that time the only person who can release and ' discharge it, is the individual in. whom, the right of action to enforce it has become vested. The obligation then becomes a subsisting right of action which he-cannot be afterwards deprived of by the unauthorized act of the party inducing the promise. (Green v. Burke, 23 Wend., 490, 496; McKnight v. Dunlop, 1 Seld., 537.) It was there held to be a general legal proposition that, “wherever a right of action has once vested in a party, it can only be destroyed by a release-under seal, or by the receipt of something in satisfaction of the wrong done.” (Id., 544.) The release here referred to must, of course, be that of the party vested with the right. For the right of action can properly be discharged only by him or some one-acting under his authority; and that was not done in this case.. The weight of authority, as well'as the sound reason of the case, are both opposed to the legal validity of the instrument upon which the defendant relied for his defense; the transaction had gone beyond the power of the grantors in the deed, by acceptance of the liability imposed upon the grantee, for the benefit of the mortgagee. For that reason the case of Stephens v. Casbacker (supra), should not be followed, but the judgment appealed from, should be affirmed, with costs.

Davis, P. J., concurred.

Brady, J.:

It may be, that under the circumstances disclosed in this case, that the rule declared is unexceptionable; but I do not assent to the proposition that the mortgagor may not release a grantee from the payment of the mortgage assumed for his benefit. The agreement is one between the mortgagor and grantee, and not between the mortgagee and grantee, and is for the benefit of the mortgagor*

Judgment affirmed, with costs.