text:
    CORNELIA I. SPRINGSTEENE, Respondent, v. MOSES B. GILLETT, Appellant.

      Judgment — how pleaded, —Oode of Oml Procedv/re, see. 532— action of foreclosure— judgment for deficiency— entry and doclcet thereof, upon the report of the referee— a failure to have his report confin'med is a mere irregularity.

    The complaint in this action alleged, among other things, the recovery by the plaintiff’s assignee of a judgment in the Supreme Court against the defendant for $1,065.18, and,that “ said judgment was on said 11th day of May, 1860, duly docketed against said defendant in the office of the clerk of Monroe county.” This action was brought in 1879 to recover the amount due upon the said judgment.

      Held, that under section 532 of the Code of Civil Procedure, the judgment was sufficiently pleaded.
    Upon the trial the plaintiff introduced in evidence a judgment-roll in an action-of foreclosure, entered and filed in the said clerk’s office April 17,1860. The judgment directed a sale of the mortgaged premises by a referee who was directed to apply the proceeds'of the sale to the payment of the costs and debt, and to specify the amount of the deficiency, if any, in his report of sale, and further directed that the defendant “ pay the same to the plaintiff. ” He also introduced the referee’s report 'of the sale which was filed in the said clerk’s office on May 11, 1860, showing that a deficiency had arisen of the amount for which the clerk had docketed the judgment. No order confirming the referee’s report of sale was made.

      Held, that it was proper to allow such evidence to be introduced to prove the cause of action set forth in the complaint.
    That the omission to procure an order confirming the report was a mere irregularity which the defendant should have moved to correct with promptness, and which he had waived by his laches.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought in Í879, upon a judgment entered in Monroe county in an action brought in 1860 to foreclose a mortgage and to recover any deficiency arising upon a sale of the mortgaged premises.
    The answer contained certain denials but did not set up any affirmative defense. .

      Seth H. Terry and J. M. Dimming, for the appellant.

      W. II. Shuart and J. S. Morgan, for the respondent.
   Hardin, J.:

The complaint avers that Thomas Smith, on the 11th of May, 1860, recovered a judgment in this court against the defendant for $1,065.18, in an action; and “ which said judgment was onsaid 11th day of May, 1860, duly docketed against said defendant in the office of the clerk of Monroe county,” and the assignment thereof to the plaintiff. No motion was made to have the complaint made more certain. But the defendant in his answer “ denies that he has any knowledge or information sufficient to form a belief as to whether at the time, and at the place and in the court in said complaint stated, Smith recovered a judgment as in said complaint is alleged, or as to whether any such alleged judgment was docketed as jn said complaint is alleged.” He admits that no part of such alleged judgment has been paid.”

The court at the trial properly held that the complaint was sufficient. It is provided in section 532 of the Code that it is not necessary to state the facts conferring jurisdiction, birt the judgment or determination may be stated to have been duly given or made.

"When the plaintiff produced a judgment-roll “made up in due form and filed April 17, 1860, in the clerk’s office of Monroe county, in .which the mortgaged premises were situated,” and proposed to read it in evidence, the defendant took two objections, which were overruled. The first was “ that it was not the roll of the judgment described in the complaint,” and the second was “that it was a roll of a judgment in a foreclosure action, and should have been set up in the complaint in. detail, alleging the different steps in such foreclosure resulting in such judgment.”

We think the objections were properly overruled and the roll allowed' in evidence. The complaint in that action alleged that the defendant here, who was a defendant there, was personally liable for the debt secured by his notes and the mortgage collateral thereto, and that the whole debt was $1,372 and prayed in addition to the foreclosure of the mortgage, viz.: “ That the defendant Moses B. Gillett may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto.” It was proper to make such a contingent decree or judgment for the payment of such deficiency. (McCarthy v. Graham, 3 Paige, 480.)

There was a reference to compute the amount due and the referee reported the amount due to be $1,418.88, on the 14th of April, 1860, and his report was confirmed and a sale ordered by a. referee who was directed to apply the proceeds of the sale to the costs and the- debt, and to specify the amount of such deficiency in his report of sale, and that the defendant Moses B. Gillett pay the same to the plaintiff.

The judgment was given at a Special Term of this court held by Judge Knox, on the 17th day of April, 1860, in' the city of Rochester. When the report of sale, made by the referee and filed in the clerk’s office of Monroe county, May 11, 1860, was offered in evidence, the defendant objected to it as incompetent and immaterial. The1 court overruled the objection and the defendant excepted.

As we have seen the judgment authorized the sale, and the report was in obedience to the judgment directing it to be made, and it specified the amount of the deficiency. Such report was competent evidence of the proceedings had under the judgment, and furnished the highest evidence of the deficiency arising upon the sale, and limited and ascertained the extent of the defendant’s remaining personal liability.

The judgment did not reserve any questions to be determined by the court. The report was therefore a mere ministerial act, authorized to be performed by the referee who made the sale, and such report was made in accordance with the requirements of the judgment and in accordance with the practice of this court, in respect to ascertaining the amount of any deficiency remaining after the application of the proceeds of the sale. As no questions were reserved the judgment was final. Had any questions been reserved requiring further judicial action of the court, it would. have been interlocutory. (Old Code, § 245 ; Mills v. Hoag, 7 Paige, 18; Johnson v. Everett, 9 id., 636; Morris v. Morange, 38 N. Y., 172; Clark v. Brooks, 2 Abb. [N. S.], 385; Moore v. Shaw, 15 Hun, 428; Gray v. Cook, 24 How. Pr. R., 433.) Nothing was left involving future litigation and the decision of the Special Term, its judgment, was final. (Smith v. Lewis, 1 Daly, 452.)

Mr. Crary, in his work on Practice in Special Proceedings (at page 318 of vol. 1), says: “The report is a history of his (the referee’s) proceedings and should show that every direction gi/oen in the judgment had been carried out.” “ The report should be filed and a note of the day of filing entered by the clerk in the proper book under the title of the cause, and the report will become absolute and stand as in all things confirmed unless exceptions thereto are filed and served within eight' days after service of notice of filing the same.” In volume 1 of Barbour’s Chancery Practice (page 529), it was laid down that “ after the master’s report had been filed the complainant’s solicitor enters a/n order of course, that the sale may be confirmed, unless cause is shown against it within eight days, and if no exceptions are filed and served within that time the order will become absolute of course, without notice or further order, unless there is application in the meantime to set aside the sale.”

The Code of 1847, 1848, and the amendments, wrought a change by conferring on this court the powers and duties theretofore performed by the Court of Chancery, and it is obvious that the judgment of foreclosure and the judgment for deficiency were properly united, and that the defendant’s liability to pay the deficiency was fixed and established by the judgment of the Special Term of April, 1860. The amount was to be ascertained by the referee who made the sale, and. that duty was ministerial merely. (Moore v. Shaw, supra, 430).

The object of docketing the deficiency was to give the plaintiff a lien upon any other property and to lay the/foundation for an ordinary money execution. If it were correct to call the entry upon the docket the entry of a judgment, it would follow that if it was regular to enter an order confirming the report and declaring the deficiency'in accordance therewith before entry of the. facts as to the extent of the deficiency upon the docket, its.omission would be but an irregularity. To avail of that, the defendant would be required, as in other cases of irregularity, to move with promptitude. It-has been long provided by a statute that the court shall not, after the lapse of one year, interfere or set asidp a - judgment for irregularity, on motion. (2 R. S., 359; Cook v. Dickerson, 1 Duer, 679.) Laches were sufficient to defeat such a motion, if made by the defendant. (Moore v. Shaw, supra.)

There is no presumption that the deficiency was not correctly ‘ reported and entered in the docket. The defendant’s liability in this case is dear and its extent certain. The judgment of the Special Term of 1860, required the defendant to pay, and his omission to obey the requirements of that judgment furnished ample support for the recovery had against him in this action. Formerly it was said that a Court of Chancery was not a court of record. Such was the rule of the common law. It was however held in 1805, in Post v. Neafie (3 Caines’ Rep., 22), “ that if the decree be for the payment of one gross sum of money ” there may be an action of debt brought in a court of law. This rule and the case, were followed and applied to an action upon an order made by a surrogate in Dubois v. Dubois (6 Cow., 496).

The preamble of the Code of 1848 declared that it was expedient that “ the distinction between legal and equitable remedies should no longer continue.” And the sections following providéd for a judgment to evidence the recovery in any action. Section 245 says : “ A judgment is the final determination of the rights of the. parties in the action.”

It follows that the judgment of the Special Term of April 1860, directing the defendant to pay the deficiency between the “ amount so reported due to the plaintiff,” and the proceeds of the sale, “ formed a suitable and efficient basis for an action of debt.” There was proof that the judgment was duly assigned to the plaintiff and the amount was admitted to be correct, and the court properly ordered judgment for §2,669.15, which should be affirmed.

Bache v. Doscher (67 N. Y., 429) does not aid the appellant, as in that case there was no demand or provision made against ’ the defendant for any deficiency.” And the court said, viz.: “Assuming that the report is evidence of all the facts stated in it, it appears that there was no deficiency, and that sthe plaintiff had in his hands ample money to pay the mortgage and leave a surplus,” and “ upon such a state of facts ” it was said the plaintiff was properly non-suited.

In The Hanover Fire Insurance Company v. Tomlinson (3 Hun, 630) there was no judgment entered for the deficiency, and it was said that when such a judgment was docketed the plaintiff had a right to issue an execution, and, therefore, leave to bring an action upon the judgment was held to have been improvidently granted by the Special Term.

No question arises here under the statute requiring leave to sue either under section 71 of the Code of Procedure or section 1913 of the Code of Civil Procedure, as this action is not “ between the original parties to the judgment,” and no such question was raised at the trial. "When the case last referred to was in the. Court of Appeals (58 N. Y., 215) the point involved here was not passed 'upon, and the remark of Pappalo, J., suggested only that it was “ questionable whether there was any judgment upon which an action could properly be founded.” As befóte stated in the case in hand, a judgment was docketed by the clerk for the amount of the deficiency reported by the referee, and that remained unquestioned for more than twenty years, and its regularity could not be questioned in this action.

The judgment should be affirmed.

Smith, P. J., and Macombee, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    BENJAMIN S. TIFFANY, Appellant, v. GEORGE R. WILLIS, Respondent.

      Gua/raqity of collection — what laches of the creditor in cueing the debtor will release the guarantor.

    The complaint in this action alleged that on March 7,1875, one Cursen made his note for fifty dollars, payable to the defendant, or hearer, on the first day of April then next; that, at or about the same time the defendant guaranteed the collection of the note and transferred it for a valuable consideration; that subsequently the plaintiff became the owner and holder of the note so guaranteed; that on November 3, 1880, the plaintiff commenced an action against the maker in Orleans county and recovered a judgment therein upon which an execution was issued, and returned unsatisfied by the sheriff of that county on November 29, 1880. This action was commenced on the last named day. The note was dated at Ridgeway in Orleans county.

      Meld, that the unexcused delay of five years and six months in bringing an action against the maker discharged the defendant from all liability upon his guaranty. That the complaint was properly dismissed upon the ground that it did not state facts sufficient to constitute a cause of action.
    Appeal from a judgment in Orleans county, dismissing tbe plaintiff’s complaint, entered upon tbe trial of this action by tbe court without a jury.
    Tbe court “ found as facts, tbe facts as stated in tbe complaint ” and that the action was commenced on the 29th day of November,. 1880. As conclusions of law : 1. That tbe plaintiff is not entitled to' recover of defendant. 2. That tbe complaint be dismissed. TTpon plaintiff opening, tbe defendant moved that tbe complaint be dismissed “ on tbe ground that it did not contain facts sufficient to constitute a cause of action, which motion of defendant was granted and plaintiff excepted.

      Hunt & Whedon, for tbe appellant.

      Nelson A. Graves, for tbe respondent.
   Hardin, J.:

In tbe complaint it was averred that George Carson made bis note for fifty dollars,'March 7, 1875, payable on tbe first of tbe following April, and that it was payable to tbe defendant Willis, who, about tbe same time, executed a guarcmty of the collection thereof and transferred it, and tbe plaintiff became tbe owner of tbe note and guaranty, and that be, on tbe 3d of November, 1880, commenced an action in this court against tbe maker in Orleans county, and recovered a judgment tbereon tbe 26tb of November, 1880, and on that day issued an execution tbereon which was returned by tbe sheriff of Orleans county wholly unsatisfied on tbe • 29th of November, 1880, and it appears this action was thereupon on the last named day began.

Tbe note was set out and is dated at Bidgeway and that gives rise, with the issuing of execution to tbe sheriff of Orleans county, to tbe inference that tbe maker resided at its date and continued to reside in Orleans county for tbe five years and seven months succeeding tbe time when the note was due, and prior to any action by tbe bolder against tbe maker or guarantor.

Tbe answer of tbe defendant avers that tbe maker resided in Orleans county at tbe time of tbe execution of tbe note, and has since continued to reside there and that be might all that time have ' been sued “ by a personal serving of summons.” However, we do not intend to attach any importance to tbe averments of tbe answer. As tbe main question involved in tbe case is presented by tbe averments we have quoted from tbe complaint, and tbe finding of their, truth made by tbe trial court, we are of the opinión that tbe delay . of five years and six months in bringing an action against the maker of tbe note worked a discharge of tbe guarantor from the terms of bis guaranty of collection. (Burt v. Horner, 5 Barb,, 501; Vanderveer v. Wright 6 id., 547; Mains v. Haight, 14 id., 76; Penniman v. Hudson Id., 579; Craig v. Parkis, 40 N. Y., 181; Northern Ins. Co. v. Wright, 76 id., 448; affirming decision made by this court, reported 13 Hun, 166, opinion by Talcott, J.)

Tbe obligation of tbe creditor, as a condition precedent to a right to recover of tbe guarantor, to prosecute within a reasonable time, was pointed out and asserted in Newell v. Fowler (23 Barb., 628) and in Gallagher v. White (31 id., 94) and in Griffith v. Robertson (15 Hun, 346). In (Clark v. Sickler (64 N. Y., 235), Church, J., recognized Lewis v. Van Dusen (25 Mich., 351), and says it was well decided, and puts bis approval of it upon the ground that there was a delay of two years, during which tbe maker became insolvent, and tbe guarantor of collection was held to be discharged.

As there was no dispute about the situation and circumstances of the parties, and no question as to the steps which have been taken or omitted by the guarantee against the principal debtor, the question of due diligence was a question of law. (Burt v. Horner, 5 Barb., 501.)

The facts found in this case support the conclusion of law pronounced by the court, to wit, that the plaintiff had not made out a cause of action. Clark v. Sickler (supra), approves Thompson v. Hall (45 Barb., 214), where it was held that mere delay or indulgence would not discharge a surety or accommodation maker of a note. To the same purport is the case of Second National Bank of Oswego v. Poucher (56 N. Y., 348), where an indorser was held not to be discharged, though the creditor had persuaded the debtor not to pay the note in suit, but to apply his funds in payment of another debt held by . the creditor. The holder of a guaranty of collection stands ip a different position, and owes the guarantor the duty of diligence' in collecting of the principal debtor within a reasonable time. Nor does Hunt v. Purdy (82 N. Y., 490) aid the appellant. The defense relied upon to escape from a guaranty of payment of a mortgage, was that a notice had been given to the creditor to proceed and collect, and it was properly held that the burden of the defense was upon the defendant, and that the notice was insufficient, and that when sufficient notice had been given the burden is upon the defendant of showing that the failure to attempt to collect resulted in injury to the guarantor.

The judgment should be affirmed.

SMxth, P. J., and Malcombeb, J., concurred.

Judgment affirmed.


author: BARKER, J.:

text:
    MARIA E. SMITH, Administratix, etc., of MINORRIS SMITH, Deceased, Appellant, v. THOMAS ROBINSON, Respondent, Impleaded, etc.

      Letters of administration — when they maké valid acts done by the administrator prior to his appointment — evidence—admissions of persons interested — when they a/re admissible.

    The plaintiff's intestate died in 1883, leaving him’surviving, his widow, two sons Elijah and Morgan, and the plantiff a granddaughter. He then owned a bond and mortgage which had been given to him by Elijah. March 81, 1865, Elijah sold the land covered by the mortgage to one Snow, who had no knowledge of the existence of the bond and mortgage.- Snow paid $3,000 in cash, which was more than the amount due upon the said bond and mortgage, and gave back a new bond and mortgage to secure the payment of the residue of the purchase-money. At about the time of the delivery of the deed the next of kin — all of whom except the plaintiff were of age — executed and acknowledged a discharge in writing, under seal, of the said mortgage given by Elijah and indorsed a receipt in full upon the bond. This satisfaction and the bond and mortgage were delivered, with other old papers, to Snow who did not examine them. In April, 1877, letters of administration upon the estate were for the first time issued, by which Elijah was appointed administrator. He duly qualified and continued to act until July, 1879, when the letters were revoked, and letters de bonis ñon were granted to the plaintiff. The plaintiff never received any portion of the money paid by Snow.
    In this action brought by the plaintiff to foreclose the first mortgage against persons who claimed title under Snow, .upon the ground that the discharge and -receipt were invalid and void :

      Held, thát the discharge became valid and. effective, and binding upon all persons interested in the estate, upon the granting of letters of administration to Elijah in 1877, and that its validity and effect were not destroyed by the subsequent revocation of the letters so issued.
    Hpon the trial evidence was given of admissions made by the widow and Eljiah, to the effect that the bond and mortgage were satisfied and discharged.
    Held, that the evidence was competent as showing that the bond and mortgage should not be enforced in their interest.
    Elijah at the trial was asked by the plaintiff whether he intended to deliver the bond and mortgage, with the discharge, to Snow at the time he delivered the other papers.

      Held, that as the plaintiff denied, and Elijah did not admit, that the discharge had ever been delivered to Snow, the court properly excluded the evidence.
    Appeal from a judgment in favor of tbe defendants, entered upon the trial of this action by the court without a jury in an action brought to foreclose a mortgage.

      Minorris Smith died intestate in the year 1863, leaving him surviving Margaret Smith his widow, Elijah Smith, one of the defendants, and Morgan H. Smith, his sons, and the plaintiff Maria E. Tibbits, the only child of a deceased daughter, his only heirs-at-law and next’ of kin.
    Among the assets belonging to the estate of the deceased’ were a bond and mortgage, made by the defendant Elijah Smith, as mortgagor, to Minorris Smith as mortgagee, conditioned for the payment of the sum of, $1,000 on the 9th of November, 1866, with annual interest. At this time the said Elijah Smith was the owner in fee of the mortgaged premises, and remained such owner until the 31st day of March, 1865, when he, by a deed containing covenants of warranty, conveyed the same to one Ira L. Snow. At this time also the said bond,and mortgage remained unpaid, and no letters of administration had been .granted upon the estate of the intestate. At the time of the execution and delivery of the deed of conveyance Mr. Snow paid to Smith his grantor, in cash $2,000, as part of the purchase-money, which sum was greater than the amount unpaid 'upon the bond and mortgage. Smith did not disclose to the purchaser, Mr. Snow, the existence of the bond and mortgage, and the latter was ignorant of its existence. At the time the deed was delivered, or shortly thereafter, all of'the persons who have been named as the next of kin of the deceased, executed and acknowledged a discharge in writing, under seal of the said mortgage, in which it is recited that they were collectively the only heirs and next of kin of the deceased, and that the said mortgage “is redeemed, paid off, satisfied and discharged.” And upon the bond the same persons indorsed and signed a receipt of payment in full. The discharge and the receipt both bear date the same day a® the deed, the 31st of March, 1865. On the same day that the deed was delivered, or shortly thereafter, Elijah Smith, With other papers relating to the title of the premises, delivered the same to Mr. Snow, calling his attention to the same, and declaring that they were some old papers of no use to himself and probably would not be to him, as they were old deeds and mortgages relating to the farm. Mr. Snow received the papers, making no examination of the same, and did not, in fact, know-that the bond and mortgage,, receipt and discharge, were among the papers. On the day that Snow purchased the property he executed a bond and mortgage upon the same as a part of the purchase-money, which mortgage was afterwards foreclosed, and Snow’s title was transferred to the purchaser at the foreclosure sale; and the defendant Thomas Robinson is now the owner of a mortgage upon the said premises, his mortgagor deriving his title by mesne conveyance from Mr. Snow, Elijah Smith’s grantee.
    In April, 1877, the said Elijah Smith was duly- appointed administrator of the estate of the deceased, and- gave the usual and customary bond, and letters of administration were .issued to him by the surrogate of Wayne county. In July, 1879, the said letters of administration were revoked,’ and the plaintiff was appointed administratrix de bonis non, and soon thereafter commenced this action to foreclose the bond and mortgage, which belonged to the estate of Minorris Smith at the time of his death. Thomas Robinson is the only defendant who answers. The others have suffered a default. The court found as a fact, that “ on or about March 31, 1865, the defendant Elijah Smith, received from Ira L. Snow full payment of all moneys secured to be paid on the said bond and mortgage, and on the same day executed a receipt in .full upon the said bond and mortgage, and also a discharge of the same.”
    The court also found as a question of law that the discharge of said mortgage, executed by Elijah Smith March 31, 1865, became operative and effective as a full and legal discharge of the said mortgage, by the appointment of Elijah Smith in April, 1877, as administrator of the goods and chattels and credits of Minorris Smith the mortgagee, and that thereupon and thereby said mortgage became and was legally satisfied and discharged, and dismissed the complaint, without costs against the plaintiff.
    At the time the discharge was executed the plaintiff was a minor of the age of fifteen, and the court found as a fact that she never received any portion of the moneys due upon the bond and mortgage. The widow of the deceased and Morgan Smith are now both ■ deceased, and the plaintiff and defendant Elijah Smith, are their only next of kin. v

      Vcmdenburg & Saxton, for the appellant.

      Thomas Hobmson, in person, respondent.
   BARKER, J.:

By virtue of the letters of administration which were granted to Elijah Smith, he became vested with the -legal title of all the personal estate of the deceased, and had the right and power to collect all debts and discharge mortgage liens.

The statute requires that the inventory to be made under the direction of the administrator, shall contain a particular statement of all bonds and mortgages, notes and other securities, for the payment of money belonging to the deceased, which are known to such executor- or administrator. And also that all moneys which have'come to the hands of the administrator, and if none shall have come to his hands the fact should be so stated in the inventory.

The money unpaid upon the bond and mortgage in suit, if any, became a charge against him upon his appointment, and should have been embraced in his accounts as administrator, and he was the proper person to discharge the mortgage lien by executing a satisfaction- thereof sufficient for that purpose, and to entitle it to become a matter of record.

The appointment of a debtor as administrator of the estate of a deceased creditor, does not discharge the debtor from his obligations to pay and account for the debt, but it does discharge the right of action thereon at law, for the reason that he cannot in his representative capacity maintain an action against himself as a debtor to the estate. He is therefore the proper persdn to discharge liens of this nature, by executing a proper instrument. (Ely v. Scofield, 35 Barb., 330.)

If, however, an administrator should be removed from his trust without, in fact, accounting for the moneys due from himself to the estate, the administrator de honis non could, beyond all doubt, maintain all remedies which the law gives for the collection of debts against the debtor, upon the original obligations as they existed at the time of his appointment, as the law merely suspends the right of action while the debtor is vested wdth the right of administration.

The question before us for arljudicatibn is this, did the discharge of the mortgage, executed by Elijah Smith before his appointment, become valid and effective upon his receiving letters of administration ? If it ever became valid to accomplish the purpose for which it was intended, it remains so now. - This' plaintiff does not seek to set it aside as fraudulent, but she insists that it never became valid and operative as against the estate of the inortgagee. . ,

Letters of administration, when properly granted by the appropriate tribunal, have relation to the.time olthe death of the intestate, and legalize all of the intermediate acts of the administrators. After being clothed with the authority thus bestowed upon him, he is not permitted to question the validity of liis own agreements and contracts, which he may have entered into in good faith prior to his appointment, concerning the property and debts of the intestate.

The effect of this rule of law is very broad, and is so applied as to confirm and legalize the acts which he may have done, as administrator de son tort, .both for and against himself.

"Without the protection of this rule of law, great wrong and injustice would at times be done to innocent persons, trading and dealing with an individual in the actual possession*of the assets belonging to the estate of the deceased person.

By a strict enforcement of the rule, no injury or loss can come to those interested in the estate, which might not have happened to them if administration had been granted before any interference had taken place by the person who is afterwards appointed administrator. Upon his appointment he becomes charged in his representative capacity the same as if his dealings with the estate had occurred after he was vested with the legal right, and the sureties on his bond are liable to the same extent as their principal.

In Priest v. Watkins (2 Hill, 225), one of two administrators before letters granted, having a note in his possession belonging to the intestate, received pay thereon from the debtor, and this act was held to bar a suit by the- administrators after their appointment.

In Vroom v. Van Horne (10 Paige, 549), a foreign administrator not having sued out letters in this State and not being authorized to act here in her representative capacity, did' compromise, release and discharge mortgage securities; afterwards she applied for letters to be issued to herself, and they were so issued. She then commenced suit in equity, in her representative capacity, to set aside' the compromise and release and to foreclose the mortgages. The Chancellor held that as the compromise, an cl release were effected in good faith, go far as the mortgagors were concerned, the administrator was' estopped from insisting that she had no right to receive the money and execute the release.

In Gottsberger v. Taylor (19 N. Y., 150), it was held that the sureties of an administrator were liable for the money belonging to the estate received by him before his appointment.

In the following cases the general propositions which have been stated are fully affirmed : Walker v. May (2 Hill Ch. [S. C.], 23); Curtis v. Vernon (3 Durnf. & East, 590); In the Matter of Faulkner (7 Hill, 181); Rockwell v. Saunders (19 Barb., 473); Bellinger v. Ford (21 id., 311).

The administrator Elijah Smith, before he was appointed, did execute a formal discharge of the bond and mortgage in suit, reciting in the same that the mortgage was redeemed, paid off and discharged, and delivered the same to Ira L. Snow, who, on that day, became the owner in fee of the premises.

In my opinion, this discharge became valid and effective, and binding on all persons interested in the estate of the deceased upon granting administration to Elijah Smith, one of the persons who executed the instrument of discharge for the purpose of displacing the mortgage lien.

The plaintiff contends against this conclusion, for the reason that when the discharge was executed there was no money in fact paid by Elijah Smith the debtor to the estate, nor was any paid by Mr. Snow,who became the owner of the mortgaged premises, for the specific purpose and object of securing a discharge of the mortgage. At the time of the discharge of the mortgage, Elijah Smith the mortgagor had become interested in the security with the other heirs-at-law of the intestate. All the other persons interested in the payment of this debt joined in the release. It is fair to presume, in view of this circumstance, that Elijah Smith the debtor did pay them a consideration which was satisfactory to them for joining in the discharge. It is not questioned but that the widow and Morgan H. Smith, who were of full age, freely and in good faith executed the discharge. It is thus convincingly established as a fact that the debtor did make a payment from his own funds in some amount to a portion of tbe beirs-at-law wbo were interested in tbe enforcement of tbe bond and mortgage.

If tbis transaction, including tbe conve janee of tbe lands by Smith to Snow, bad occurred after tbe -letters of administration were granted, there would be no question but that the mortgage lien would have become -fully and legally discharged. Although Mr.' Snow was not aware of tbe existence of tbis mortgage lien when be received bis deed from Mr. Smith, tbe sum which be paid as part of tbe consideration money in equity may ' be treated as a payment in discharge of tbe bond and mortgage. That Smith intended to convey tbe premises free and clear of tbis incumbrance must be admitted. That Snow'acted upon tbe supposition that there was no incumbrance upon tbe property of tbis nature, Cannot be doubted. As against Smith tbe mortgagor, wbo had become interested in tbe security as one of tbe next of kin, there would be no difficulty in bolding, as a matter of fact, that be intended to and did receive, so far as be was concerned, tbe consideration money as a satisfaction and liquidation of tbe mortgage debt.

It is conceded by tbe plaintiff that in equity tbe mortgage is satisfied against all tbe persons intdrested in her grandfather’s estate except herself. The contrary could not be contended for with any sense of right and justice. I am of tbe opinion that upon tbe appointment of Elijah Smith as administrator, bis act discharging tbe mortgage in full, became effective as against the plaintiff as one of tbe next of kin of tbe deceased.

Upon the trial, evidence was given of .the admissions made by the widow and Elijah Smith, that tbe bond and mortgage were satisfied and discharged. Tbis evidence was entirely competent for tbe purpose of showing that tbis bond and mortgage should not be enforced in their interest.

Elijah Smith was called as a witness by tbe plaintiff and was asked tbe question, if be intended to deliver tbe bond and mortgage, with th'e discharge, to Snow at the time be delivered tbe other papers to him. Tbis evidence was objected to by tbe defendant, and tbe objection sustained and tbe plaintiff excepted.

As tbe plaintiff contended on tbe trial that the discharge was never delivered to Snow and the witness did not admit tbe fact but denied the same, tbe ruling excluding tbe evidence was not erroneous. (Dillon v. Anderson, 43 N. Y., 236.)

Tbe judgment should be affirmed, witb costs.

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

Judgment affirmed, witb costs.


author: Barker, J. :

text:
    WHIPPLE A. DARLING, Respondent, v. THE OSWEGO FALLS MANUFACTURING COMPANY, Appellant.

      Mvidence — when the statements of an agent a/re not admissible as against his prinai- . pal —what statements of a/n agent are inadmissible as a part of the res gestas.
    The buildings occupied by the defendant, for the manufacture of wool, having been partially destroyed by Are, and a portion of the walls having fallen, and other portions thereof being insecure and dangerous, a Mr. Ware was employed by the defendant to put the buildings in a safe and secure condition. When the ' portion of' the wall fell, it left standing portions of a brick cornice some thirty feet above the ground. Some of the brick in it were loose and liable to fall from a slight jar of the wall. A few days after the accident the plaintiff and some other laborers were employed by the defendant to assist in repairing the building under the direction of its superintendent, Mr. Ware. While working near the wall above referred to, in removing a stick of timber, the -plaintiff claimed that he was injured by the falling of a brick upon his leg. It was not claimed that the fall of the brick was occasioned by the removal of the timber, and the defendant claimed that if any brickfellit was by reason of the jarring of the wall by the running of machinery in other parts of the buildings.
    Upon the trial of this action, brought to recover damages for the injury so alleged to have been occasioned, the plaintiff was allowed, against the defendant’s objection and exception, to testify that after the removal of the timber, and some two minutes after the occurrence of the accident, he told Mr. Ware of it, and that the latter stated that the brick came from the cornice; that he saw that some of the brick there were loose and lay corner-wise and off the cornice the day before, and that he meant to. have them thrown down, hut did not, and that he then called to one of the men to go with him and throw off the loose brick.

      Held, that the court erred in allowing the witness to testify as to the statements ' so made by Ware.
    Appeal from a judgment, entered upon a veidictin tbe plaintiffs favor, for the snm of $500, and from an order denying a motion for a new trial made on the minutes of the justice before whom tbe action was tried.
    This action was brought to recover damages for personal injuries alleged to have been occasioned by the defendant’s negligence. At the time of the injury the plaintiff was in the service of the defendant as a laborer.

      W. J. Townsend, for the appellant.

      & JT. Dada, for the respondent.
   Barker, J. :

The defendant is a trading corporation, manufacturing wool into cloth, by the use of machinery, propelled by steam-power, located at Oswego Falls, its home office being in the city of New York.

During the morning of the only day the plaintiff was in the employ of the defendant, he' received, as he alleges, an injury to one of his legs, below the kne'e; that the same occurred in consequence of the negligence of the defendant, its officers and agents in directing him to labor in an exposed and dangerous place, of which he was wholly ignorant. The buildings occupied by the defendant were partially destroyed by fire a few days previous to the accident, the end brick wall of one of the buildings was injured and partly fell, leaving portions of the brick cornice some thirty feet above the ground with some of the brick therein loose and liable to fall on a slight jar of the wall. The defendant engaged Mr. Ware to put the building in a safe and secure condition, which the defendant claims was done; all the loose brick liable to be displaced were removed before the plaintiff was engaged to labor for it. The morning of the accident the superintendent, with some laborers including the plaintiff, were at the factory engaged in repairing and restoring the buildings. At this time the machinery was running in some one of the buildings. The defendant’s evidence tended to show that the wall was jarred by the action of the machinery. Near the wall described and within three or four feet of it, the superintendent, the plaintiff and others, were engaged in lifting and moving a piece of timber, several feet in length, the same being wholly separate and detached from any of the buildings. While the plaintiff was thus engaged a brick fell from the cornice and injured the plaintiff, as the proof tends to show. The party of men moved the timber some eight or ten feet, and laid it down, and the plaintiff immediately complained of the injury. He then and there and within two minutes had a conversation with Mr. Ware the superintendent, concerning the injury. There is no claim that the moving of the timber disturbed the wall or in any way caused the brick to fall.

In its answer, the defendant denied that the plaintiff was injured that morning, or that any brick fell as claimed by him, and on the trial contested the plaintiff’s right to recover for these reasons, and the proof tended to support this position. On the trial, and as a part of his proof-in-ehief, the plaintiff offered to prove by his own evidence the statements made by Ware at the time and place already mentioned, with a view of showing that at the time the plaintiff came on the work and at the time of the injury the wall was in an unsafe and insecure condition, and that the superintendent knew the fact. The defendant objected to the evidence upon the ground that it was incompetent, immaterial and irrelevant, and that it did not appear that Mr. Ware, the superintendent, was authorized to represent or speak for the defendant, and that his declarations or admissions made at that time were not evidence against the defendant. The objection was overruled, and the defendant excepted.

The plaintiff then gave the following evidence: ££ Mr. Ware said that£ he knew where the brick came from.’ He said: £ It came from up thei-e,’ pointing to the cornice; there' was some brick that lay corner-wise and off the cornice ; he said : ‘ I saw they were loose, yesterday, and I meant to have them thrown down ; I miss one of them; he called to Mr. Mosher and said: £ Let us go up and throw off those brick; ’ they started from where I was and went into the building out of my sight; he pointed to loose brick in the cornice on the building that had burned.”

Was this evidence competent? In my judgment it was not. It is a mere statement as to the condition of the wall on a prior day, and as to the superintendent’s intentions to remove the same. The 'declaration was not made in relation to any act then being done by Mr. Ware or the plaintiff, but it related to a collateral circumstance which happened at another time. It is mere hearsay-evidence, and its reception was in violation of a fundamental rule of evidence. The acts and movements of Ware and the plaintiff that morning did not directly nor remotely cause the brick to fall. The circumstance of its falling would have been the same if they had been a mile away and otherwise engaged. When the statemént was made by Ware the accident had occurred, and all the circumstances connected with itwereovér; the men under Ware had come to a standstill; the plaintiff had related the nature of the injury he had received ; no one was certain as to the cause of it, and an inquiry was begun between the plaintiff and his co-servants ás to the cause of the injury. Ware, as the agent and servant of the defendant, had no authority to make an admission concerning the injury. The statement of facts which Ware made to the plaintiff did not relate in the least degree to any of the acts performed by himself for the defendant, after the plaintiff had entered the service of the defendant. On the contrary, the admissions related to the condition of the wall and to the acts and omissions of one of the defendant’s servants, at a time when the plaintiff had no concern in either. The facts and circumstances of this case place it outside the rule which permits the admissions of an agent to be proved against and made binding on his principal.

The true rale, which is well understood and of universal acceptance, is correctly stated in Greenleaf on Evidence, with its limitations and qualifications, and is as follows: “ The principal constitutes the agent his representative, in the transaction of certain business ; whatever therefore the agent does in the lawful prosecution of that business is the act of the principal whom he represents. And where the acts of the agent will bind the principal, there his representations, declarations and admissions, respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gestw. * * * But the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending.” * * * When thus limited the declarations are of the nature of original evidence and not of hearsay; the representation or statement of the agent in such cases being the ultimate fact to be proved and not an admission of some other fact.” (See vól. 1, §§ 113; Story on Agency, §§ 13d, 137; 1 Taylor on Evidence, §§ 526, 541.)

There is difficulty at times in applying the principle laid down. by these authors. Numerous cases have been adjudicated wherein it is decided that the declarations and admissions of an agent are not receivable in evidence against his principal. The following decisions illustrate the rule, the facts and circumstances being similar to those in this case.

In Luby v. The Hudson River Railroad Company (17 N. Y., 131), the defendant was charged with negligence in running one of its cars drawn by horses, against the plaintiff and causing injuries. The driver was at once arrested by a policeman, and on being so arrested assigned as a reason why he did not stop the car, that the brakes were out of order. On the trial the plaintiff was permitted to prove the admissions of the driver as made to the policeman, and this was held to be error, the court in its opinion laying down the rule as follows: “ The declarations of an agent or servant will not in general bind the principal. * * * To be admissible they must be in the nature of original and not of hearsay evidence. They must constitute the fact to be proved and must not be the mere admission of some other fact. They must be made; not only during the continuance of the agency, but in regard to a transaction depending at -the very time.” And in commenting upon the facts of the case the court further remarked: “ The declaration (of the driver) was no part of the driver’s act, for which the defendants were sued. It was not made at the time of the act, so as to give it quality and character. The alleged wrong was complete, and the driver, when he made the statement, was only endeavoring to account for what he had done. He was manifestly excusing himself and throwing the blame on his principal.”

In White v. Miller (71 N. Y., 136) the rule is stated as follows: “ That the declarations of the agent are inadmissible to bind the principal unless they constitute the agreement which he is authorized to make, or relate to and accompany an act done in the course of the . agency, is applicable in all cases, whether the agency is a general or special one or the principal is a corporation or a private person.”

In Packet Company v. Clough (20 Wall., 528) the action was for personal injuries sustained by a passenger being transported upon one of the boats of the plaintiff in error. The passenger received the injuries while attempting to go aboard the boat and fell from the gangway provided for the use of passengers and received the injuries for which the suit was brought. The passenger remained on the boat for some days, and some forty-eight hours after the accident she had a conversation with the captain' about the accident which she, as a witness, was permitted to relate upon the trial, and it was as follows : “ He said it was through the' carelessness of the hands in putting out the plaink that I fell; that they did not put out the regular plank, but loose planks.” This was held to be error.

Fawcett v. Bigley (59 Pa., 411) is in point. The defendant’s barges had broke from their moorings and ran into the plaintiff’s barges and destroyed one of them and its cargo. The plaintiff, offered to prove on the trial the declarations of the defendant’s agent who had charge of the barge, made immediately after the accident happened, with a view of establishing the defendant’s negligence, that there was want of sufficient ropes and tackle on the barge owned by him. The offer was excluded and it was held not to be error.

’ The case of the Hanover Railroad Company v. Coyle (55 Pa., 402) is supposed, by the learned counsel for the plaintiff, to support the ruling at the circuit, but upon close examination it will be found unlike the case at bar in an important particular. In that case a peddler’s wagon was struck at a highway crossing and the peddler injured by a locomotive and his goods strewn over the ground near by. The engineer came upon the ground at once and made a statement concerning the accident and how it happened. The court held that his declaration was a part of the transaction itself, one of the circumstances connected with the injury, and remarked : “We cannot say that the declaration of the engineer was no part of the res gestee. It was made at the time of the accident in view of goods strewn along the road by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact.”

It will be observed that in that case the declaration was made by one of the actors in that occurrence, and illustrated the character of his act and was contemporary with it and did not relate to á matter that happened at another time and place..

There is a class of cases where the declarations of a party who has received personal injuries in consequence of the negligence of another, have been received in evidence when made contemperan eous with tbe event as being part of tbe res gestee and so near tbe main fact as to be proved with it and as a part of the same transaction and occurrence. Among such cases are Waldele v. New York Central and Hudson River Railroad (29 Hun, 35); Commonwealth v. McPike (3 Cush., 181); Brownell v. Pacific Railroad Company (47 Mo., 339); Insurance Company v. Mosly (8 Wall., 397), all of which are cited in the respondent’s brief. These cases are not hostile in principle with those already cited, and are upheld upon the ground that they were uttered by one of the actors in the transaction to which they relate and before the affair was fully terminated.

In reaching the conclusion that a new trial should be granted, I do not intend to suggest that the plaintiff is not entitled to a verdict upon the merits, but only to express the opinion that the defendant’s negligence was not proved by competent evidence.

New trial granted, with costs to abide the event.

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

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


author: Barker, J.: Hardin, J.

text:
    WILLIAM H. MANDEVILLE, Respondent, v. CHARLES M. MARVIN, Appellant.

      Practice — power of the General Term to correct errors committed by a referee where no exception was taken to his repoi't — when it should be exercised.

    The defendant sold and transferred to the plaintiff four promissory notes and certain other securities pledged to insure the payment thereof. At the time of the sale the defendant verbally promised and agreed that the said notes were valid and subsisting obligations against the makers, indorsers and guarantors thereof, and that none of them had been discharged from their liability thereon. These representations having proved to be untrue the plaintiff brought this action to recover the damages he had sustained. The referee directed a judgment for the amount of the notes and the costs of an unsuccessful action brought against one of the indorsers, but neglected to credit the defendant with the amount which it appeared the plaintiff had realized from the collateral securities held by him.
    The defendant excepted “to the direction for the entry of judgment in favor of the plaintiff,” but did not specifically except to the failure of the referee to require the plaintiff to apply the amount received for the collaterals in payment of the notes, nor did he specifically request the referee to require him so to do.

      Held, that the General Term is not prevented, by the failure of the party aggrieved to specifically except thereto, from correcting any error or mistake which may have been committed by a referee.
    That in this case the error was so grievous to the defendant and- the injustice which would be done, if the judgment were allowed to stand, was so great, that the judgment should be reversed, although no specific exceptions to the error committed by the referee had been taken. (Hardin, J., dissenting.)
    Appeal from a judgment, entered upon the report of a referee, •whereby the plaintiff recovered the sum of $730.71, with costs.

      William Spa/rgur, for the appellant.

      Bolles efe Moulton, for the respondent.
   Barker, J.:

The questions sought to be reviewed on this appeal are presented on the report of the referee and a bill of exceptions. The evidence produced on the trial is not set .forth in full. We cannot, therefore, review the questions of fact as found by the referee. It is stated in the bill of exceptions that certain facts were proved and tliat the evidence tended to establish other facts material to the issue; and the referee’s report contains a series of facts, as found by him, upon which he held as a conclusion of law that the plaintiff was entitled to a judgment in the sum of $730.71. It is claimed by the appellant that upon the facts as found the amount of the judgment is excessive, inequitable and unjust, arid should be set aside and a new trial ordered.

In August, 1876, the defendant was the owner of four several promissory notes; one dated May 22, 1873, made by Francis M. Whitcomb for the payment of .$125, thirty days after date, payable ■ to the order of Isaac Willetts, and by him indorsed. 2. Anote dated May 22, 1876, made by D. Rawson & Co. for the sum of $182, payable one month after date, to the order of the said Isaac Willetts, and by him indorsed. 3. A note made by D. Rawson & Co., dated October 10,1874, for the payment of $100, payable six months after date to the order of Timothy Regan, and by him indorsed. 4. A note made by D. Rawson & Co., dated the 15th day of June, 1874, for $100, payable to the order of Nathan A. Bennett three months after date, and by him indorsed, and with a guaranty of payment also thereon indorsed by the said Bennett.

Francis M. Whitcomb, the maker of the first of the above described notes, was one of the firm of D. Rawson & Go., and he, to secure the payment of these notes, had placed in the hands of the defendant a large amount of securities, being notes made by third parties.

The plaintiff was also one of the creditors of D. Rawson & Co., and held their notes and obligations for a sum amounting to between-seven and eight hundred' dollars. The plaintiff being informed that the defendant was the owner and holder of the several notes mentioned, and as security for their payment held the collaterals to which reference has been made, purchased from the defendant the four several notes, and paid therefor the sum of $711, and the notes were delivered to the plaintiff, together with the collaterals pledged as security for their payment. At the time of the sale and transfer, the defendant, by an oral agreement, promised and agreed that the said notes were all valid and subsisting obligations against the makers, indorsers and guarantors, and that none of them had been discharged from their liabilities on the said notes. The plaintiff commenced an action against Willetts upon the two notes which he had indorsed, who defended the same upon the ground that he had been fully discharged and released as indorser prior to the time when the notes were transferrred by the defendant to the plaintiff. Upon receiving the answer interposed by Willetts, the plaintiff gave notice to the defendant of the position taken by Willetts, and offered to allow Marvin to have the control and management of the action, and he declined to assume the control and direction of the suit.

Upon the trial of the issue before a jury, Willett’s defense prevailed, and he recovered a bill of costs against the plaintiff, which, after the entry of judgment, the plaintiff paid. Thereafter the plaintiff commenced this action against Marvin to recover the damages which he had sustained by reason of the breach of the contract of warranty made by Marvin on the sale of the notes. It is well settled by the many adjudications which have been given on the question, that the judgment in the suit against Willetts is conclusive against the defendant as to the non-liability of Willetts as indorser. (Delaware Bank v. Jarvis, 20 N. Y., 226; Whitney v. Nat. Bank of Potsdam, 45 id., 303; Littauer v. Goldman, 9 Hun, 231; Bell v. Dagg, 60 N. Y., 528.) It is held by the same authorities that in an action against a guarantor, upon his agreement that commercial paper by him sold and transferred is genuine, and that the parties thereto remain liable upon their promises, and have not been discharged therefrom, he is liable in an action for the breach of his contract for the costs which have been incurred in an unsuccessful litigation upon the paper which was the subject'of the sale. The defendant did not guaranty the payment or the collection of any of the notes. But as it was established upon the trial that D. Rawson & Co. and Whitcomb were all insolvent, the plaintiff was entitled to recover as his damages for the breach of the defendant’s contract the sums which were due and unpaid upon the face of the.-' note, as well as the costs in the suit against Willetts.

Upon the facts foymd by the referee, together with the' terms of the written assignment transferring the collaterals with the notes, the moneys collected by the plaintiff upon the nofies and securities hypothecated were, as between the parties to Ahis suit, first to be applied in the discharge of the liability of D. Rawson & Co., the makers of these several notes. /

' It was stated in the case ahd found acia fact that the plaintiff had collected and received upon the collaterals the sum of $667.75. As a question of law the referee fro and that the plaintiff was entitled to recover the balance due upon the notes indorsed by Willetts and the costs of the suit against him, amounting in the aggregate to the sum of $730.71. T¥e defendant in his answer sets up as a defense that since the assignment and transfer of the notes and securities to the plaintiff he' had collected and received upon the collaterals in his hands $1,000 and upwards, and more than enough to fully pay and satisfy/the amount due and unpaid upon the four notes which were transferred to the plaintiff. The referee omitted in directing judgm^ht against the defendant to make any application whatever of the/'moneys collected by and in the hands of the plaintiff at the time''of the commencement of this suit. In his conclusions of law, as i/fet forth in the report, he makes no reference to this question whatever. The appellant seeks to correct this omission and to s/ecure an application of this sum in diminution of his liability to the plaintiff. It must be conceded that the omission to make the application was an error, and that in justice and equity the defendant should be credited with the sum so collected, the application-to be made in such manner as to protect all the' rights of the plaintiff.

i It is urged by the respondent that the defendant has failed to raise the question by omi&ing to take the proper and necessary exception to the referee’s report. Before considering this question it is proper to consider and determine how and the order in which the application of the sum collected should be made. The notes pledged as collaterals were intended to be made as a security for all of the notes which were sold by the defendant to the plaintiff.

In this action, upon the facts as they are now found, it is just and equitable to allow the plaintiff to retain out of the sums collected an amount equal to the two notes made by D. Rawson & Co., not indorsed by Willetts but by other parties, and which remain unpaid and which amounted at the time of the commencement of the suit to $256.64. Tbit sum being deducted from the sum of $667.76 leaves the sun or .$411.12 as an amount which the plaintiff should have been allowed arid credited in this action against the liabilities established against him upon his contract. It is not stated in the findings of fact when the sum realized by the plaintiff on the securities was received, and therefore it is proper to assume that they were collected after the conumencement of the suit against ■Willetts, and were not in hand for aajr measurable length of time prior to the commencement of this suit.

The only exception which, in any way, n.A,- h to the error now complained of is as follows : “ The defence. . excepts to the direction for the entry of judgment in favor of the plaintiff.” The other exceptions which were taken relate to the question of his liability for the costs in the suit prosecuted by the plaintiff against Willetts. Placing upon the exception a' strict and technical construction, it directed to be entered, but is an exception to the direction that judgment be entered in favor of the plaintiff. is not an exception as to the amount, for which was

In the conclusions of law, as set forth in the report, the mentions the amount of the notes indorsed by Willetts and the interest which had accumulated thereon in separate items, and then gives the amount of the costs for which the defendant is liable, with the item of interestplaintiff is entitled that sum, seven hundred and thirty dollars and seventy-one cents, judgment is to be entered, with costs.”

The exceptions were prepared, doubtless, upon the supposition that the defendant was not liable for the costs in the Willetts’ suit, and if lie was correct in that proposition, then, upon an accurate computation of the interest, the plaintiff would not be entitled to any judgment.

Although the appellant has not á)pecifically and positively indicated the error upon which he now relies, I am of the opinion that this court has the power, and that it is its duty, to correct the error so plainly visible, and not compel the appellant to suffer the injustice which will be done him if the mistake indicated is not corrected. When issues of law- or fact are tried by a referee the only way to review the trial upon the merits is by an appeal to the General Term. This right of appeal is given to the defeated party, and he may apppeal from the facts or the law as found by the referee, or from both. (Sec. 1346 of the Code of Civil Procedure.)

TJpon the hearing of such an appeal the court has the power to reverse the same and to grant a new trial, or to correct and modify the same as in its judgment seems just and proper. (Sec. 1317 of Code of Civil Procedure.) In a strict sense the General Term, in reviewing a judgment entered upon the decision of a referee in an action originally commenced in this court, is not exercising appellate jurisdiction. The cause is yet in the Supreme Court, where it originated, and the whole record may be' inspected, and every substantial error which is disclosed by an examination may and should be corrected.

In Syracuse Savings Bank v. The Syracuse, Chenango and New York Railroad Company (88 N. Y., 110) the power and jurisdiction of the General Term was under consideration, and it was there remarked, in an opinion by Earl, J.: “ It cannot be doubted that a Special Term, upon motion, could, at any time prior to the appeal to the General Term, have granted the same stay which wa6 granted at the General Term; and it cannot be doubted that the Special Term, upon motion, could hav.e given leave to these respondents to renew their motion to vacate the order of sale, and the General Term had the same power. The Supreme Court is one court exercising its jurisdiction through. the Special Terms, Circuits and the General Terms. And the General Term, except as limited by the laws, has all the power and all the general jurisdiction of the Supreme Court.” (Folger v. Fitzhugh, 41 N. Y., 228; Tracy v. Talmadge, 1 Abb. Pr. R., 460; Gracie v. Freeland, 1 N. Y., 228; Anonymous v. Anonymous, 10 How. Pr., 353.)

Provisions are contained in the Code of Civil Procedure for taking exceptions to the rulings made by the referee, during the trial, and to his conclusions of law, as set forth in his findings, and as to the mode and manner of bringing such exceptions before the General Term for review. (Sections 992, 993, 994.) The regulations thus provided are intended as a rule of procedure and practice, and as a convenient way of bringing the attention of the court to the errors and mistakes which are claimed by the appellant to have occurred upon the trial. I am not aware of any statutory provision which prohibits the General Term from correcting any mistake or error which may have been committed by the trial court, although no exception was taken, distinctly indicating the alleged error. Nor am I aware of any decision of the courts to that effect. On the contrary, it has been frequently adjudicated that the General Term has the power, and that it is its duty to examine and determine whether the conclusions of the trial court were according to the evidence and the justice of the case; and if the court reach the conclusion that substantial error has been committed to set aside the judgment and order a new trial. (Hamilton v. Third Ave. R. R. Co., 53 N. Y., 27; Grocers’ Bank v. Penfield, 7 Hun, 284; Roosa v. Smith, 17 id., 138; Godfrey v. Moser, 66 N. Y., 253; Roe v. Roe, 14 Hun, 612, and the cases there cited.)

The decisions of the Court of Appeals as to its own want of power to review questions, when no specific exception has been taken, has no just application to this court, as that tribunal has only appellate jurisdiction and can only review questions..of law.

The case of Jarvis et al. v. Driggs et al. (69 N. Y., 143), is not applicable to the case before us, as that case was an appeal from a judgment entered upon the verdict of a jury. The judgment was affirmed at the General Term of the Court of Common Pleas, in which court the action originated, and from the judgment of affirmance an appeal was taken to the Court of Appeals, and the latter court held that the question of law sought to be reviewed was not presented by a proper request and exception on the trial.

The case of Keogh v. Westervelt (66 N. Y., 636), does not hold and decide that this court has not the power to correct an error either of law or fact, committed by the referee, if no exception has been taken in due time and form; but is an authority that the Court of Appeals cannot examine into an error of law, committed by a referee, without such an exception.

It is evident that the appellant was disappointed and felt aggrieved over the amount of the judgment directed to' be entered againsc him, and sought by exceptions, which he deemed sufficient, to bring the question which has been considered and found to be erroneous, to the attention of the court. I am of the opinion that the error which has been pointed out, is so grevious to the defendant, and the injustice which will be done him if the judgment is allowed to stand so great, that the judgment should be reversed, although there was a failure to make the specific exception, indicating the mistake which the' learned referee made in ordering a judgment for tlie .sum mentioned.' I am also of the opinion that a new trial should be granted, instead of correcting the judgment in the particular mentioned.

It appears from the findings of fact, that one of the collaterals, amounting to the sum of three hundred and. fifty dollars, had been secured by bond and mortgage and held by the plaintiff. It is not disclosed in whose name the security was taken nor when it is to be paid, and it cannot now be decided whether the plaintiff ought to be called upon to account for the same or not, as the evidence bearing upon that question is not set out in the bill of exceptions. Upon another trial the defendant may be able to show that the plaintiff has so dealt with that security that he should be charged with the amount of it.

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

Smith, P. J., concurred.

Hardin, J.

(dissenting]:

Bevond all question it is settled that a party who transfers chose in action with a warranty of its validity, when, in fact, it invalid, renders liimself liable to the transferee. (Delaware Bank v. Jarvis, 20 N. Y., 226; Littaur v. Goldman, 9 Hun, 232; Bell v. Dagg, 60 N. Y., 528; Whitney v. Nat. Bank of Potsdum, 45 id., 303.)

Equally well is it settled by the authorities that where the transferee brings an action upon the chose in action, and a defense is interposed and notice thereof given to the transferer of such defense, and an opportunity afforded to take control and management of the prosecution, j;ke verdict or decision of the issue is binding and conclusive upon the transferer. (Delaware Bank v. Jarvis, supra; Whitney v. Potsdam Bank, supra.) Therefore the holding in the case in hand, that the verdict was conclusive and the judgment entered thereon binding upon the defendant was correct. And it was properly held by the referee that the defendant was liable to make good the loss sustained by the plaintiff in bearing the costs and expenses of the action brought by the plaintiff upon the indorsements upon the notes which the defendants so transferred to the plaintiff.

Authorities to which we have already referred establish a rule which allows a recovery of the costs and expenses of the action brought by the plaintiff, and by the evidence it is clear that the costs and expenses of that action, incurred in the usual course of conducting such an action, amounted to $298.15, and they were therefore properly allowed in this action as a part of the recovery. The defendant upon the trial of this action did not, nor did he in his formal exceptions, challenge the amount which the plaintiff was entitled to recover. Without such an exception we cannot review the question now made as to the amount which the plaintiff should recover: (Keogh v. Westervelt, 66 N. Y., 636.)

An exception raising the question as to whether plaintiff was entitled to recover any damages, does not bring up the amount which should have been allowed. (Jarvis v. Driggs, 69 N. Y., 147; McMahon v. The N. Y. and E. R. R. Co., 20 id., 470; Code of Civil Procedure, §§ 992, 993, 994; James v. Cowing, 82 N Y., 458.)

The recovery was for the amount of the notes, and the costs and expenses of the action brought upon the indorsements. Under a proper exception, we might have limited the recovery to whatever remained unpaid to the plaintiff of the purchase-price which he paid for the notes ; but as the point now urged upon us in that regard was not made at the trial, and as no exception to a refusal to so find as to limit the amount to less than the face of the notes, or to a finding of the amount of the dámages, we do not regard the point as properly before us. We might, from the referee’s opinion, conjecture that had the point been seasonably raised before him he would have cut the recovery down $200.

However that may be, we do not see any exception which calls upon us to examine the question now made for the first time as to the amount for which a recovery should be had.

The judgment should be affirmed.

Judgment reversed, and new trial prdered before another referee, costs to abide event.


author: Barker, J.:

text:
    JESSE H. BRIGGS, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant. GEORGE SCHUYLER, Plaintiff, v. THE SAME, Defendant. JULIUS B. STERLING, Plaintiff, v. THE SAME, Defendant.

      Negligence — liability of a railroad company for an obstruction to namgaiion, caused by its ca/i'éless use of a draw-bridge.

    The defendant’s road crosses the Seneca canal, at the foot of Cayuga lalte, over a draw-hridge. A bridge has been maintained at this point for a period of thirty-five years. While the draw was open and a canal boat was passing through, the defendant carelessly and negligently ran a locomotive into the draw and upon the boat, sinking it, and thereby suspending all navigation at that place for a period of five days. Immediately after the accident, the defendant pro1 ceeded with due diligence to remove the obstruction and repair the bridge.
    These actions were brought by the owners of canal boats who were at the time of the accident, engaged in carrying coal from Ithaca to Gteneva, to recover damages sustained by their having to wait at the bridge until the obstruction, was removed.

      Eeld, that they were entitled to recover.
    Motions for a new trial on exceptions ordered to be heard in the first instance at the General Term, after verdicts had been rendered in favor of the respective plaintiffs. .

      .These actions were tried at the Cayuga Circuit' and by consent were tried together as one cause, the jury rendering a verdict in each case for the sum of fifty-seven dollars and fifty cents.
    The route of the defendant’s road bridges the Seneca canal at the foot of Cayuga lake. The bridge is so low that it requires a ■ draw to enable boats navigating the canal to pass the bridge. On the day mentioned in the pleadings while a canal boat was passing the bridge and the draw was open, by an act of negligence on the part of the defendant a locomotive engine vras thrown into the draw and upon the canal boat, sinking 'the same; in consequence of which navigation was suspended at that point for a.period of five days. The defendant’s negligence in operating the draw and running the engine into the canal was not disputed'upon the trial,'and was admitted upon the argument of this appeal.
    At the time of this occurrence the plaintiffs’ boats were engaged in carrying coal from Ithaca to Geneva. During that season of the year it required from three to four days to make the round trip. At the time of the accident the boat owned by the plaintiff Briggs had just-passed through the draw, going south ‘on her way to Ithaca. After securing her cargo and returning to the foot of the lake, which was at the end of two days, the boat was detained for four days on account of the obstruction. In Schuyler’s case his boat was at Ithaca at the time of the accident and came down to the place of obstruction with a cargo and was also detained for four days. In Sterling’s case his boat was.north of the bridge and near by at the. time of the accident on her way to Ithaca to obtain a load of coal, and his boat was detained five days before she could pass through the draw. ■ Immediately after the accident the defendant, with all proper force and appliances and with due diligence, commenced to remove the obstructions and repair the bridge. The superintendent of canals visited the place and rendered some assistance in restoring navigation, but the work was chiefly done by the defendant. When the obstructions were all removed and navigation resumed fifty canal boats were at this place waiting passage.
    At the close-of the evidence the defendant moved in each case for a nonsuit on the ground that the plaintiff had failed to establish a case, for the following reasons : First. That the damages, in case any have been sustained, are damages which are consequential, common to all the owners of boats who were navigating the canal at the time in question and were delayed by this obstruction, and therefore he cannot recover damages for the detention in an action of this character. Second. That the damages, if any, are too remote. Third. That the plaintiff has failed to show that he was running upon the canal with any rightful authority, and that he must show that he has filed his certificate of registry before he has any right to travel on the canal. The motion was denied and the defendant excepted. The exceptions were ordered to be heard at the General Term in the first instance.

      E. P. Eart, for the plaintiff.

      W. E. Adams, for the defendant.
   Barker, J.:

The canals are the property of the State, constructed and maintained at the public expense, to facilitate the transportation of property, free- to the use of all citizens who comply with established regulations in regard to the navigation of the same, and are in every sense public highways. The act of the defendant in constructing and operating a bridge over the canal for its own use, was rightful and lawful in every respect, done with the consent of the State, expressed in legislative action. The privilege thus granted to the defendant was given to it upon the condition that the bridge should be constructed in a proper and secure' manner, and operated with due care and caution, so as not unnecessarily to impair the usefulness of the canal or delay navigation. This obligation on the part of the defendant is absolute, positive and continuous, and admits of no other limitations or qualifications than those mentioned. The privilege thus granted is bestowed on the defendant in its private capacity, and for its gain and advantage in transacting the business which it is organized to do.

The defendant’s obligation to beep the bridge in repair and operate the same with due care and caution, has its foundation in an implied contract between it and the public, and the consideration which upholds the promise on the part of the defendant is the -privilege granted it by the State, permitting it to build and operate a bridge over the canal for its exclusive benefit and advantage. The defendant’s act of negligence in operating the draw and moving the engine was a breach of its assumed duty to the State, in consequence of which the canal became obstructed, navigation suspended and damage thereby accrued to the plaintiff. In all such cases the contract with the sovereign power inures to the benefit of every individual interested in its performance, and he may maintain a suit in the nature of an action on the case to recover his damages. This rule of law is now well established and applies to all contracts with the State, entered into ,by private persons or corporations, whether the same, be express or implied.

The proposition is formulated with care and accuracy in several reported cases, and is as follows : “ Whenever an individual or corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.” (Weet v. The Trustees of the Village of Brockport, reported in 16 N. Y., 163, in a marginal note in the case of Conrad v. The Trustees of the Village of Ithaca; Robinson v. Chamberlain, 34 N. Y., 389.) In the last of these cases the defendant’s liability to the plaintiff was adjudged to rest on the principles of law mentioned, the facts in the case bearing a striking similarity to those in the case in hand. Chamberlain was a contractor to keep a section of the Chenango canal in repair for one year, and during that time the plaintiff’s boat entered a lock which the defendant suffered to be out of repair, and in consequence thereof injury happened to the boat.

This case was followed in Fulton Fire Insurance Company v. Baldwin (31 N. Y., 648), where the essential facts were the same, the defendant Baldwin, being a contractor to keep a section of the canal in repair, negligently suffered an obstruction to remain and a canal boat, navigating the canal, ran upon the same and received injuries in consequence of which the boat was sunk and the cargo injured.

Reference may be made to another class of cases bearing upon the subject, where a municipal corporation is organized under a charter, imposing upon it the duty and obligation of keeping the streets within the corporate limits in repair, it is liable in a civil action to persons who have suffered an injury by reason of a neglect to perform such duty. (Conrad t. The Trustees of the Village of Ithaca, 16 N. Y., 153; The Rochester White Lead Co. v. The City of Rochester, 3 Comst., 465; McCarthy v. The City of Syracuse, 46 N. Y., 194; French v. Donaldson, 57 id., 496; Johnson v. Belden, 47 id., 130.)

It was disclosed on the trial that' a bridge of some kind had been maintained at or near this point for a period of thirty-five years, but the one now in use is of more recent construction, and upon a different plan. In the absence of any proof upon the subject, it is proper to assume that the defendant enjoys this privilege in pursuance of the provisions of the general railroad act, which may now be regarded as the general charter of all such companies.

The twenty-eighth section of the act confers the privilege on railroad corporations to bridge the canals whenever the route of the road crosses the same, and by the same section, the duty to keep the same in repair and operate the same with care and caution, is enjoined on the railroad’company. If the statute was silent on the subject of repairs, and the use of due care and caution in the management, the same obligation would exist on the part of the railroad’ company towards the public, arising out of the implied contract. The common law imposes the same liability on individuals and corporations receiving franchises from the State, although the charter bestowing the franchise is entirely silent on the subject. -(See West v. The Trustees of the Village of Brockport, supra, and the English cases there cited; Heacock v. Sherman, 14 Wend., 58; Dygert v. Schenck, 23 id., 446; Woodring v. Forks Township, 28 Penn. [4 Casey], 355; Township of Newlin v. Davis, 77 Penn., 317; Perley v. Chandler, 6 Mass., 453; Phœnixville v. Phœnix Ins. Co., 45 Penn., 135; Rex v. The Inhabitants of Lindsey, 14 East, 317.)

It has been repeatedly held that where a railroad company neglects to keep the street, highway or stream which it may intersect or cross in repair, and in consequence thereof, injuries happened to any of the public, a civil suit may be maintained in the name of the party injured, against the company to recover such damages as may have happened in consequence of such neglect. This duty to repair and keep in safe and secure condition is so plain and positive tliat it has been frequently enforced in proceedings by mandamus. ' (Garbutt v.. The Rochester and State Line R. R. Co., 16 N. Y., 294; The People ex rel. Green v. The Dutchess and Columbia R. R. Co., 58 id., 152.).

If these views are correct, the defendant’s liability is established without considering whether the recovery may not be sustained on other grounds. The damages, sustained by these plaintiffs, are the direct result of the defendant’s negligence and breach of duty. They were on a trip commenced before the obstruction occurred they were near by with their boats when it happened; they had paid for the privilege of navigating the canal at that time and place;. they were necessarily delayed by the careless and negligent act of the defendant. Nothing could have been done by them, or either of them, to lessen or mitigate the damages sustained.

Suppose the boat caught in the draw, and detained, had received no injuries, could not the owner have maintained an action for damages sustained by reason of the delay ? I cannot conceive of any reason why he could not. These plaintiffs were in the same section of the canal, engaged in the. same business and were necessarily detained by the obstruction, as much so, for the same reason, as the boat actually caught while passing through the bridge.

■ The plaintiffs were carriers of goods by canal, a particular kind of business, the privileges of which were secured for a consideration paid by them to the State, and every interference or interruption which delayed the progress of the trip, injured only them and the-owners of the cargo, and the damages thus sustained were special to-them and not common to the public.

Damages' of the nature of those sustained by the plaintiffs would most naturally, and almost necessarily, happen to persons navigating-the canal in case the bridge was not properly constructed and carefully managed, and must have been fully understood and comprehended by the defendant when it received the franchise and undertook to perform the conditions imposed as a consideration therefor..

Judgment ordered for the plaintiff in each action on the verdict,, with costs.

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

So ordered. '


author: Maoomber, J.

text:
    CHARLES IVES, Respondent, v. Mrs. JOHN WATERS, Appellant.

      Evidence — mercantile looks of account — what must be shown to authorize their reception as evidence in favor of the party keeping them.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon an alleged balance of account for meats sold and delivered by the plaintiff to the defendant, from time to time, between August 5, 1867, and November 14, 1874.
    The answer, besides containing a general denial, set up, among other things, the statute of limitations as a bar.
    There was no direct testimony that the several items constituting the account were, in fact, sold and delivered to the defendant. The plaintiff himself, who was the only witness upon that subject, testified in substance in a general way, that the defendant was indebted to him for meats purchased at different times of him and his brother.
    A witness by the name of Benjamin E. Waters was then sworn, to the effect that he had purchased goods of the plaintiff and had had a running account with him, and that he had settled with the plaintiff from the books presented by him, and that he found them to be fair- and honestly kept. The account book of the firm of S. T.

      & C. Ives, of which the plaintiff was a member, supposed to contain the items comprising the bill of particulars, was, under proper objection and exception by the defendant’s counsel, put in evidence.
    It further appears in the case that one-fourth of the entries upon the book put in evidence were in the plaintiff’s handwriting, and three-fourths thereof in the handwriting of his partner. It is also shown that the book is not one of original entry, but that a man by the name of Foot, who was in the employ of the firm of S. T. & C. Ives, made the original entries in a book called the blotter, from which they were transferred to the ledger. The blotter was not produced, nor was its absence accounted for, nor was Mr. Foote called as a witness, nor was the failure to call him explained.
    The court at G-eneral Term said : “ Yery little need be said as to the right of recovery for the seventy dollars and ninety-eight cents. The theory upon which mercantile books may be substituted for direct evidence of a sale and delivery requires that they be actually produced. Testimony to the effect only that an account book once existed which in the aggregate amounted to a given indebtedness, and is lost, proves nothing, though accompanied by the general ■statement that some of the items were in fact delivered.

      “ But, furthermore, we are of the opinion that no foundation was laid for the introduction of the plaintiff’s books in evidence for any purpose. The rule .as stated in Wosbu/rgh v. Thayer (12 Johns., 462), and as it still exists, is, that a foundation must be laid for their admission by proving that the party had no clerk ; that some of the articles charged have been delivered; that' the books produced are the account books of the party and that he keeps fair and honest accounts, and this by those who have dealt and settled with him. There exists no reason for relaxing the rule in any particular, because it was established by the courts, when parties could not be witnesses in their own behalf, and it .is a clear innovation upon the ancient common law which precludes parties from making evidence in their own behalf. The entries were not original and were not transferred from original minutes made by the witness.
    “ In Button v. Plummer (2 Ad. & Ellis, 341) the tradesman •copied the entries into a ledger in the presence of the clerk from a waste book kept by the latter, but the court held that the clerk might use the ledger as an original book and testify from its contents, otherwise the original book must be produced.
    “ In Gould v. Conway (59 Barb., 355) where entries were reported by a salesman, it was held that there must be ‘ testimony of the salesman in connection with the book. In MoGoldriolc v. Wilson (18 Hun, 443) the entries being transferred by the salesman from the slate to a book, were admitted in evidence only because sustained by liis testimony. (See, also, Peak v. Van Keller, 15 Hun, 471; Marcly v. Schults, 29 N. Y., 351; Russell v. Hudson River R. R. Co., 17 id., 134; White v. Ambler, 8 id., 170.)
    1 “ It was not enough to establish the case to produce the ledger into which the contents of the blotter were copied by another than the salesman. It was incumbent upon the plaintiff to call Mr. Foote, who, though a butcher, was clearly a salesman or clerk of the firm, or show that his testimony could not be procured. (Fisher y. Mayor, etc., 67 N. Y., 73; Oceam, National Bank y. Carll, 55 id., 440.)
    “We think it was error, under the circumstances, to receive the plaintiff’s book (the day book and ledger combined) in evidence.” * * *

      George W. Bagg, George A. Benton and Theodore W. Dwight, for the appellant.

      A. W: Mills, for the respondent.
   Opinion by

Maoomber, J.

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

Judgment reversed, and new trial ordered before another referee, costs to abide event.


author: Smith, P. J. ;•

text:
    BENJAMIN GRIFFEY and ARID PARDEE, Respondents, v. THE NEW YORK CENTRAL INSURANCE COMPANY, Appellant.

      Policy of inwrance — prohibition against its assignment by the holder — when such pi'ohibiiion does not include its assignment as a collateral security.

    Motion by the defendant for a new trial on exceptions, ordered -to be heard in the first instance at the General Term, after a verdict rendered in favor of the plaintiffs.
    The action was brought on a policy of fire insurance for $1,500.
    The court at General Term said: “ The only other question arises upon a provision of the policy that ‘ if this policy shall be assigned before a loss, without the consent of the company indorsed thereon, * '* * the policy shall be void.’. The plaintiffs transferred the policy in suit, with others, amounting in all to $16,000, to the Lewisburgh National Bank as collateral security for claims held by said bank against the plaintiffs. It will be observed that the policy does not prohibit a transfer of the policy, or (my interest therein; in other words, the condition is aimed only at a transfer which deprives the assumed of all interest in the policy. The assignment in this case merely created a lien for the security of a debt, and the entire interest remained in the assignors, subject to the lien or pledge. "We are inclined to think that the prohibition should be construed strictly, and that it does not apply to a mere pledge of the policy. (See Lazarus v. Commonwealth Ins. Co., 5 Pick., 80; Filis v.Krentzwan, 21 .Mo., 311; Washington Fire Ins. Co. v. Kelly, 32 Md,, 421; S. 0., 5 Bennett’s Fire Ins. Cases, 302; Wood on Insurance, § 339.) ” ,

      Reynolds c& Collin, for the plaintiffs.

      W. E. Hughitt, for the defendant.'
   Opinión by

Smith, P. J. ;•

Hardin and Haight, JJ., concurred.

New trial denied and judgment ordered for plaintiffs on the verdict.