text:
    Otto Hoske, App’lt, v. Henry Gentzlinger, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Landlord and tenant — Notice to quit.
    Where a tenant from month to month gives notice of his intention to quit at the end of the month, the landlord is entitled to remove him for holding over, without giving him the five days’ notice required by chap. 357 of 1889.
    Appeal from a judgment entered on a verdict in favor of defendant.

      William N. Cohen, for app’lt; Alfred & Charles Steckler, for resp’t.
   Brown, P. J.

This action was brought to recover damages for an alleged unlawful entry upon property on Graham avenue, in the city of Brooklyn, of which the plaintiff claimed to be in possession o's a tenant of the defendant, and for injury to property therein. It appeared that the plaintiff had been in occupation of the premises as a monthly tenant of the defendant for upwards of three years. On June 1, 1891, he paid the rent for the month in advance to William Gentzlinger, the defendant’s son and agent, and received a receipt which stated that the rent was for the month “to commence June 1, 1891, and ending July 1, 1891.” William Gentzlinger testified that when plaintiff paid him that rent he told him that he had bought a house on Meeker avenue, and that he would move out of defendant’s house at the end of June. That the witness could put up notice “To let,” and if any one came to see the house he would let them come in, and would show it to them. Thereafter two notices were put on the premises. One was, “This house to let,” and the other, “This business will remove to 50 Meeker avenue.” The former remained on the house until a short time prior to July 1st, when it was rented to another tenant; and the latter, until it was removed by the defendant’s agent. On July 1st the plaintiff tendered to William Gentzlinger the rent for the month of July, which was refused, and in the afternoon of that day defendant, by his agent, broke open the door of the store on the first floor of the building, and removed therefrom such property as was then therein. The amount and value of this property was in dispute, but it is of no importance upon this appeal.

By chapter 357, Laws 1889, it is provided :

“No monthly tenant shall hereafter be removed from any lands or tenements in the city of New York or in the city of Brooklyn, on the ground of holding over his term (except when the same expires on the. first day of May), unless at least five days before the expiration of the term the landlord or his agent serves upon the tenant, in the same manner in which a summons in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy, and that unless the tenant removes from said premises on the day on which his term expires, the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

The court charged the jury that, if the tenant gave notice of his intention to quit at the end of the month, it was not necessary for the landlord to give the five days' notice required by law, and that the defendant had a right to take possession on July 1st, to which the plaintiff took an exception. We are of the opinion that this charge was correct. The statute quoted was enacted for the benefit of tenants. It required from a landlord a notice of his intention to terminate a tenancy, and protects tenants from removals without being afforded an opportunity to secure other property. But it has no application to a case where the tenancy is terminated by the act of the tenant. In such a case there is no reason that the landlord should serve a notice, and such a requirement would be a useless one. The plaintiff having terminated the tenancy, it was his duty to remove the property on July 1st, and the defendant was entitled to take possession, provided he could do so without violence or a breach of the peace. As to the landlord’s right to possession at the termination of the lease, there can be,, of course, no question. He might enforce such right through a judicial proceeding, but he was entitled to re-enter on the property without judicial process, provided he could do so without violence or a breach of the peace. The true owner may always regain possession in a peaceable manner of his own property, and when the entry is a peaceable one he may lawfully resist the attempt of a former occupant to regain possession. The testimony shows that prior to July 1st the plaintiff had removed his family and substantially all of his property to the house on Meeker avenue. The store was unoccupied, and the door locked. It was not wrongful to the plaintiff, for the defendant to break the lock on the door. In doing so defendant injured no property except his own, and the act was not an invasion of any of the plaintiff’s rights. There are other exceptions in the case, but they are without merit, and require no notice.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    Nettis Fieseler, App’lt, v. George H. Stege, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 13, 1895.)

    Pleading — Fraud.
    A complaint, in an action to set aside a chattel mortgage and a judgment which alleges an agreement that plaintiff was to give defendant a chattel mortgage of $250 in full settlement of his judgment against her husband, that, in pursuance of the agreement, she unfamiliar with legal papers and unable to read English, signed papers presented to her on the assurance and in the belief that she was signing said chattel mortgage, that defendant, fraudulently taking advantage of her ignorance, procured her to sign a confession of judgment for §1,464.45 and a chattel mortgage to secure such amount, and that judgment was entered on the confession and the chattel mortgage filed, is not demurrable on the ground of not stating a cause of action for fraud.
    Appeal from a judgment, sustaining a demurrer to the complaint.

      Horace Secor, Jr., for app’lt; Uriah W. Tompkins, for resp’t.
   Brown, P. J.

The complaint in this action alleged the recovery of a judgment against the plaintiff’s husband by the defendant and one Behrman on or about November 17, 1891, for $1,464.45, and a levy by the sheriff of Kings county under said judgment upon property belonging to the plaintiff, and an agreement that the plaintiff should give to the defendant a chattel mortgage upon her property for $250 in full settlement of the said judgment. The third and fourth allegations of the complaint were as follows :

‘‘(3) That plaintiff was unfamiliar with legal papers, and was unable to read. English; and that in pursuance of said agreement she signed such papers as were presented to her, on the assurance and in belief that she was signing said chattel mortgage. (4) On information and belief, that the defendant, fraudulently taking advantage of plaintiff’s ignorance, procured her to sign a statement for the entry of a judgment by confession in his favor, dated August 3,1892, for the sum of $1,464.45 (being the amount of the aforesaid judgment against her husband), with interest from November 17, 1891; and also procured her to sign a chattel mortgage in his favor, dated August 3, 1892, to secure the payment of $1,464.45 three years from date, with interest from November 17, 1891.”

It further alleged the entry of judgment against the plaintiff upon confession in the supreme court on August 3, 1892, and the filing of a copy of said chattel mortgage in the office of the register of Kings county on the same day;' that said confession and mortgage both stated that they were given in satisfaction of the judgment against plaintiff’s husband, and that said judgment had been satisfied, and that her said husband was insolvent. The relief demanded was that said mortgage and judgment be declared void, and canceled of record, and that the original chattel mortgage be delivered up and canceled. To this complaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the special,term, and the plaintiff has appealed to this court. > While the facts upon which the charge of fraud rests might with propriety be set out more specifically by the plaintiff, we are of the opinion that a cause of action is stated, and that the demurrer should have been overruled. In the fourth paragraph of the complaint the plaintiff alleges that the defendant, fraudulently taking advantage of her ignorance, procured her to sign the confession of judgment'and the chattel mortgage. The ignorance' of which advantage was taken was her inability to read English,, which fact is alleged in the third paragraph; and the act which constituted the fraud is alleged to be “the assurance” that she with signing “said chattel mortgage,” which meant a chattel morgage for $250. The word “ assurance ” is there used to mean “ representation,” “declaration,” or “persuasion,” and such declaration was made to her by the person presenting the paper. Such is the fair meaning of the allegation that “she signed such papers as were presented to. her on the assurance * * * that she was signing said chattel mortgage.” While it is not alleged that the defendant, was the person who made the representation, it is plain that it was-either him, or some one acting for him; and, in either event, the' false representation or declaration was a fraud' which would vitiate the transaction, and justify the relief" which the plaintiff sought. The fraudulent acts which induced the execution of the two instruments which the plaintiff sought to have set aside were therefore sufficiently alleged, and the demurrer was not well taken.

The judgment should be reversed, the demurrer overruled, with costs of trial, and the defendant have leave to answer in twenty days upon payment of costs.

All concur.


author: GIEGERICH, J. Bookstaver, J.

text:
    Herman Markowitz, as Administrator, etc., Resp’t, v. Dry Dock, East Broadway and Battery Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed January, 1895.)

    1. Evidence — Negligence.
    In an action for personal injuries, subsequent changes in the place or cause of the accident are inadmissible.
    3. Same — Proof of age.
    The certificate of a coroner, made in compliance with section 604 of the Consolidation Act, is admissible as evidence of the decedent’s age, under section 631 of act.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.

      John M. Scribner, for app’lt; Aaron Kahn, for resp’t.
   GIEGERICH, J.

The supplemental complaint, among other things, alleges that the tracks of the defendant, among other places, extended and ran over and along Grand street, between Goerck and Mangin streets, in the city of New York ; that it was the duty of the defendant to keep that part of said street adjacent to and along which said track ran and extended free from ice, snow, and accumulations and obstructions of every kind and n&turc; ‘‘ that on or about January 25,1891, and for some time previous thereto, the defendant unlawfully, wrongfully, negligently, and carelessly placed, put, and accumulated snow, ice, and mud along and near said track in said Grand street, opposite Goerck street, and unlawfully, wrongfully, and carelessly permitted the same to remain there until said accumulations had formed and been frozen into ice banks, so much so that the same formed an obstruction to the public in lawfully traveling across said street that on said day one Henry Friedman was carefully traveling across said street opposite said Goerck street, and, in order to do so, he was necessarily compelled to cross and pass over said track of the defendant and said bank of snow, ice, and mud, and while so crossing the said track along said public highway, and as he reached said track, a car of the defendant rapidly approached the place where said Henry Friedman was passing, and, in consequence of the negligence of the driver thereof, threw him down on the ground, and passed over his right leg, and he was, thereby so injured as to cause his death. The supplemental complaint also alleges the appointment of Wilhelmina Friedman as administratrix of the goods, chattels, and credits of her deceased husband ; her death, and the appointment of the plaintiff as administrator de ionis non of said Henry Friedman, deceased; and his substitution as plaintiff in the place and stead of said Wilhelmina Friedman, deceased. The answer contains a specific denial of each allegation of the supplemental complaint, except the incorporation of the defendant, which is admitted. The testimony adduced on the part of the plaintiff tended to show that the defendant helped to create the snowbank which prevented the escape of plaintiff’s intestate from the rapidly approaching car, which ran him down. Markowitz, the plaintiff, testified that he saw a snow plow or sweeper of the defendant, with its own name thereon, sweeping up the snow upon the said bank, which in a few days became frozen to ice. This was disputed by defendant’s witnesses, who claimed that plaintiff was mistaken in reference to the snowplow he saw ; and, according to the testimony of the witness called by the defendant, said snowbank was not created by the snowplow of the defendant or any other company, but was composed of snow removed by citizens from the sidewalk and the back yards of adjacent premises, and by them deposited in "the street, after the railroad companies had removed and carted away all snow from the place where the accident happened. In rebuttal, the plaintiff was recalled, and, against the defendant’s repeated objections and exceptions, testified to the removal of said snowbank by the defendants on the day after the accident. The appellant insists that error is predicable of the admission of this evidence.

The ruling of this court in Brennan v. Lachat, 14 Daly, 197 ; 6 St. Rep. 278, that evidence of repairs immediately after the accident was admissible as showing some evidence of their being needed, has been overruled by the subsequent decisions of the court of appeals in Corcoran v. Peekskill, 108 N. Y. 153; 13 St. Rep. 105, and in the still later case of Clapper v. Town of Waterford, 131 N. Y. 382 ; 43 St. Rep. 316. These cases hold that the question whether the defendant was negligent must be decided upon the facts as they existed at the time of the injury, irrespective of facts occurring subsequent thereto. But to this rule there is an exception, distinctly recognized by the court in the last cited case; and that is, where there is a dispute as to the defendants control or authority over the place where the accident happened,the latter’s acts after the accident may be admitted, not as bearing upon the issue of negligence, but for the purpose of showing the exercise of authority or control over such place. Sewell v. City of Cohoes, 75 N. Y. 45, 54; Morrell v. Peck, 88 id. 399. One of the issues presented by the pleadings is whether the defendant erected said snowbank, and permitted the same to remain for such an unreasonable length of time that it became an obstruction in the street; and hence the testimony-of the plaintiff as to the removal of the snowbank by the defendant after the accident was relevant. It may be argued that the testimony so admitted should have been expressly limited in its application to the question of control or dominion of the snowbank by the defendant. As it was relevant to an issue in the case, such evidence could not have been excluded, Platner v. Platner, 78 N. Y. 95 ; Hagarty v. Andrews, 94 id. 195; 1 Rice, Ev. p. 499, § 252; but, if its express restriction to such issue was deemed desirable by the defendant, a request to-that effect should have been made at the trial. The record, however, fails- to show such a request; and therefore the defendant’s rights, if any, have in this respect been waived.

It is insisted that it was not the duty'of this railway company to remove.said snowbank; but as the jury, by its verdict, has found that such bank was placed in the locality noted and allowed to remain there for an unreasonable length of time by the defendant company, it should be held liable for the consequence of its maintenance of a public nuisance, Davis v. Mayor, 14 N. Y. 506, 524; Lamming v. Galusha, 135 id. 239, 242; 47 St. Rep. 831; and therefore it cannot claim exemption from liability because that duty may also have devolved upon others. Dixon v. Railroad Co., 100 N. Y. 170, 178. Hence the defendant’s exception taken to the ruling of the learned trial judge in excluding from the evidence chapter 677 of the Laws of 1872 and chapter 335 of the Laws of 1873 appears to me to be without merit.

There was a conflict upon the trial as to the age of plaintiff’s intestate when he received the injuries which resulted in his death four days later. Plaintiff’s counsel told the jury, in his opening, that the deceased was about fifty-five to sixty years of age. The plaintiff testified that he was sixty-seven years old, but. the defendant’s testimony, on the. other hand, showed him to be seventy-six years of age. Defendant’s counsel offered in evidence a copy of or transcript from the certificate or record of death filed with the health department of the city of New York by the coroner who held the inquest upon the body of plaintiff’s intestate, containing the particulars called for and required by section 604 of the consolidation act (chapter 410, Laws 1882), said copy or transcript being authenticated in conformity with section 621 of the said act, and from which it appears that intestate was, at the time of his death of the age of seventy-six years, eight months, and eighteen days. This was objected to as incompetent, inadmissible, and hearsay. The court excluded the paper -writing, to which ruling the defendant’s gounsel excepted. Plaintiff’s counsel stated that the objection went solely to the statement of age contained in the certificate; but, as the defendant’s counsel insisted upon offering it “ as evidence of everything contained' in it,” the court was obliged to rule upon the whole offer, and in so ruling sustained the objection.

Section 604 of the consolidation act requires coroners of the city of New York who have held an inquest to file with the health department a certificate specifying, “ as near as the same can be ascertained, the name and surname, age, occupation, term of residence in said city, place of nativity, condition in life, whether single, married, widow, or widower, color, last place of residence, and the direct or indirect cause of death of such person.

Section 621 of the same act prescribes:

‘‘ All courts shall take judicial notice of the seal of said board and of the signature of its secretary and chief clerk. Copies of the record of the proceedings of said board (health department) * * * and books, and papers constituting part of its archives, when authenticated by its secretary, or secretary pro tempore, shall be presumptively correct in any court of justice, or judicial proceeding, when they may be relevant to the point or matter in controversy, of the facts, statements, and recitals therein contained.”

In Woolsey v. Trustees, 84 Hun, 236 ; 65 St. Rep. 743, 746, the court in passing upon a similar statutory provision, said :

“ While it is quite apparent that the primary object of the legislature in enacting these provisions of law was to furnish information upon the subject of vital statistics for sanitary purposes, yet it is manifest that the language employed is broad enough to make these certificates such as the act expressly declares, shall be admit-_ ted in all the courts of this state as prima jacie evidence of the facts therein set forth.’ Under such circumstances, we think the certificates were competent evidence.”

The case of Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass’n, 126 N. Y. 450; 38 St. Rep, 247, cited by respondent’s counsel, is clearly distinguishable from the one at bar, in that the statute under which the physician’s certificate was filed (title 12, chap. 519, Laws 1870, as amended by subdivision 5, § 10, tit. 12, chap. 181, p. 335, Laws 1885) contains no provision whatsoever for making such certificate evidence of the facts therein set forth ; but in the present case ample provision therefor has been made by the legislature, which, as may be pointed out in passing, has at all times authority to make, modify, and control the rules of evidence. Howard v. Moot, 64 N. Y. 262 ; People v. Cannon, 139 N. Y. 32 ; 54 St. Rep. 431. There is still sa further and an important distinction to be drawn between said case and the present one. In the former the certificate was made by one who was not a public officer; while in this it was made by a judicial officer (see 1 Rev. St. [Banks Bros.’ 8th ed.] pt. 1, p. 390, chap. 5, tit. 4 art. 4, § 49), whose duty it was to inquire into and ascertain the matters set forth in his certificate. Consequently, the same should, for all purposes of the case, be viewed as a public document. Rice, Ev. pp. 186, 187, § 126. For reasons similar to those last stated, in the case of McKinley v. Insurance Co., 6 Misc. Rep. 9; 58 St. Rep. 122, is also distinguishable from the present one. It is manifest that the attention of the court was not called in that case to the consideration adverted to, and therefore the decsion rendered is not supported by the case of Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass’n, supra, cited as sanctioning it. I have examined the other cases cited by respondent’s counsel, but find that they are not in point.

It follows from these views that the exclusion of the paper writing in question was error, which to me appears to be so radical as of itself to necessitate a reversal of the judgment, and therefore it is not essential that we specifically consider other points urged by the appellant upon this appeal. The judgment should therefore be reversed, and a new trial ordered, with costs to abide the event.

Bookstaver, J.

I cannot concur in the conclusion of the leárned judge who writes in this case as to the admissibility of the evidence tending to show the removal of a snowbank from the line of defendant’s road on the day after the accident. The ruling, was, doubtless based on Brennan v. Lachat, 14 Daly, 197; 6 St. Rep. 278, and was fully justified by that case. But Brennan v. Lachat, was decided in 1887, and followed the rule apparently laid down in Dale v. Railroad Co,. 73 N. Y. 468. Since that time the court of appeals has distinctly held that such evidence is inadmissible to show negligence on the part of a defendant. Corcoran v. Peekskill, 108 N. Y. 153 ; 13 St. Rep. 105; Clapper v. Town of Waterford, 131 N. Y. 382; 43 St. Rep. 316. But the judge who writes in the case thinks the ruling may be sustained on the ground that it was admissible for the purpose of showing the exercise of authority or control over the place where the snowbank was. I do not think that it is necessary to decide that question in this case. It is true, as he states, that among the issues presented by the pleadings is the question whether the defendant caused the snowbank in question, and permitted it to remain for such an unreasonable length of time that it became an obstruction in the street. But it was incumbent upon the plain ti ff to offer such evidence as he had on that question in chief. The testimony objected to was offered in rebuttal. Besides, the testimony offered was capable of various interpretations, and the necessary inference from it was not that the defendant caused the snowbank, or had permitted it to remain an unreasonable length of time, - while it was subject to the criticism well expressed in Gorcoran v. Peekskill, supra, that:

“After an accident has happened, it is ordinarily easy to see how it could have been avoided, and then for the first time it frequently happens that the owner receives his first intimation of a ■ defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition, or that •the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe, and secure. While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.”

The evidence shows that the track at the point of the accident was used, but not owned, by the defendant company ; that it was the property of the Forty-Second Street & Grand Street Railroad Company, and was leased to the defendant company under an agreement between the two whereby the Forty-Second Street Company assumed the duty and obligation of keeping the track in good repair, and free from snow and ice. It also shows that the defendant company’s snowplow had been used on this portion of the track, and that by reason thereof the snow was thrown between the track and the sidewalk. Now, the corporation ordinance in force in 1881 (article 28, sections 268-278) required the company making use of such snowplow to remove and carry away the snow so thrown up under certain penalties, and it was, doubtless, because of this that the snow was removed. The mere compliance with a corporation ordinance should not be regarded as any evidence as to the exercise of dominion over that portion of the street, nor was it apparently offered for that purpose. Still, it is not clear that it did not tend to prejudice and influence the minds of the jury against the defendant. If it had been important for the plaintiff to show the exercise of dominion or the right to exercise such dominion, it could have been accomplished by the introduction of evidence which could not have been misconstrued. I therefore think that the admission of this evidence was erroneous, and that the judgment should be reversed for this reason, as well as for the error pointed out in the remaining portion of the opinion.

Bischoff, J., concurs.


author: Bookstaver, J.

text:
    The People, Pl’ff, v. Equitable Mutual Fire Insurance Company, Def’t.

      (New York Common Pleas, General Term,

      Filed May 1895.)

    1. Insurance companies — Mutual—Dissolution.
    Subdivision 4, section 1785 of the Code, which authorizes the dissolution of an insurance company in certain cases, is limited by the provisions of section 48, chap. 690 of 1892.
    2. Same — Insolvency.
    The capital stock notes of a mutual insurance company must be taken into account, in determining the company’s solvency.
    Motion for the appointment of a temporary receiver.
    The Attorney General and Benno Loewy, for the motion; Kenneson, Crain & Alling, opposed.
   Bookstaver, J.

Upon the 30th day of April, 1895, the above-entitled action was begun by the attorney general to “vacate the charter of, annul the existence of, and disolve the defendant corporation.” The complaint also prays for an injunction pendente lite restraining the defendant, its officers and agents from transacting any corporate business, or in any manner transferring, disposing of, or interfering with any of its property or assets, and for the appointment of a temporary receiver of such property and assets, and for the appointment of a permanent receiver upon the dissolution of the defendant.

As above indicated, the particular question now presented for decision is the application for a temporary redeiver. The complaint alleges that the defendant is a mutual fire insurance corporation, claiming to act as such under chapter 690 of the laws of 1892 ; that the superintendent of the insurance department became satisfied, as a result of an examination made by him into the affairs of the defendant,' upon or prior to the 26th day of April, 1895, that the defendant had exceeded its powers, and failed io comply with the provisions of law binding upon it, and was conducting its business fraudulently and irregularly, and reported the facts disclosed by such examination to the attorney general; that the capital of the defendant had not been paid in, as required by the statute under which it claims to have been organized, and as provided by law; that it is insolvent and unable to pay its debts, and has violated various provisions of the law under which it was incorporated and of various other acts of the legislature of the state of New York binding upon it, and has become liable to a judgment dissolving it and forfeiting its corporate rights, privileges, and franchises ; and that its liabilities, as appears by the report of the superintendent of the insurance department, exceed its assets by at least the sum of $53,091.19.

The counsel for the plaintiff argues that this application is made under sections 1785 and 1786 of the Code of Civil Procedure, and not under section 1793, although leave to bring an action under that section was obtained upon the 29th day of April, 1895. Section 1785 is as follows :

“In either of the following cases an action to procure a judgment, dissolving a corporation created by or under the laws of the state and forfeiting its corporate rights, privileges and franchies, may be maintained as prescribed in the next section : (1) Where the corporation has remained insolvent for at least one year. (2) Where it has neglected or refused, for at least one year, to pay and discharge its notes or other evidences of debt. (3) Where it has suspended its ordinary and lawful business for at least one year. (1) If it has'banking powers, or power to make loans or pledges or deposits, or to make insurances, where it becomes insolvent or unable to pay its debts, or has violated any provision of the act by or under which it was incorporated, or of any other act binding upon it.”

To quote from the plaintiff’s brief, “the application for a receiver is made upon the broad ground that the corporation is insolvent; that it is entirely unable to pay its debts, and comes 'exactly within section 1785, subd. 4.” Such being the ground of the application, I do not think it ought to be granted.

Section 43 of chapter 690 of the Laws of 1892, entitled “Impaired Mutual Insurance Corporations,” provides that:

“ If it appears to the superintendent from an examination made by him or by an examiner appointed, by him that the assets or capital of any mutual insurance corporation are insufficient to justify its continuance in business, he shall determine the amount of such deficiency and issue a written requisition to the officers of the corporation requiring them to make it good within a time to be specified therein, not less than thirty nor more than ninety days from the service of such requisition. Such service may be made by mail, directed to the corporation at its place of business in 'this state specified in its charter. Upon the service of such requisition the directors of the corporation shall forthwith cause such deficiency to be made good, and proof to be filed with the superintendent within the time specified in the requisition that the same has been made good.' For any losses accruing upon new risks taken after the expiration of such time, and before such deficiency shall be made good, the directors of the corporation shall jointly and severally be personally liable therefor. If such deficiency shall not be made good within the time specified in the requisition, and satisfactory proof thereof filed with the superintendent, the corporation shall be deemed insolvent and may be proceeded against by the attorney-general as an insolvent corporation in the manner authorized by law.”

There is no allegation in the complaint, nor do I find any proof in the affidavits, that any such notice has ever been given to the officers of the defendant requiring them to make good the alleged deficiency. Section 43, just quoted, must be taken as limiting, in case of proceedings against mutual insurance companies, the more general and prior provisions of section 1785 of the Code of Civil Procedure relative to actions for the dissolution of corporations upon the ground of insolvency.

But if the question were so presented that its decision turned upon the solvency or insolvency of the defendant, there is no sufficient proof of its insolvency. No account was apparently taken by the department of insurance, in its computation to determine the solvency of the defendant, of the capital stock notes amounting to $160,000. Such notes are provided for in sections 111, 112 and 113, chap. 690, Laws of 1892, and must, in my judgment, be reckoned as assets in an estimate of the finanancial condition of the corporation. Section 113 declares that “All capital stock notes of any domestic mutual fire insurance corporation shall remain as security for all losses and claims until the accumulation of profits invested as required by law shall equal the amount of cash capital required to be possessed by stock five insurance corporations, the liability of each note decreasing proportionately as the profits are accumulated; ” and section 111 declares that such notes “shall be payable in part or in whole at any time when the directors shall deem the same requisite for the payment of losses and such incidental expenses as may be necessary for transacting the business of the corporation.”

But leaving the question of the present solvency of the defendant, and assuming that the basis of the action and this application is'the alleged violation by the defendant of some provision of the act" by or under which it was incorporated, or of any other act binding upon it (section 1785, subd. 4), I am not convinced that there has been any such violation. It is alleged in the complaint, and there is an attempt in the affidavits to show, that the $40,000 cash capital required by section 111, chap. 690, to be paid in as a prerequisite to the commencement of business, was not so paid in. The contention of the defendant, in answer, is that the money was placed to its credit in the Tradesmen’s National Bank, and that it was in no way liable for the same as a loan or otherwise, and that any subsequent acts of its agents, in attempting to treat the deposit as a loan from the bank, were unauthorized, and not binding upon it, and were repudiated by the directors as soon, as. they learned of such facts. In the face of Skinner’s affidavit that the drafts, the proceeds of which made up the $40,000 in question, “did not concern the defendant, being private matters between the bank and the makers,” and the affidavit of Nichols, who was the president of the corporation from March 31. 1894, to January 1, 1895, that, while he was president, the company borrowed no money from the Tradesmen’s National Bank, nor from any other bank or person, and that he knows that no such loan was ever authorized by the board of directors or by the executive committee, not to mention other evidence presented to the same effect, I am unable to find that the $40,000 in question was not paid in, and was not the absolute property of the defendant at the time it began business. Under such circumstances, I consider that I ought to proceed with great caution and to hesitate long before granting, this application, and thereby dealing what would probably be a fatal blow to the defendant. Not only does section 1800 of the Code of Civil Procedure safeguard corporate existence by providing for a trial by jury, of course and of right, of actions under section 1798, but the proper attitude of courts in such cases is indicated in the impressive language of Judge Finch in People v. North River Sugar Refining Co., 121 N. Y. 582, 608 ; 31 St. Rep. 781:

“ The judgment sought against the defendant is one of corporate death. The state which created asks us to destroy, and the penalty invoked represents the extreme rigor of the law. Its infliction must rest upon grave cause, and be warranted by material misconduct. The life of a corporation is, indeed, less than that of ’ the humblest citizen; and yet it envelopes great accumulation of property, moves and carries in large volume the business and enterprises of the people, and ought not to be destroyed without clear and abundant reason. That would be true even if the legislature should debate the destruction of the corporate right by a repeal of the corporate charter; but it is beyond dispute where the state summons the offender before its judicial tribunals, and submits its complaint to their judgment and review. * * * It appears to be settled that the state, as prosecutor, must show on the part of the corporation accused some sin against the law of its being which has produced, or tends to produce, injury to the public. The transgression must be not merely formal or incidental, but material and serious ; and such as to harm or menace the public welfare; for the state does not concern itself with the quarrels of private litigants.”

Whether there are in the present case such quarrels, as is charged, need not be considered. It is enough that the evidence does not show with sufficient clearness that any public injury is imminent. Irregularities on the .part of some of the defendant’s officers and agents there have been beyond a doubt, but the good faith of the directors appears unquestioned. As long ago as May 2, 1895, by a unanimous vote, they instructed their counsel “ to communicate with the superintendent of insurance, and inform him that it is the sense of the board of directors of the Equitable Mutual Fire Insurance Corporation that the company await the decision and report of the superintendent of insurance and abide thereby, and that it will make good any deficiency in the cash of the company that in his judgment should be made good, if any.” It was stated in the report of Hopkins, the expert who was engaged to make an examination of the affairs of the corporation, and whose report was in many ways most severe, and certainly was not open to the charge of partiality towards the management of the corporation, that an apparently valuable business had been built up. As the capital stock notes are available to meet any losses, and therefore public interests are not in imminent danger, and the corporation has expressed its desire to make good any deficiency in the cash, I do not think the court would be warranted in taking any action which would seriously impair, if not utterly ruin the business that has been built up.

This conclusion is not without authority. In People v. Manhattan Mutual Fire Ins. Co., 34 St. Rep. 570, which was a case of an application for a temporary receiver in an action under section 1785 of the Code of Civil Procedure, to dissolve a corporation upon the ground that it was insolvent, the general term of the third department said:

“ One or the other of two conclusions seems irresistable : If the notes were premium notes, then the company did not comply with the terms of the act of 1853 with respect to capital stock, and has ever since been doing business upon a capital unauthorized by that act, and far below its requirements ; or, if the notes were stock notes, then the company has violated the act in surrendering them to the makees before it had invested or accumulated from its surplus earnings the sum of §50,000. In either event the defendant should comply with the statute or stop business. This motion was treated and defended as if it were the order to show cause. We are unwilling under the circumstances, to suspend the corporate existence of the defendant, provided it is able and willing to make good its capital. We reverse the order below, but reserve the case for further and final order until the February term of the court. The defendant may, at the opening of such term, show that it has made good its capital”

The motion will be denied, but with leave to renew after notice on the part of the superintendent of insurance requiring the company to make good any impairment of capital he may certify it has sustained, if after thirty days from the giving of said notice the company fails so to do.


author: Lawrence, J.

text:
    Knapp, Pl’ff, v. Valentine, Def't.

      (Supreme Court, New York Circuit,

      Filed April 1, 1895.)

    1. Judgment — Action on — Leave of court.
    It is not necessary for an assignee of a judgment, before bringing an action thereon, to obtain an order of the court permitting him to do so.
    3. Trial — First instance.
    The objection that the plaintiff did not obtain leave to sue, before bringing an action upon a judgment, cannot be raised for the first time at the trial.
    Action on a judgment.

      Thornall & Pierce, for pl’ff ; I. Newton Williams, for def’t.
   Lawrence, J.

On the 9th day of June, 1876, a judgment was recovered in this court in favor of Edward EL Voorhees against Andrew J. Kerwin, Henry Valentine, and others, barring and foreclosing the defendants from all right, title, and interest in and to certain premises described in the complaint, and decreeing that said premises be sold, and directing the defendants Kerwin, Von Schoening, and Valentine to pay any deficiency in the amount found due to the plaintiff in said action. Henry Valentine, who was the defendant in that action, is the defendant herein. Upon the sale there was a deficiency amounting to $5,-290.84. The referee named in the said judgment thereafter filed his report of sale, which said report was, by an order of this court, confirmed on the 27th of July, 1876; and the clerk of the city and county of ISTew York was directed to enter a judgment for such deficiency in favor of said Voorhees against the defendants, which was acconiingly done. The said judgment was entered severally against each of the defendants, and no part thereof has been paid. Before the commencement of this action the said judgment was duly assigned to the plaintiff herein. All these facts are admitted, but it is claimed that, as the complaint does not aver that an application was made to the court for leave to bring the action, no cause of action is stated in the complaint. The defendant relies upon section 1913 of the Code of Civil Procedure in support of this position. It was frequently held, under section 71 of the old Code of Procedure, from which section 1913 of the present Code is taken, that the prohibition of section 71 was limited to the orginal parties, and that, where a title to the judgment had been assigned or transferred, it was not necessary for the assignee or transferee, before bringing his action, to obtain an order of the court permitting him to do so. See Smith v. Britton, 45 How. Prac. p. 428, per Van Brunt, J.; Wheeler v. Dakin, 12 How. Prac. p. 537. That the rule has not been altered by section 1913 of the Code of Civil Procedure has been decided in several cases. See Hedges v. Conger, 10 St. Rep. 42, opinion by Daniels, J.; Carpenters. Butler, 29 Hun, p. 251, opinions by Dykman and Cullen, JJ. See, also, Freeman s. Dutcher, 15 Abb. N. C. 431, and cases cited by Boches, J., at page 433. Furthermore, as the defendant omitted to plead the failure of the plaintiff to obtain leave to sue upon the judgment, the objection cannot be raised for •the first time at the trial. See Bank v. Carrington,. 14 Wkly. Dig. p. 475. This case was affirmed by the court of appeals. 89 R. Y. p. 632. The case of Farish v. Austin, 25 Hun, 430, was decided by the same general term, in this department, as decided Bank s. Carrington; and, if in conflict with the decision in that case, the latter must control, inasmuch as it is not only later in point of time, but has also been affirmed by the court of appeals. I am of the opinion, therefore, that the plaintiff is entitled to judgment for the sum of §5,290.84, with interest from the 21st of July, 1876, together with costs, and an allowance of $150.


author: Beekman, J.

text:
    N. K. Fairbank Company, Pl’ff, v. Blaut et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1895.)

    1. Pleadings — Answer—Denial.
    A denial upon knowledge or information sufficient to form a belief as to allegations of the answer, contained in certain mentioned paragraphs, sufficiently complies with the provisions of section 500 of the Code,
    A Same.
    A denial upon information and belief in part, and in part on knowledge, as to allegations in certain paragraphs of the complaint, is insufficient.
    Motion to make answers of some of the defendants more definite and certain.

      Sullivan & Cromwell, for the motion; Jacob Fromme, opposed.
   Beekman, J.

This is a motion'to make the several answers of six of the defendants more definite and certain. The complaint contains allegations stated in separate paragraphs, each paragraph being identified by a Roman numeral in consecutive order, beginning with “I," anil ending “IX.” The defendants answer separately. The denials contains in the answer are in the following form:

“I. Said defendant denies that she has any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 2d, 3d, 4th, and 5th of said amended complaint.”

This may be taken as a fair specimen of the form of denial,to which the plaintiff objects. Some of the answers also contain the following form of denial:

“Said defendant denies upon information and belief in part, and In part of her own knowledge, the allegations contained in the 6th, 7th, 8th, and 9th paragraphs of said amended complaint.”

The .counsel for the plaintiff claims that this form of pleading is-not in conformity with section 500 of the Code of Civil Procedure, and insists that the defendants should have repeated in the body of their answers the allegation of the complaint upon which the denial is intended to operate. As an authority for the motion, I am referred to Baylis v. Stimson, 110 N. Y. 621; 16 St. Rep. 175. In that case the denial was in the following form:

“The defendant further denies that he has any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the following portions of the complaint, viz, the whole of the paragraph beginning with the words, ‘And the plaintiff,’ in folio 11; the last five lines of the paragraphs ending in folio 15; the last three lines of folio 19, and the first six lines of folio 20; the whole of the paragraph beginning in folio 23 with the words, ‘And the plaintiff’; the following sentence in folio 26, ‘And that he thereby became liable for the costs and expenses ,of such defense to the sum of $250 ;’ the last eight lines of folio 31, and folios 32 and 33.”

The question was not before the court for decision, and the statements contained in the opinion upon the subject are entirely obiter. The court says, referring to the answer above quoted (page 623, 110 N. Y.):

“It is thus inartificial and troublesome, and not in accordance with any rule of pleading at common law or under the Code. It is, however careless, no doubt easy for the pleader, but the labor of dissection and discovery as to its meaning is thrown upon the opposite counsel and the court. It belongs to neither. The answer shoud disclose the defense, whether it be by denial or new matter, without reference to any other pleading; it should be complete in itself, and require neither amplification nor patching from fragments of the complaint. The Code means nothing less when it enacts (section 500) that the answer must contain ‘a denial of each material allegation of the complaint controverted by the defendant,’ and what allegations are thus controverted should appear on the face of the answer. The plaintiff’s attorney should not be required to look beyond that pleading for such information, nor should the court be required to court lines and measure paragraphs to discover the matters put in issue. We think, however, the an- - swer has been properly construed and applied; at least the finding-of the referee is clear and decisive. ”

I do not think that these remarks should be extended to apply to a pleading other than one quite similar to that which was before the court. The embarrassment in that case which provoked this criticism of the court of appeals grew out of the fact that this reference was to folios of the complaint which were quite different from the folios of the same pleading as it appeared upon the record on appeal. In the present case, however, the references in the answer to the allegations of the complaint are by paragraph numbers, which form a part of the complaint itself, and that fact will always appear, in whatever shape the pleading may be presented to the court. In the present case there can be absolutely no doubt as to what allegations are denied ; a simple inspection of. the complaint itself will exhibit the fact. The claim that the plaintiff’s attorney should not be required to look beyond the answer for information as to the allegations which are controverted goes altogether too far, if it is intended to apply to forms of denial similar to those under consideration. If such a construction is to be adopted, then an answer which in terms denies each and every allegation contained in the complaint would be also open to criticism, because a reference to the complaint would be necessary in order to determine what those allegations were. The common practice of the profession best determines the question of the convenience of attorneys, which is referred to in the case above mentioned as one of the reasons for discouraging this form of pleading. ■ It undoubtedly is the practice, where the defense is in part a denial, to deny by reference to the particular paragraph. The advantage of it is obvious. It avoids the repetition of voluminous statements which would largely increase the. size of the pleading, and thus subject attorneys and court to a useless expenditure of time in again traveling over the allegations of the complaint in the answer. It would also increase the bulk of the record, and materially add to the. cost of printing where appeals are taken. Furthermore, if the paragraph intended to be denied is to be set forth in the answer, it would involve a discussion as to whether the the denial contained a negative pregnant, unles's the pleader carefully denied each fact which the allegation contains, or which might be inferred from it. The effect of the application of such a rule in a complicated equity case, where the allegations are voluminous, would be simply intolerable to attorneys and judges. The answer is a pleading which raises an issue. What that issue is must always be determined by reading the complaint and the answer together; and I fail to see, under such a form of pleading as has been adopted by the defendants in this case, how there can be the slightest difficulty or inconvenience in determining what the issue is. In fact, it may safely be claimed that the issue can be more quickly determined than if the defendant had undertaken to weave the allegations of the complaint into his forms of denial in his answer. I have examined the records of some of the cases which were before the court of appeals at the time the case of Baylis v. Stimson was considered, and find-that in the majority of them allegations of the complaint were denied in precisely the form found in the case before me, by a reference to the paragraph numbers of the complaint. I do not think the court intended to include such forms of denial within its strictures. The criticism which it passed upon the pleading in that case was well deserved, but entirely inapplicable to the case before me. I am satisfied that the forms of denial which have been adopted in this case are quite in accordance with the requirements of section 500 of the Code of Civil Procedure, and are free from just criticism. I except, however, from what I have said, those allegations contained in the answers before me which are in the following form :

“ Said defendant denies upon information and belief in part, and in part of her own knowledge, the allegations contained in the 6th, 7th, 8th, and 9th paragraphs of the said amended

The plaintiff is entitled to know what allegations are denied absolutely, and which are denied only upon information and belief. As the denial stands, it is utterly impossible to determine this question, and, furthermore, it renders completely valueless the verification itself. I have no doubt of the viciousness of such a form of denial. It follows from what I have stated that the motion should be denied, except in so far as the allegations last mentioned are concerned. The answers containing such allegations must be made more definite and certain, by separately setting forth the allegations which are denied upon information and belief and those which are otherwise denied. Costs are not awarded on any of those motions. Notice of settlement of the orders should be given.


text:
    Steel et al., Pl’ffs, v. Rosenburg et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April 9, 1895.)

    Indemnitors — Liability.
    The sureties on a sheriff's bond for the return of property seized under an execution and replevied by the execution debtor’s vendor upon the ground that he was induced to sell the property by the fraudulent representations of the execution debtor, are not liable for the conversion of the goods by the sheriff, where there had been no recission of the sale by the vendor before the levy of the execution.
    Motion for leave to amend the complaint by changing the cause of action to conversion.

      Stern & Rushmore, for the motion; Blumenstiel & Hirsch, opposed.
   Beekman, J.

This is a motion for leave to serve an amended complaint, changing the cause of action from replevin to trover. The facts upon which the motion is based may be briefly stated as follows : Abraham Levy and Jacob Levy obtained certain goods from the plaintiffs by means of false and fraudulent representations. These goods were levied upon by the sheriff under an execution which was issued under a judgment obtained against the Levys by a creditor. Thereupon the plaintiffs instituted proceedings by replevin to recover possession of the goods in question, supposing that they had a right to maintain such an action. Under their direction the goods were taken possession of by one of the coroners, whereupon the sheriff demanded the return of the property, delivering the affidavit and undertaking required, by section 1704 of the Code of Civil Procedure. The property thereupon returned to the sheriff. The defendants in this case are the sureties upon the undertaking, and on their own motion have been duly substituted as defendants in this action in place of the sheriff. Subsequent to the bringing of this suit, the court of appeals in the case of Wise v. Grant, 140 N. Y. 293; 56 St. Rep. 496, decided that such an •action could not be maintained where goods were obtained by fraudulent representations, unless the plaintiff had actually rescinded the sale before the property had been levied upon by the sheriff. As no such rescission is claimed by the plaintiffs to have taken' place prior to the seizure by the sheriff of the goods in question, it is conceded that the action, in its present form, cannot be maintained. The plaintiffs claim, however, that they are entitled to hold the defendants, who are the sureties on the undertaking, for a conversion of the property, on the theory that they are liable for the wrongful act of the sheriff, and that whatever damages could have been recovered in action against him for conversion are recoverable against them. In support of this theory, the learned counsel for the plaintiffs appeals to the case of Dyett v. Hyman, 129 N. Y. 351; 41 St. Rep. 644, as an authority. That case however, was one in which an action was brought by the assignee for the benefit of his creditors of one Jacob Knapp to recover the value of a stock of merchandise taken from the assignee by the sheriff under the attachments issued in suits brought against the assignor by certain of his creditors. The theory of the action was. that the assignment was fraudulent and void. When the goods were seized by the sheriff under those attachments, the attaching creditors indemnified him, and. the indemnitors were substituted in the action as defendants in place of the sheriff, under sections 1421-1423 of the Code of Civil Procedure. It was claimed in that case by the defendants that they were liable as indemnitors only, and were governed by the provisions of their bond; but this position was held to be untenable, the court stating (page 357,129 K. Y), that “ the liability of the defendants rests wholly upon their participation in the original wrong and their liability for its consequences incurred by reason of their complicity in the trespass. This, it is true, is evidenced by the bond of indemnity, which authorized the sheriff to consummate the original wrong by an unlawful sale and conversion of the plaintiff’s property, but in no sense is the action upon the bond.” That case, however, is not analogous to the present one. There the indemnitors deliberately assumed a responsibility for the lawful act of the sheriff in converting plaintiff’s goods, and were participants in the wrong done, causing it in the sense that, but for the bond which they gave, the sheriff would have refused to take the property. There was no question in the case as to the form of the action, or as the right of the plaintiffs to recover if the facts which they alleged were supported by proof. In the present case, however, it is now conceded that the plaintiffs, at the time that the property was replevined, had no right to recover possession of it in such an action. The defendants were guilty of no other act than that of furnishing an undertaking by which they bound themselves to the plaintiffs,“for the delivery of the said chattels so replevined to the plaintiffs, if delivery thereof is adjudged, or if the action abates in consequence of the defendant’s death, and for the payment to them of any sum. which the judgment awards against the defendant in this action.” How, then, can they be said to have participated in an act of conversion, now alleged against the sheriff, when their only act was to secure to the sheriff the restoration of property which it now appears the plaintiffs had forcibly taken from him without warrant of law ? They were not parties to the original trespass committed by the sheriff; their "intervention in the matter was subsequent to the first seizure. Nor can they be said to have participated in any subsequent act of the sheriff in dealing with the property. They simply stood in the position of guarantying the plaintiffs that, if they succeeded in obtain ting a judgment for the return of the property and for damages, they, as sureties of the sheriff, would stand responsible for the delivery of the property, and for the payment to them of any sum which the judgment awarded against him; that is for such damages as by law might be recoverable in such a form of action. They in no sense undertook to stand behind the sheriff as indemnitors against the consequences of his unlawful acts. Their connection with the matter began and ended with a single act, by which they made it impossible for the sheriff to resume possession of property which it is now conceded the plaintiffs had no right to take from his possession in the manner which it was ■done. It would be a monstrous act of injustice to attempt to hold these defendants for the wrongful act of the sheriff in converting the property in which they were in no proper sense participants. The action is brought against them, not upon their bond, but upon the theory that, in giving the bond for the purpose of restoring to the sheriff that which had been taken from him by unlawful means, they had rendered themselves liable for some other act, in no way associated with the only question in which they were interested or with which they were connected, namely, the right of the plaintiffs to take the property in question in the particular way in which it was attempted. Surely, the plaintiffs cannot be entitled to recover damages against these defendants, whose only act consisted in preventing the plaintiffs from retaining possession of property which under disputed law, they had no right to take in the manner attempted. I am satisfied, upon the consideration which I have been able to give to the question, that the-plaintiffs cannot recover against the defendants for the conversion of which the sheriff has been guilty, and that the motion for leave to serve an amended complaint, changing the action to one for conversion, should not be granted.

The motion is therefore denied, with costs.


author: Daly, Ch. J.

text:
    Ellen Meager, as Assignee, etc., Resp’t, v. John W. Campbell et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Attachment — Proceeds oe sale.
    The proceeds of a sale are not subject to an attachment against the vendor while they remain in hands of the auctioneer who made the sale.
    Appeal from a judgment of the city court, affirming, a judgment entered on a verdict for plaintiff.

      George W. McAdam, for app'lts; Jeroloman & Arrowsmith, for resp’t.
   Daly, Ch. J.

This case was properly disposed of by the city court in directing a verdict for the plaintiff and affirming the judgment thereon. The action was brought to recover a balance of money due from an auctioneer to the plaintiff’s assignor for the proceeds of the sale of the latter’s household property. The defense is that the money was attached by a marshal under process against the assignor prior to the assignment, but no valid levy was proved, for the reason that the money attached was not the property of the assignor, not having been paid over to her, nor placed under her control, before or at the time of the levy. The evidence on the part of the defendant is that at the time the attachment paper was served upon him he had the money (proceeds of the sale of the assignor’s chattels) in his possession, and showed it to the marshal who attached ; the marshal swearing that the defendant pulled out a roll of bills, but how much there was he did not know. The defendant states that he got the portion of the proceeds which he paid to the assignor ($186) out of his safe, and left the other $145 there, but this was after the levy. When the attachment was levied, the defendant gave a certificate to the marshal, and held the money for him, replacing it in his safe. The whole evidence shows that before any part of the proceeds of sale were paid over to the plaintiff’s assignor, or placed under her control, the defendant set apart $145, and the marshal attached it, and left it with the defendant as receiptor. As the money was not in the possession nor under the control of the debtor in the attachment, it was not the subject of a levy. Crock. Sher. 451. The fact that the auctioneer counted it out, and set it apart as part of the proceeds of the sale, and as money of said debtor, did not subject it to levy. A levy upon money collected by and in hands of an officer on execution is not a levy upon the goods and chattels of the persons for whom it was collected; because the identical pieces of money collected are not necessarily to be paid over to him. The money is not strictly his till actually paid over. Until that be done, his right is a chose in action. Muscott v. Woolworth, 14 How. Pr. 477. A sheriff having money in coin in his hands, collected upon, an execution in favor of a plaintiff, cannot levy upon it to satisfy an execution in his hands against such plaintiff. Baker v. Kenworthy, 41 N. Y. 216. Where a surrogate by decree directed one co-executor to pay a certain sum to another, and the money was put on the table of the surrogate, and a constable levied upon it under attachment, the levy was held bad, as the money did not vest specifically in the debtor until paid over to him or his authorized agent. Dubois v. Dubois, 6 Cow. 494. Where a banker voluntarily and without authority from a depositor counted out money in bank bills and specie, and handed it to the sheriff, who had an execution against the depositor, under which he levied upon the money, and it was afterwards put in a wrapper, with an indorsement of a memorandum of the levy upon it, and put in the vault until the sheriff called and took it away, it was held neither a levy nor a payment. It was not a levy because the money thus separated by the banker from the contents of the vault was his property, and not that of the defendant in the execution, and was not liable to levy under process against the latter. Carroll v. Cone, 40 Barb. 220. Gold and silver coin collected by an attorney at law on a claim due his client cannot be attached in the ordinary way in his hands as the property of his client. His duty to account and pay over is a chose in action, which was not attached by taking the coin in which the debtor had paid the attorney. No property in that specific coin vested in the principal by that payment, unless it was put into his possession by being paid to him ; and until it was it did not become his property. The attorney could maintain an action for conversion against the sheriff for the money attached and taken by him. Maxwell v. McGee, 12 Cush. 137.

In the present case it is clear from the authorities cited that the money upon which the marshal levied was the money of the auctioneer, and not of the owner of the goods from the sale of which such money had been realized. Had it been attached against his will, the auctioneer could have maintained conversion for it against the officer. Until defendant had paid it over to the plaintiff's assignor, or placed it under her control and disposition, it remained his property, and was not subject to' levy on attachment against her. If the marshal had the right to attach a chose in action,— i. e. the debt of the auctioneer to his customer, — such attachment was not effected by levying upon the cash proceeds of the sale. The judgment and order must be affirmed.

All concur.


author: Geigerich, J.

text:
    Mason, Pl’ff, v. Dutcher, Def’t.

      (New York Common Pleas, Special Term,

      Filed April 9, 1895.)

    1. Pleadings — Striking out.
    Where there is a semblance of a cause of action or defense set up in a pleading, its sufficiency cannot be determined on a motion to strike it out hs redundant or irrelevant.
    2. Same — Partial defense.
    Unless a partial defense is pleaded as such, it will be assumed on demurrer that the facts in relation thereto are pleaded as a completó defense.
    3. Same — Answer—Denial.
    A denial of “the allegations of the complaint and each and every one of them, except as hereinbefore controverted or admitted,” is sufficient.
    Motion to strike out certain defenses contained in the answer, and to compel the defendant to make the answer more definite and certain.

      J. Noble Hayes, for pl’ff; Frank Loomis, for def’t.
   Geigerich, J.

It is well settled that, where there is a semblance of a cause of action or defense set up in a pleading, its sufficiency cannot be determined on a motion to strike it out as, redundant or irrelevant. Walter v. Fowler, 85 N. Y. 621; Brabner v. Faulkner, 93 id. 515, 518. The matters sought to be expunged from the answer as irrelevant and redundant, considered together, constitute, in my opinion, more than a semblance of a defense to the cause of action alleged in the amended complaint, and hence the motion to strike out the same should be denied. I think, however, that the words referred to in that part of the notice or motion designated “C. 7th” are scandalous, see People v. Murray, 22 Supp. 1051, and therefore should be stricken out, The plaintiff also moves to require the defendant “to make his answer more definite and certain by stating unequivocally and explicitly whether or not he intends the words or matters referred to in subdivisions numbered TI. to IX., both inclusive, and subdivision XI.,’ to constitute a defense to such action, or any part thereof, and interpose the same as such.” The object in doing so is stated in plaintiff’s brief to be “to compel the defendant (under section 546 of the Code) to state definitely whether he intends the separately numbered paragraphs of the answer denominated further defenses as separate and distinct defenses so that the plaintiff may have an opportunity of demurring to them.” Answers are separated by the Code into two classes . Those which consist of denials, and therefore serve the sole purpose of raising a direct issue upon the plaintiff’s allegations; and those termed “new matter,” — -that is, facts different from those averred by the plaintiff, and not embraced within the judicial inquiry into their truth. Pom. Rem. pp. 675, 676, § 593. The Code prescribes that “each defense or counterclaim must be seperately stated and numbered.” Code Civ. Proc. § 507. “This,” said Sanford, J., in Bridge v. Payson, 5 Sandf. 216, in passing upon a similar provision contained in the old Code, “means nothing more than there shall be a plain and concise statement of any new matter constituting a defense. Each statement intended as a defense must be complete in itself, but the Code does not require any formal commencement in conclusion of such statements. On the contrary, the whole spirit of the Code is hostile to both.” The Code further prescribes :

“A partial defense may be set forth as described in the last section ; but it must be expressly stated to be a partial defense to the entire complaint or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is whether it is sufficient for that purpose.” Code Civ. Proc. § 508.

It is well settled that a partial defense must be nleaded as such, and, unless so pleaded, it will be assumed on demurrer that the facts in relation thereto are pleaded as a complete defense. Thompson v. Halbert, 109 N. Y. 329 ; 15 St. Rep. 513; Pom. Rem. 3d ed. § 608, page 690. The case of Burke v. Railroad Co., 39 St. Rep. 241, cited by plaintiff’s counsel, has no application to the case at bar. The former was brought against a railroad company' to recover a penalty for charging more than the legal fare. A portion of the answer was :

“Defendant, reserving the objection that this action cannot be maintained by reason of the fact that the summons herein was not served upon the defendant by an officer authorized by law to collect an execution issued out of said superior court, answers the complaint," etc.

Upon a motion to strike out this portion of the answer, or, in the alternative, to amend it by stating unequivocally whether or not it was intended as a defense, and, if so, to separately state and number it, the court in granting the motion said:

“If it is intended to be issuable matter, and relied upon as a defense, it should be pleaded as such, and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer.”

In the present case the portions of the answer complained of clearly indicate that the matters set up are intended as a complete defense, and, there being no statement to the contrary, it must be assumed that the answer refers to the entire complaint, which sets forth but a single cause of action. Code Civ. Proc. § 507. For these reasons the defendant should not, in the respects referred to, be required to make the answer more definite and certain. I have given due consideration to tae Questions presented by that part of the notice of motion designated as T. 18th, 19th, and 20,” and am of the opinion that the denial contained at folio 64 of the answer is clear and explicit, and leaves no room for doubt as to what was intended to be denied. Except an ádmission that ¿he defendant signed the agreement set forth in the answer, he denies the making of any contract with the plaintiff as alleged in the complaint. The denial contained at folio 71 is also clear and definite, and the same, as well as the denial last referred fio, is sanctioned by the authorities. Mingst v. Bleck, 38 Hun, 358; Griffin. v. Railroad Co., 101 N. Y. 348. Consequently the motion to make these portions of the answer more definite and certain or to strike them out should be denied. The last paragraph of the answer “denied the allegations of the complaint, and each and every one of them, except as hereinbefore controverted or admitted;” and plaintiff moves to. make the same more definite and certain, “by pointing out or indicating clearly and explicitly what allegations of the complaint are intended to be reached thereby,”or to strike out the said words. The form of the denial is sanctioned by the decision in Griffin v. Railroad Co., supra, in which the denial was almost identically the same as in this case. There is no difficulty in ascertaining what is admitted and controverted before the last paragraph of the answer is reached. This is clearly specified by the other paragraphs of the answer. Consequently there is no doubt or confusion as to the application of this general denial, and therefore the motions referred to should be denied. It follows, therefore, that, with the exception of striking out certain words as scandalous, which are set forth in that part of the notice of motion designated “C. 7th,” the other motions should be denied; but, as both parties have been successful in part, neither of them should have any costs as against the other.


author: Bischoff, J.

text:
    Knorr, Pl’ff, v. Bates et al., Def’ts. Same, Pl’ff, v. Atkins et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed April 17, 1895.)

      1. Contract — Public policy
    A provision in a policy of insurance that the insured shall not bring any action, except against the attorneys in fact representing all the insurers, is void as against public policy.
    3. Same.
    Such invalid provision does not destroy the underwriter's contractual obligation to pay in the event of loss.

      Demurrer to the complaint.

      Carter, Hughes & Kellogg, for pl’ff; Lexow & Wells, for def’ts.
   Bischoff, J.

These actions are brought upon policeis of fire insurance annexed to and made part of-the complaints to which the demurrers are interposed. In each action the defendant who alone appears and demurs is one of the members of certain respective firms acting as attorneys in fact for the underwriters by whom the insurance was assumed. Mo claim is made, nor well can be, that the allegations of the pleadings are insufficient to constitute a cause of action were the policies in suit not embodied by intrinsic reference, the ground of the demurrers being that a defense is disclosed, available to these demurrers, by the terms of the policies as set forth. The clauses upon which this contention is founded are substantially the same in each policy sued upon, and these issues may be determined practically as of one action. The provision in the policy subscribed -by Bates et al. as underwriters, upon which the decision of both demurrers may proceed, is as follows:

“ Mo action shall be brought by the insured to enforce the provisions of this policy except against the attorneys in fact, as representing all of the underwriters; and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder. * * * Judgment entered in such an action shall be satisfied out of the premiums in the hands of the underwriters unexpended; if such premiums shall be insufficient, then out of the deposit made by the several underwriters; if both be insufficient, then out of the individual liability of the several underwriters, as hereinbefore expressed and limited; but in no case shall the judgment bind the property of the said attorneys to a greater extent than the several liabilities of each of them as individual underwriters.”

The demurrant in each action is one of the underwriters of the respective policies in suit, as well as a member of the firm constituting the “attorneys in fact;” and the basis of the argument made is that the pleadings disclose a failure of compliance with the requirement as to actions upon the. policy noted above, the demurrant being sued as an individual, and the action not proceeding against the “attorneys in fact.” Unless the clauses in question operate to oust the court of jurisdiction, there can be no question as to the propriety of joining all the underwriters, including the demurrants, as defendants, which was done in these actions; the complaint alleging their several liability (Code Civ. Proc. § 454), the joinder not affecting the individual rights of the parties (Id. § 455), and it being expressly provided by the contract that there should be a liability of each underwriter in proportion to the amount of risk assumed by him. It was the common-law practice in actions upon insurance policies of this character for the court to make a “consolidation rule,” upon consent of the parties, whereby all the actions which would lie against the underwriters severally should abide the result of one. Phil. Ins. 1989, and cases cited. This, result was apparently what these parties in some degree attempted to provide for by agreement in advance, and there would seem to be no reason why such an agreement should not be upheld, the consent of the parties being the principal element of consideration. Doyle v. Anderson, 1 Adol. & E. 635. How far the present agreement would be valid in view of the provision that judgment in the action against the attorneys in fact, as underwriters, in their individual capacity, could be enforced only to the extent of their separate liability, need not be determined,, for as to these demurrants, at least, the condition has been fulfilled. Upon the point raised, that the plaintiff should have instituted her action against the “ attorneys in fact,” as acting in some representative capacity, there can be no doubt as to the futility of the demurrant’s contention.

The mere making of a contract through an attorney in fact is-only an incident to the contract itself. It need not be said that the contract is just as much the engagement of the underwriters, as if made directly by them. What would be the effect if the contract had been made directly with the underwriters, and it had contained a provision to the effect that, if there was a breach1 of the contract, plaintiff would not sue them, but would sue A.? Clearly, such a provision in the contract would be void. A step further: Suppose it should provide that, if there were a breach of the contract, certain ones of the underwriters should not be sued and held liable; that would also be void, because the liability of each is a several liability. A single underwriter makes a contract through an attorney in fact, and puts a provision therein to the effect that the insured will sue only the attorney in fact, and not the real party in interest. Would this not be void? Or, A. and B. make a contract under which it is provided that, if' there' is a breach on the part of A., B. will not sue A., but will sue C., who is a party to the contract only as representing A. as-his agent. This would be only an attempt to escape the liability on the part.of A., and should unhesitatingly be pronounced void by the court. It would waive a substantial right to be asserted by a litigant. Greenh. Pub. Pol. 333. Except in an action against the underwriters themselves, the courts would be without-jurisdiction of the persons to render judgment against them. The provision, therefore, that the underwriters’ liability in the event of loss should be ascertained and enforced onty in an action against their attorneys in fact, as such, no such action being legally authorized or maintainable, was, in effect, an attempt to preclude the insured from every means of enforcement of the liability. As such, it aimed to deprive the insured of her civil right to apply to the courts for redress. In that aspect the provision contravened public policy, and so was illegal and imperative. Ray, Oont. Lim. p. 116, § 21. It was thus held with regard to a contract pursusuant to the terms of which a submission to arbitration was to be the only means of redressing a breach. Hurst v. Litchfield, 39 N. Y. 377. See, also, 1 Am. & Eng. Enc. Law, p. 664, and cases collated in note 1.

"The invalidity of the provision to preclude suit against the underwriters did not destroy the latter’s contractual obligation to pay in the event of a loss. A distinction is here to be observed between the insured’s right to payment of the sum insured and the remedy for the enforcement of such right. The promise of the underwriters to pay was wholly independent of the insured’s promise to enforce such payment only in an action against the attorney in fact, as such, of the underwriters. The insured’s promise was intended to affect her remedy only if the underwriters failed to pay as promised by them. The facts in the case at bar, therefore, do not present a case of mutually dependent or interdependent provisions of the same contract, where the validity of one provision necessarily involves the annihilation of others. It does not here follow that the underwriters’ obligation is extended, or their liability increased beyond the terms of the contract of insurance, because the restriction of the remedy for the enforcement of the obligation or liability is removed or adjudged inoperative. Nor can it be said that these “ attorneys in fact” were proper parties against whom the action could be brought by reason of their being viewed as “ trustees of an express trust,” or parties “ with whom a contract is made for the benefit of another.” Code Civ. Proc. § 449. The contracts were made with the underwriters themselves. A mere inspection determines the question beyond a doubt, and nothing in the pleadings gives support to an assumption that there was any relation of a fiduciary nature between these attorneys and the underwriters. Nowhere does it appear that the funds applicable to this insurance are in the hands of any one other than the underwriters themselves. Furthermore, section 449 of the Code of Civil Procedure operates only as to parties plaintiff, not as to parties defendant. It follows that the demurrers should be severally overruled, with costs. Leave to answer upon payment of costs within twenty days.


text:
    Abraham Newkirk, Resp’t, v. Walter H. Hooker, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Appeal — Appealable order.
    An order, denying a motion to compel the acceptance of a notice of appeal after the time to appeal has expired, is not appealable.
    Appeal from an order of the city court, affirming an order denying a motion to compel the plaintiff to accept notice of appeal from a certain order therefore made in the cause.

      Willis B. Dowd, for app’lt; Abraham King, and Charles K O' Conner, for resp’t.
   Bischoff, J.

Consistently with the rules governing appeals from the city court to this court, no review of this order is to be had here. It does not affect a substantial right. Code Civ. Proc. § 3191, subd. 3. An appeal from an order directing a party to accept notice of appeal may be heard by the ultimate court of review, and the order reversed, should it appear that the direction below was, in effect, an extention of the time to appeal, for this affects a substantial right, Clapp v. Hawley, 97 N. Y. 610 ; but the appeal is to be dismissed if the order accomplished merely the result of requiring the adverse party to accept the notice before the time to appeal had expired, and this because no right is infringed by the direction, and, in fact, no order is required, Thurber v. Chambers, 60 N. Y. 30. So, necessarily, of an order denying the motion, for where the time to appeal has not expired a direction that the notice be accepted would be idle; the service itself accomplishes the required result, and, on the other hand, should the applicant have let the statutory period elapse, the motion must of necessity meet with a denial, Code Civ. Proc. § 784; Crook v. Crook, 12 St. Rep. 663, except in a case falling within section 785, which this case is not Appeal dismissed, with costs.

All concur.


author: Daly, C. J.

text:
    Socialistic Co-operative Publishing Association, Resp’t, v. Morritz Hoffmann et al., App’lts.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    1. Principal and surety — Liability.
    A surety on an employe's bond ior the faithful discharge of his duties is not exempted from liability for money collected by such employe in the course of his duty and appropriated to his own use from the fact that it was charged to him on his employer’s books and part of it paid by him.
    2. Same — Release.
    The retaining of the employe after the discovery of his misconduct does not relieve the surety for breaches committed prior to such discovery, where the employer did no act which injured the surety or made him liable for more than he would otherwise have been.
    3. Same — Change of relation.
    The change of the employe’s compension from commissions to salary, without any change in his duties, does not affect the surety’s liability.
    4. Same — Burden.
    In an action against such surety on his bond, the burden of establishing the defense that the employer ratified the breach of duty, is on the surety.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    The action is upon a bond executed by the defendant Hoffmann, as principal, and by the defendant Sutro, as surety, to the plaintiiff, dated April 10, 1885, and conditioned that Hoffmann shall honestly and in good faith discharge his duties as manager or clerk while in the employ of the plaintiff, and shall faithfully account for all moneys and property of the plaintiff that may come into his possession in the line of his said employment. The claim is that Hoffmann had failed to account for and pay over to the plaintiff $422.30, which he received for the plaintiff in the course of his employment. But defendants answer, Hoffmann denying the allegations of the complaint that he failed to discharge his duties as manager and clerk, and that he failed to account for and pay over moneys and counterclaims $897 for work done outside of his agreed services, and for the sale of a list of advertisers which he procured for plaintiff; and the defendant Sutro, making the same denials, sets up that the plaintiff’s claim in this action was for an indebtedness of Hoffmann to the company, and not for breach of his duty, the faithful performance of which was secured by the bond.

      Theodore Sutro, for app’lt; Simon Sultan, for resp’t.
   Daly, C. J.

At the time of the execution of the bond in suit, Hoffmann was employed as manager and clerk of plaintiff, which was engaged in publishing a newspaper. Outside of his position and duties, he was allowed to solicit advertisements for the paper, and to draw a commission of twenty-five cent, thereon. Goods were accepted from the advertisers by the company in part payments for advertisements. Hoffmann got goods from the advertisers for himself, and they were charged to him on the books of the company, by the direction given to the cashier. In September, 1890, the books showed an indebtedness from him’to the company for overdrafts on the commission account, and thereupon the company arranged witli him to discontinue commissions and to increase his salary. His overdrafts were to be repaid by a weekly deduction of five dollars from his salary. He was still allowed and expected to procure advertisements for the paper. If any part of the demand in this action were for the indebtedness above specified, it could not be recovered against the surety, because it was contracted outside of the principal’s duties as manager and clerk, and was, besides, merely a debt; he having been permitted to order goods and to charge himself with them on the books. After September, 1890, however, this arrangement was changed. Hoffmann, in ordering goods from advertisers,' was collecting for the company as manager or clerk, and the failure to account and deliver the property so ordered and received by him would constitute a breach of duty for which the surety would be liable. It appears that he continued after September, 1890, to order goods from advertisers, and to retain them for his own use. He reported the amount from time to time to the cashier, who charged him therewith on the books. The goods so received were the property of the company ; and, although Hoffmann reported the amounts to the cashier, there is no proof that the latter, in making charges thereof upon the books, had" any authority from the company to change the character of the defendant’s,act from a breach of duty into a contract of indebtedness. The cashier acted under Hoffmann’s instructions, and not under the directions of the company, in this matter. The surety would therefore be liable for the value of any goods so received by Hoffmann, unless it could be shown that the company in any way approved of such charges. In April, 1892, the treasurer of the company found Hoffmann charged upon the books with a balance of $515.63 for such collections. That amount was admitted by Hoffmann to be correct, and he after-wards paid on account of it $400. Credits for certain discounts were allowed him, amounting to $21.02, which left a balance of $94.61. Subsequent charges on the books for goods similarly ordered brought the total charges against him on that account to $442.30, for which this action is brought against the surety.

The sum of $515.63, found due in April, 1892, was recoverable from the surety as collections not accounted for by due payment. It was not sufficient that the principal should report the amounts he had collected. It was a breach of the condition of the bond if he did not pay, and therefore that amount was due for goods received and not accounted for. The subsequent receipt by the company from him of $400 in cash did not convert the claim into a Simple debt. Nor did the charge upon the books have that effect; the company being entitled to make entries on its books of the amounts reported by Hoffman. To convert his breach of duty into a mere indebtedness required some act of the company. But there is no proof of any such act. The statement of account between the parties did not have that effect; it was a mere admission of the amount. The question was submitted to the jury whether the. company treated this account as a debt, and whether they extended the time of payment; and the jury found upon both issues in favor of the company. A mere failure to enforce the liability did not discharge the surety, no agreement for time having been made with the principal.

Nor was the surety discharged by the plaintiff continuing Hoffmann in its service after the discovery of his breach of duty in April, 1892. He left in September following, but the burden of the surety was not increased during that period so far as the evidence in the case shows. The additional charges amounting to $442.30 were entered upon the books just previous to his leaving his employment, and they were for goods ordered by him long before, some prior to April; for Hoffmann did not report to the cashier at the actual date of the receipt of goods, only when bills were received from the advertisers. In retaining Hoffmann, therefore, it does not appear that the company did any act which injured the sureties or made them liable for more than they would be if he had been discharged in April. In fact, he reduced the amount recoverable during the period that he was retained.

The terms of Hoffmann’s employment were not changed by the increase of his salary and the discontinuance of commissions in September, 1890 No duties or responsibilities were then imposed upon him which hindered or impeded the proper and just performance of the duties guaranteed. Mayor, etc., v. Kelly, 98 N. Y. 467; Supervisor v. Clark, 92 id. 391. There was evidence of the company undertaking the publication of an additional newspaper, but this was an increase of work, and not a change of duty. Both these points, however, are mooted for the first time upon appeal; the defendant not asking for the submission to the jury of any question of fact arising thereon.

There is also a claim that a part of the recovery ($25) was not for goods collected by Hoffmann ; but this point was not made upon the trial, or it might then have been contested by plaintiff or allowed by the jury.

The instruction to the jury that the burden was on plaintiff to establish the breach of the condition of the bond, and on defendants to avoid the effect of such breach by showing that it was treated as a debt or converted into a debt, was not error. It was an affirmative defense that the charge against Hoffmann for not accounting for goods received had been changed into an indebtedness, Wallace v. Blake, 30 St. Rep. 248; Abb. Tr. Brief Pl. 665, 666 ; and the burden was on defendants to prove an affirmative defense.

.None of the other exceptions present error. The judgment and order are affirmed, with costs.

All concur.