text:
    The Delaware, Lackawanna & Western R. R. Co., App’lt, v. Nathan Corwith, Jr., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Warehousemen—Receipts issued to a person not the real owner.
    The plaintiff, a common carrier, issued arrival notices for certain merchandise upon which the consignees endorsed, “ Deliver to S. & Sons for our account, N. Corwith & Co., per G. Corwith,” and delivered the same to S. & Sons. The latter, without having the merchandise in their possession, issued warehouse receipts for the property to G. Corwith, in his own name, who sold said property and delivered said receipts to Russell & Co. S. & Sons subsequently purchased and received the receipts from Russell & Co. In the meantime N. Corwith & Co. sold the merchandise to other parties. In an action brought to determine the conflicting claims, Held, that as no authority by the consignees to S. & Sons to issue the receipts to G. Corwith individually was shown, said receipts were void, and that as S. & Sons thereafter purchased said receipts for value, knowing that they were invalid, they could not hold the property as against the purchasers from N. Corwith & Co.
    Appeal from judgment entered upon decision after trial by the court without jury.

      C. F. Birdseye, for app’lt; E. S. Cowles, for resp’ts.
   Van Brunt, P. J.

The only question presented to the court upon the trial of this action and which is involved in this appeal, was as to the ownership of five carloads of lead delivered by the plaintiff to the defeddants F. H. Stetler & Sons.

It appears that at the times hereinafter mentioned the then defendants, Nathan Corwith and Nathan Corwith, Jr., were copartners, doing business as N. Corwith & Co., and the defendants F. H. Stetler and H. I. Stetler were copartners, doing business as warehousemen in the city of New York.

In October, 1888, the plaintiff received at Hoboken the five car loads of lead in question, consigned to N. Corwith & Co. and, in the usual course of business, the plaintiff issued arrival notices as they are called for this lead, and on the face of the notice was printed a direction to return this notice with order for delivery endorsed on the back.

The next day the usual messenger from Corwith & Co. presented these receipts to the warehouse of Stetler & Sons, each of which contained the following endorsement:

“ Deliver the within to F. H. Stetler & Sons for our account. N. Corwith & Co., per G. Corwith.” G. Corwith meaning Gurden Corwith.

On the same day Stetler & Co., without actually receiving the lead upon the premises or having the same under their control, issued and delivered to said Gurden Corwith five warehouse receipts in his own name. Two days afterwards and while the lead itself was still in the actual possession and control of the plaintiff Gurden Corwith sold the lead in question to John Russell & Co., and delivered to them the warehouse receipts duly endorsed, in blank, receiving from Bussell & Oo. a check drawn to his own order which appears to have been deposited to his own credik Ñ. Oorwith & Oo. subsequently transferred their interest in the lead to other parties.

Anri Stetler & Oo. purchased from Bussell & Co. the warehouse receipts above mentioned, they being endorsed over to them.

The question presented is whether the defendants Stetler & Sons acquired any title to the lead or whether the title to such lead was vested in the assignees of IST. Oorwith & Co.

The answer to this question depends entirely upon whether or not Grurden Oorwith had authority to sell the lead to Bussell & Go.

The learned court in its opinion in the disposition of the case says : “ There is no allegation to show that Grurden Oorwith was not authorized to'take the receipt in his own name (referring to the warehouse receipts,) or that it was sold to Bussell & Co. without the authority of N. Oorwith & Go. On the contrary it expressly appears that Bussell & Co. purchased this lead from Oorwith & Oo. and the money paid therefor was paid to Oorwith & Co., and received by them for their own benefit.”

We have searched the record in vain to find any proof that Oorwith & Oo. either authorized the sale of this lead or received any part of the proceeds arising therefrom.

It is true that the evidence shows that in a large number of transactions Grurden Oorwith had been accustomed to endorse these delivery notices in the name of Oorwith & Co. But there is no evidence whatever that upon any other occasion Stetler & Co. upon a delivery notice so endorsed had ever issued a warehouse receipt for the property therein mentioned to Grurden Oorwith. All that the endorsement of these delivery notices imported was. that the transportation company should deliver to Stetler & Co. for the account of Oorwith & Oo. the goods mentioned therein.

Some argument is used by the respondent to show that the words “ For our account ” mean nothing upon the endorsement of the notice because they are in prink We are not aware that any portion of an instrument is to be disregarded merely because it is printed.

Stetler & Sons knew that this lead been consigned to Oorwith & Co.; they knew that the transportation company had been directed to deliver it to them for the account of Oorwith & Co., and they in violation of their duty, not having possession of the lead, issued a warehouse receipt therefor, and in addition issued a warehouse receipt to somebody other than the consignees when they had no evidence whatever that the consignees bad transferred their title to anybody else. If they had issued warehouse receipts, as they were in duty bound to do, to those whom they knew to be the owners of the merchandise this difficulty never would have occurred.

But receiving an order from Oorwith & Co. to get for them from the railroad company certain goods, they issued warehouse re-therefor to a third who was in a to the transaction so far as the legal rights of the parties are concerned; and thus placed it in the power of Gurden Corwith to perpetrate the fraud he did by the sale of the lead.

But it is said that Gurden Corwith was the agent of Corwith & Co., and had the right to dispose of the lead. As already stated, the case does not furnish a scintilla of evidence showing that he had ever sold for Corwith & Co. a pound of lead prior to this transaction. It did appear that he had signed other delivery notices for merchandise to be delivered to the warehousemen for the account of his principal, which is done every day by the clerk of a mercantile house, who it is not supposed for a moment has a right to sell the property of the house because he has the-right to receive it and direct its storage. And this is the strongest evidence showing the authority which Gurden Corwith had in respect to the affairs of Corwith & Co.

We are also referred to the evidence of a witness who testified that he was a clerk in the employ of E. A. Caswell; that he knew the signature of Corwith & Co., and that the signature of Corwith & Co. upon the back of the delivery notice was their signature by Gurden Corwith.

He is then asked the question, “What do you know about his authority to sign?’’ He answers: “Well I on several occasions have gone down to the office on important matters and they referred me to Mr. Gurden Corwith.

“ Q. To him? A. Yes, sir, told me he had the power to act for them.

“ Q. Mr. Hathan Corwith did? A. Yes, sir.”

To act in what capacity the witness does not say; what the important matters were, or what their nature was, he fails to disclose ; and that Gurden Corwith from this evidence is to be assumed to have the right to sell the property of Corwith & Co. would be straining his authority considerably beyond that which the evidence would justify.

Another witness, Mr. Casey, was asked if he knew whether Gurden Corwith was then acting as their agent or not; and he said he did; and his authority for this statement was the fact that the firm for which he was a clerk sold to Corwith &• Co., through Gurden Corwith, certain merchandise which was paid for by the check of Corwith & Co., a transaction very far from establishing the authority of Gurden Corwith to sell the property of Corwith & Co.

This is substantially all the evidence tending to show that Gurden Corwith had any authority whatever in connection with the affairs of H. Corwith & Co. It seems to us to be clear that there is an utter failure of proof to show that Gurden Corwith had the right to dispose of any portion of the property of Corwith & Co. And even if he had, the warehousemen in this case would be liable for the goods, because, knowing that Corwith & Co. were the ownners, they issued a warehouse receipt in the name of Gurden Corwith.

If the warehousemen had issued the receipt in the name of the real owners of these goods, this fraud never could have been perpetrated, as Russell & Co. would naturally have drawn their check to the order of the owners, and then the money would have gone to the credit of Corwith & Co., and there is no evidence that Cur-den Corwith had any authority to endorse checks payable to the order of Corwith & Co. or to draw checks upon their bank account.

It is clear that Gurden Corwith, having no authority to sell this lead, could confer no title upon Russell & Co., and Russell & Co. could confer no title upon Stetler & Sons; and that the subsequent transferees of Corwith & Co. of. that lead were the owners thereof and entitled to its possession.

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

Daniels, J., concurs.


source: Caselaw Access Project

author: Daniels, J. Van Brunt, P. J.

license: Public Domain

text:
    The New York, Lake Erie & Western R. R. Co., Resp’t, v. The National Steamship Co., Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    ■Carriers—When liable to connecting lines for freight charges.
    Cotton was shipped from Texas to New York over several connecting railroads, which, with the defendant, entered into a common bill of lading. This provided that the carriers should not be liable for loss by fire upon any property while in deposit or places of transshipment or at depots or landings at all points of delivery. While the cotton was on defendant’s wharf in New York it burned. Held,, that plaintiff, one of the connecting lines, could not recover its charges and the charges of other connecting lines advanced by plaintiff. That if the cotton had been loaded on the defendant's steamship when the fire occurred, defendant might have been under an implied liability to pay the charges.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    ■ John Ghetwood, for app’lt; George Bethune, for resp’t
   Daniels, J.

The verdict was recovered for charges advanced by the plaintiff, and for its own charges, in carrying cotton from Gainesville, in the state of Texas, to the city of New York, where it was delivered to the defendant.

The cotton at the time of its delivery was not wholly laden upon either of the defendant’s steamers, but was in part placed upon the wharf of the Inman Company, under its directions to await the departure of the steamer Egypt at a later day. While the cotton remained in that condition a fire took place, which destroyed it And the plaintiff, insisting that the defendant had become liable to refund its advances and charges for its own carriage of the cotton, brought this action to recover that amount, with interest.

The cotton was received and carried under a bill of lading entered into by the agent of what was known as the Erie & North Shore Dispatch, by which the freight for its carriage was made -divisible between the land carriers and the defendant. And in the course of its transit from Gainesville to Jersey City it passed over the lines of five or six different railway companies. But by the bill of lading, which was entered into under the concurring authority of each of the companies, including the defendant, it was provided that the Erie & ¡North Shore Dispatch, and its connections, should not be liable for a variety of injuries sustained by the cotton and enumerated in the bill of lading. And it was then added, “¡Nor for loss or damage on any article or property whatever by fire, or other casualty, while in transit, or while in deposit or places of transshipment, or at depots or landings at all points of delivery.’’ This constituted an agreement not only with the owner or final consignee of the cotton, but also between the different carriers, and the defendant was entitled to the benefit of this exemption between itself and the plaintiff in this controversy. The language is broad and general, including all liability of the Erie & ¡North Shore Dispatch, as well as its connections. The parties were at liberty to enter into this agreement as they did, and to exonerate each other as between themselves for liability from loss caused by fire and the other casualties referred to. ' And the contract in this manner made, including the defendant, as it did, Maghee v. Camden, etc., R. R. Co., 45 N. Y., 514; Manhattan, etc., Co., v. Camden, etc., Co. 54 id., 197, relieved it from liability to the plaintiff for the loss of its charges and advances by the occurrence of this fire.

It was not contended that any different agreement was at any time expressly entered into concerning the liability of the defendant to pay these charges at or after the time when this cotton was received by it. ¡Neither could such a contention have been fairly made. For by the receipt of January 22, 1883, given by the receiving clerk of the defendant for the cotton, it was stated to be subject to the conditions contained in the through bills of lading. And that continued and perpetuated the application of this stipulation for exonerating each of the carriers from liability for loss by fire.

To avoid this result and to subject the defendant to a legal liability for the freight and advanced charges, evidence was given for the purpose of establishing a usage or course of dealing between the land carriers and the steamship companies by which the company could be held liable upon an implied agreement for such charges and advances. And the witnesses whose testimony was taken upon the trial were mainly examined as to this fact. But the testimony of neither of them went so far as to indicate the existence of a usage or custom rendering the steamship company liable for the preceding freight and charges when the property was destroyed by fire upon the wharf and before it was laden on board one of the steamers. Each of the witnesses to whose attention this subject was brought disclaimed having any knowledge of an instance in which this liability had been previously asserted or was in fact conceded.

But the general import of the testimony was that after the produce was delivered to be placed on board the company’s steamer, and it was in fact so laden, that then a settlement would take place by which the steamship company would pay the advanced charges and the freight of the railway company carrying the produce to its point of final destination.

That was the uniform course of business or usage. And it was stated by one of the witnesses at least that this was followed to enable the steamship company to protect itself by insurance against liability for the loss of the property laden on board of its steamship. The right of the plaintiff to maintain this action was in no respect advanced or maintained by this character of proof, for it was entirely inapplicable to the case. The only evidence of usage, if it could have been obtained, would be such as to prove to the satisfaction of the jury that the steamship company became liable to refund the preceding freight and charges upon its receipt or acceptance of the property. But there was no evidence in this case tending in any direction to prove that to be the fact To render the defendant liable a contract, express or implied, was required to be shown. No express contract was claimed to have been at any time made. Neither could any implied contract to make the payment be inferred from proof of this course of business dealing. For it had no tendency whatever to prove that the steamship company became liable for the freight and charges previously incurred in the transportation of the property by its mere delivery upon the wharf. A liability might well be inferred to refund the amount after the goods had been received on board the ship, but the evidence warranted no inference of the existence of the liability relied upon in this action, for the reason that no course of dealing had ever taken place in this business from which it could be inferred that the company receiving the goods upon the wharf only for ocean transportation intended to, or did become liable for the preceding freight and advances. At the close of the proof on the part of the plaintiff, a motion was made for the dismissal of the action on the insufficiency of the evidence. But that was denied, and the defendant’s counsel excepted. At the close of all the evidence, the court was asked to direct a verdict for the defendant, which was likewise denied, and an exception taken to the denial. The case was then submitted to the jury for them to consider whether there was such a usage in this business as to prove the existence of a custom which would render the defendant liable to pay these charges and the plaintiff’s freight. There was no evidence upon which the jury could be left at liberty to make that inquiry.

The judgment and order should be reversed, and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J.

Concur. There was no competent evidence of any kind of a usage.


author: Van Brunt, P. J.

text:
    Patrick Martin, App’lt, v. Valentine Cook et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Negligence—Master and servant.
    Where a workman, familiar with the business, was burned by molten iron escaping from a ladle and there was no proof of negligence beyond the fact of the accident, Held, that he could not recover. It must be shown that the master knew or ought to have known of the defects which caused the accident.

      3. Same—Orders given by foreman.
    Upon the escape of molten iron from a ladle, defendants’ foreman attempted to pour the contents into another ladle. During this operation the band of the leaking ladle broke and plaintiff was burned. Held, that the action of the foreman was not manifestly improper and that he was not guilty of negligence.
    3. Trial—Dismissal of complaint for failure of proof.
    It is error to dismiss the complaint upon the merits where there is only a failure of proof.
    Motion for a new trial by plaintiff upon exceptions ordered to be heard in the first instance at general term. Appeal from an ■order dismissing complaint upon the merits.

      George M. Curtis, for app’lt; Lewis Sanders, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for injuries sustained by the plaintiff while in the employ of the defendants, which injuries were attributable to the negligence of the defendants.

The court dismissed the complaint because of alleged failure of proof of negligence. The plaintiff had been in the employ of the defendants for twelve or fifteen years prior to the accident, who were engaged in the foundry business, and upon the day in question he was employed in letting molten metal run from the furnace into a ladle which was swung on a crane and the metal was to be taken out to that part of the shop where it was wanted to be used by the molders. This duty the plaintiff had been accustomed to attend to every day from two to five times for several years.

Upon the day in question the ladle commenced to leak, and the plaintiff hollered to the foreman that the ladle was leaking, who hollered to the plaintiff to stop it. The plaintiff tried to stop it, but failed. He then took a shovel and went for some sand, to let the iron run out of the ladle; then the foreman directed the men to put in another ladle, and they did so, and he hollered to the plaintiff to get out of the way. By his direction the leaking ladle was hoisted up, and while it was being hoisted he directed the plaintiff to steady it. The plaintiff did so. The leaking ladle was then swung to the other ladle, and the iron commenced to be poured into the other ladle, and then the band upon the leaking ladle gave way and fell to the floor, and the plaintiff’s feet were burned with the molten metal.

■It further appeared 'that the ladle was made of hammered iron and lined with fire sand and loam sand to prevent the molten iron from melting the iron shell composing the ladle.

The plaintiff had lined this particular ladle twenty or thirty times or other ladles a great many times, but he did not line this ladle upon this particular occasion. It would seem that there must have been some defect in the lining of the ladle which permitted the molten iron to come in contact with and melt the iron composing the ladle. But it does not appear otherwise than by the happening of the accident in question that the ladle was in any way defective or out of order, nor is there any proof that the condition of the ladle could have been discovered by examination, nor even that it was defectively lined upon the last occasion, or that the person who did the work was incompetent for the service The sole proof of negligence was the happening of the accident

The rule is, if the injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defects or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own negligence or want of proper care; in other words, it must be shown that he either knew, or ought to have known, the defects which caused the injury. Personal negligence is the gist of the action. Wright v. N. Y. Central R. R. Co., 25 N. Y., 562, and cases there cited; Malone v. Hathaway, 64 id., 5.

In the case at/bar there was no proof that the ladle was defective except such as was afforded by the accident, nor that it had not been properly inspected, or that, if defective, such defect could have been discovered by inspection.

In fact, there was no evidence of personal negligence; such negligence must be proved. It is true that, in considering the evidence upon a dismissal of a complaint, that if any inference can be properly drawn from the evidence favorable to the plaintiff, such inference must be presumed to be established, although a jury might be at liberty to come to a different conclusion, but inferences cannot be drawn as to the existence of facts in respect to which there is no evidence.

In the case at bar, in the absence of proof of want of inspection, or that inspection would have discovered the imperfection, if any, negligence cannot be assumed. Dobbins v. Brown, 119 N. Y., 183; 28 N. Y. State Rep., 957. As has already been stated, the only proof of negligence was the happening of the accident. This is not enough. Dobbins v. Brown, supra.

The next question presented is whether the defendants are liable because of the action of the foreman. There is no evidence that his action was negligent; at most it was an error of judgment. He had no reason to suspect, as far as the evidence shows, that the ladle would fall. This was a result which nobody anticipated. There is no evidence that such a thing ever happened before, and it is evident that the plaintiff and the other worlcmen did not anticipate any such danger or result.

It does not appear that it was a manifestly improper thing to do, to attempt to put the metal into the other ladle, and if it was not, then the foreman -was not guilty of negligence in attempting to do so. We think that the error in the appellant’s case is the assumption that negligence is to be inferred because of the happening of the accident. As has been already stated, this is not the true rule in this class of cases, but some omission or commission of the employer or those standing in his shoes must be shown which contributed to the happening of the accident.

The exceptions to the exclusion of evidence do not seem to be well taken.

The fact that other persons had been injured at this foundry was immaterial unless it was shown that they were injured in the same way the plaintiff was, which was not attempted. It is true that the learned counsel for the plaintiff contends in his points that such would have been the tendency of the proof, but the case does not disclose that the proof was offered for any such purpose. The other questions ruled out to which exception was taken had been previously certified to.

The learned judge presiding at the trial made an order dismissing the complaint upon the merits. This, we think, was error. Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of the want of merit in the proof. It is only where a prima facie case is made out and proof offered to rebut it that the merits are involved.

The objection to the dismissal upon the merits should be sustained and the other exceptions overruled and the motion for a new trial denied, and the defendant should have judgment dismissing the complaint, with costs, except the costs of this motion for a new trial.

Daniels, J., concurs.


text:
    Samuel E. Howe, Resp’t, v. Thomas H. Moore, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Sale—Tender—When excused.
    Where one who has manufactured goods upon order is directed hy the purchaser to hold the goods until further orders and is subsequently informed hy the purchaser that he will not accept them, it is unnecessary for the vendor to make a tender.
    Appeal from judgment entered upon decision of court, the cause being tried by the court without a jury.

      John B. Whiting, for app’lt; Wm. Mc Michael, for resp’t.
   Van Brunt, P. J.

This action was brought to recover for goods alleged by the plaintiff to have been manufactured by him for the defendant pursuant to bis orders and which he has declined to receive. The action was tried by the court without a jury, and from a judgment entered upon a decision of the court in favor of the plaintiff this appeal is taken. The appellant claims that the undisputed evidence shows that the plaintiff never fully completed the goods, and was not ready to deliver them; that they were never tendered; that the order of the defendant was never complied with, and that the original agreement was superseded by a new agreement made nearly two years later.

The contract in question was entered into in the summer of 1882, by correspondence, and the parties did not meet until two years after, in the summer of 1884, so that unless their rights were affected by what took place between the parties in 1884, the facts are to be sought for almost entirely from the correspondence.

It appears that the plaintiff was the manufacturer of the woodwork for agricultural implements, having his manufactory and place of business at Logansport, Indiana, and that the defendant was a dealer in agricultural implements in the city of Hew York.

On the 27th of July, 1882, the defendant wrote the plaintiff as follows:

“ At prices and terms as last year you may enter our order for (here follows description of goods), say five car loads in all. You may ship same, say two car loads assorted in each, September and October, and ene car load in November; all the Kelly woods to be in last car. * * * Please let us hear from you by return mail.”

On July 29, 1882, the plaintiff acknowledged the receipt of defendant’s letter of July 27, and says : “ It is so late we fear we shall have trouble to get seasoned stock for your first shipment Will look around and advise you of result in a few days.”

On July 31st, the defendant answered, and among other things asked: “ If you cannot fill my order at times named, how near nan you come to it.” And on the 19th of August, 1882, the plaintiff wrote the defendant: “We have purchased sufficient dry lumber to make your stocks, and will endeavor to have them all in time.” The plaintiff commenced shipping, and after shipping two car loads prior to November 4,1882, on that day shipped- another car load, and shortly after, on the same day, received a letter from the defendant, dated November 2, 1882, as follows:

“ First car is all we have received to date. The car you speak of as having ready, please do not ship before December 1st. We are greatly crowded for room and want no more goods prior to the middle of December.”

On December 2d, the plaintiff having heard nothing further from the defendant, shipped the fourth car load, which the defendant refused to receive and on January 3, 1883, wrote as follows to the plaintiff: “Yours 28th ult., at hand. When the car of stock came to hand we simply had no room to take them in and so informed the R R Agt. We were surprised at you shipping them as we had advised you to hold until ordered forward.” The plaintiff then wrote that he had received no instructions to hold until ordered forward, but to hold until December 1st The plaintiff then received from defendant a letter dated February 28th- stating that be did not care for any more goods the present season. In reply the plaintiff stated that they had nearly one r that had been furnished for his order and awaiting shipment r several months past, and offered to store the goods for the deant.

January, 1884, the plaintiff wrote defendant in respect to ter, stating among other things that they had not on hand a t of the order, but that he had the material ready to out on short notice if needéd. Upon the trial the re that this statement in the letter was a mistake and it arose and that he had the goods ready for dealso appeared that pmjaaps some slight tirely completed. The claim -that the -goods in question were never completed is established by undisputed evidence is not only without'foundation, but there is ample evidence in the deposition of Cummings and Brant that they were finished. In any event the things to be done were trifling in amount and may not-have been entirely finished because the defendant had refused to-take the same.

The claim that the learned judge who tried the cause erred in. finding a -tender -of the goods is without foundation. The defendant was directed to hold the goods until further orders and was-subsequently informed by the defendant that he would not take-them. The plaintiff urged the defendant to take them, who refused. There was no necessity to make a formal tender, when there has been a refusal to receive.

As to the claim that it was error to refuse to find that the defendant gave no instructions as to the fifth or last car load until February 28,1883, it might be sufficient to say that the court was-not bound to find want of evidence, and this is all that the request called for, but in fact it was opposed to the facts proven by the correspondence as we understand it.

The claim that plaintiff did not comply with order in distribution of goods is evidently an after-thought. No such claim was made when goods were received.

The evidence of the plaintiff disposes of the idea that any new arrangement was made in the summer of 1884 and accords with the probabilities of the case.

There do not seem to be any errors calling for a reversal of the judgment, and it should be affirmed, with costs.

Daniels, J., concurs.


text:
    Bernhard Cohen et al., App’lts, v. Ezekiel Plonsky et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Fraudulent conveyance—Complaint.
    The complaint, in an action to set aside a conveyance of bills receivable by A. to P. as fraudulent, alleged that A. was insolvent; that he had transferred his property and confessed judgments; that by sales under such judgments all his property had been sold at a sacrifice, and that upc the above transfer by A. to P. the latter had made a profit which he h-shared with A. The complaint was dismissed. Held, error. That suming that the bills purchased by P. from A. was the purchase of i debt, there still remained a question of fraud which should have be mitted to the jury.
    Appeal from a judgment dismissing the complaint, o' fore the special term. f

      George M. Pinney, Jr., for app’lts; H. Warley Platz stiel & Hirsch, for resp’ts.

   429.58 made by the judgment debtor to the other defendant in the action. It was charged in the complaint that this assignment was made with intent to hinder, delay and defraud the creditors of the debtor. This was denied by the answers of the defendants.

When the trial was brought on a motion was made by the defendants to dismiss the complaint on the ground that no cause of action was therein alleged. And the justice presiding stated that he did not think that the complaint stated a cause of action. But as it was alleged that the assignment of the bills receivable was made and received with the intent to hinder, delay and defraud creditprs, this was probably a misapprehension of its effect. Billings v. Russell, 101 N. Y., 226. But the action was not disposed of on that motion. And the plaintiffs’ counsel then made a full statement of his case, and in compliance with his request he was allowed to amend his complaint, by stating in it what he expected to be able to prove. And that was that the debtor was insolvent to a large amount, that on the same day this assignment was made he made another for about §5,000 of accounts; that on the same day he executed another assignment of accounts amounting to about the sum of $1,800 to the firm of which the other defendant was a member, and confessed two judgments, amounting together to about $6,500. And two days before these assignments and confessions of judgments, he also executed to the partner of the other defendant, a second mortgage on his property, for the sum of $5,000.

Executions were issued on the confessed judgments, upon which there was collected the sum of a little over $2,500. By these assignments, and the sales under the executions, all the property of the debtor was disposed of, leaving unsatisfied judgments against him of upwards of $75,000. It was also proposed to be proved that the defendant Plonsky received the assignment to him, for a demand of $5,300, which he purchased against the debtor for $4,000. That he received on the bills assigned to him more than he paid for the demand against the debtor, which he bought, and that part of this profit was turned over to the debtor. The court considered these facts insufficient to maintain the action, and dismissed the complaint. It was held that no cause of action was shown against the defendants. And the plaintiffs’ counsel excepted to the decision.

The legal effect of what in this manner took place was that there was no question of fraud presented, or which could be inferred by the court from the case the counsel offered to prove. And that is the nature of the order entered, on which the judgment was recovered. If by any view of the proof offered tiie action could be maintained, then the dismissal was erroneous. The dismissal as it was ordered was the same as a nonsuit at the circuit, which cannot be sustained when the evidence presents a question of fact for the jury. It has that effect and no other when it becomes the subject of review upon an appeal. Scofield v. Hernandez, 47 N. Y., 313; Van Derlip v. Keyser, 68 id., 443; Rousseau v. Bleau, 8 N. Y. Supp., 823; 29 N. Y. State Rep., 334; Noyes v. Morris, 56 Hun, 501; 31 N. Y. State Rep., 608.

The question therefore arises whether the court could not infer from this offer of proof, even though the demand purchased by Plonsky was a valid debt, that the assignment was made of the bills payable by the debtor to him with the intent to hinder, delay and defraud the other creditors of the debtor, as that was sufficiently alleged in the complaint. It is not requisite that the proof offered should require that conclusion to be adopted, but the inquiry is whether that might not fairly be done.

The case disclosed is that of a person in business, who proves to be insolvent in nearly the sum of $90,000, at the same time and after mortgaging his property, transferring by -assignments his bills receivable, and accounts, to three different parties, and confessing two judgments, under the executions on which all his other property was sold, realizing but little over $1,500, and sharing with the assignee the profits realized by the assignment in controversy. It would probably do no violence to these facts unexplained to infer that the assignment of the bills receivable was both made and received with intent to defraud the creditors of the assignor. The facts carefully weighed and considered would sustain that conclusion. It is not necessary that they shall certainly require it to be drawn, but that they will sustain it by close and careful scrutiny as a fair and rational result. And as the proffered evidence was sufficient for that object, a dismissal of the complaint, without considering the effect which as a matter of fact could be given to the offered proof, was erroneous.

The question'arising does not depend upon chap. 503 of the Laws of 1887, forbidding preferences of more than one-third of the assets of an insolvent debtor. To. present a case under that act the other assignees and the plaintiffs in the confessed judgment should have been made parties, for without them the court would not be at liberty to consider and decide whether this act had been violated. That was not the plaintiff’s case, but it was that the assignment of the bills payable was fraudulent, and that is all there was of the plaintiffs’ action. Upon that they were entitled to have their proofs received and deliberated upon by the court to ascertain whether this alleged fraud had been maintained. That was not done. And the judgment should be reversed and a new trial ordered, with costs to the plaintiffs to abide the result.

Van Brunt, P. J., and Lawrence, J., concur.


author: Daniels, J.

text:
    Ferdinand Brooks, Pl’ff, v. John T. Terry et al., Ex’rs, Def’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. "Will—Trust by implication.
    A testator gave his wife the use, interest, income and profit of all his estate, real and personal, while she remained his _ widow, and then appointed his wife and her brother “trustees of the said legacy to my wife.” He directed the trustees “ to loan the same on bond and mortgage,” and to pay over to his wife the net income. He gave his trustees power of • sale, and directed that the provisions for the wife_ be in lieu of dower. Held, that, by implication, a trust in favor of the wife was created in both the real and personal estate.

      3. Executors and administrators—Trustees—Deed.
    Where, under the above will and the power of sale therein contained, the real estate of the testator is conveyed, the conveyance should he by the executors in their capacity of trustees, and not otherwise.
    Case agreed" upon and submitted under § 1279 of the Code of Civil Procedure.

      Townsend & Mahan, for pl’ff; Edmund R. Terry, for def’ts.
   Daniels, J.

The defendants, as executor and executrix of the estate of Edmund Terry, deceased, entered into an agreement with the plaintiff to sell and convey to him a parcel of land situated on the westerly side of Ninth avenue, near Fortieth street, in the city of New York. The land was part of the estate of the testator, and at the time finally appointed for the completion of the agreement they tendered a deed to him for the conveyance of the land, which was executed by them only as executors. The deed was declined by the plaintiff, and this case has been submitted to obtain the determination of this court upon the point whether it was sufficient to convey the title to him.

After directing the payment of the testator’s debts, he gave and bequeathed to his wife “ the use, interest, income and profit of and from all of my real and personal estate, of every name and nature whatsoever and wheresoever situated, which I may have or of which I may be possessed at the time of my decease, so long as she shall continue to be my widow, to be appropriated by her to her support and the maintenance and education of my children, and upon her marriage or death, whichever shall first happen, all said property is to go to my children as herein provided, and I hereby constitute and appoint my wife Anna and my brother, John T. Terry, trustees of the said legacy to my said wife, and they are hereby instructed to loan the same on bond and mortgage upon real estate of at least double the value of the amount loaned, or invest in securities regarded as equally safe, but in no case in speculative securities, so-called or considered, or to let the same remain invested as they find the same at the time of my decease, if they shall think best so to do, and pay over to her, my said wife, the net income after deducting charges and incidental expenses, and I give my said trustees joint power to sell or dispose of any or all of said real or personal property at public or private sale at such time or times and upon such terms and in such manner as to them shall seem meet. This provision for my said wife to be in lieu of dower.”

And it is upon the construction which this paragraph should receive that the disposition of the controversy must depend. A trust in favor of the widow for the benefit of herself and the children was not expressly created by it, but that was not necessary, for if, by clear implication, the intention to provide a trust for her and their benefit has been disclosed, that will be sufficient to maintain it. Morse v. Morse, 85 N. Y., 53 ; Toronto Trust Co. v. Chicago, etc., R. R. Co., 123 id., 37; 33 N. Y. State Rep., 78. And that such an intention has been embodied in this part of the will is supported by the directions contained in it. For while the testator has given to his widow the use, interest, income and profit of his estate during her life, or as long as she shall remain his widow, he has directed that to be provided through the intervention of the trustees of his estate. They have been appointed trustees- of the beneficial interest given to her, and which he has denominated her legacy. And to secure to her the income, they have been directed to loan the money of the estate upon bond and mortgage, and to pay over to her the income, after deducting the charges-and incidental, expenses. And to promote that end, power has been given to them to sell and dispose of any, or all, of his real estate. It is not to be disguised that his will has been awkwardly framed in this respect. But what he seems to have intended was that his widow should have- the income and proceeds of his estate for these objects, after deducting the charges and expenses of its management, and this- income and proceeds are what he intended should be understood as her legacy. And of that the executors were appointed trustees, with, directions to pay the amount realized to her. It is true that he has not by apt word's included the proceeds of the real estate in this- direction, but as its use, as well as the income, interest and profit, have all been included in the words “ said legacy)” it is to be fairly inferred that, he designed that it should be brought under the management of the trustees, substantially in the same manner as the- funds, they have been directed, to loan. And this is further confirmed by the power of sale, which, has- been delegated alone to the truste.es-of this legacy. And all the directions intended for their observance are consistent with no other construction-than that he intended to create a trust for the benefit of his widow and children, through which the. interest, income and profits of the estate should be received by the executors as trustees, and paid over to her, after deducting the expenses and charges incurred in its management, and that the power of sale was given to advance that object. This certainly was the intention as to the funds which were to be loaned on bond and mortgage, and power was given to convert the real estate into money, and loan it out in the same manner.

There was no direction for any separation of the real from the personal estate in the management. But the intention to vest all alike in the trustees is evinced by declaring them trustees of her legacy, which included the use, interest, income and profit of the estate as an entirety. It was all in this manner brought under their control, and equally for her and their benefit. And that benefit could be no otherwise effectually secured than to devote to her this income of all the testator’s property. And that this complete degree of control was intended appears further from the next paragraph of the will directing that:

“ Notwithstanding the above provisions, it is my will that my said trustees may and they are hereby directed and ordered to make a payment of not exceeding five thousand ($5,000) dollars to either of my said children by way of advancement if at any time it shall be the opinion of my said wife that the well being or interest of either of. my said children shall require it, and the amount of such payment with interest from the time of payment shall be charged to such child or children in the final distribution of my estate, to take place on the marriage or death of said wife, as herein provided.”

But however the conclusion may be regarded that a trust in the entire estate was created, there can be no room for doubt that this trust did exist over the funds to be loaned on bond and mortgage. And the executors were made trustees over that part of the property. And it was in their capacity of trustees that they were empowered to sell the real estate and convert it into money. And that, under the language of the statute, as the authorities have construed it, was a valid power of sale. This was fully conceded in Chamberlain v. Taylor, 105 N. Y., 185, 192; 7 N. Y. State Rep., 517. What that case has decided is that such a power was not a trust, as express trusts have been declared and provided, but that it was a power in trust. And the reason why the plaintiffs in that action could not maintain it was that they ■did not become vested with the title of the land in question, for the sole reason that no other than a power had been created, upon the effect of which unexecuted an action of ejectment could not be maintained. That the power could be lawfully exercised was not denied, but on the contrary it was assumed that it could be, and the provisions defining powers have certainly provided that it could be done.

But whether there was a trust lawfully extended over the real estate, or whether it was confined to the funds of the estate, the result must be the same, for the power was delegated to the executors as trustees, and not otherwise. And to lawfully execute it they were required to act in that capacity. They did not so .act, but executed the deed intended to convey the title to the plaintiff only as executors. That was inoperative and was not aided by the additional deed executed by the widow, whose sole •object was to release any claim she might be at liberty to assert ;as doweress.

The plaintiff was not bound by the contract with him to accept these deeds ; what he was entitled to was a deed conveying" the title to the land, and that deed was riot offered to him by the defendants. Judgment should, therefore, be pronounced in his favor, that the defendants as trustees convey this land to him, ■or in default thereof pay him the sum of $500 received by them from him, with the interest thereon, and the expenses incurred in the examination of the title, and also pay to him the costs of this proceeding.

Van Brent, P. J., concurs.


text:
    Edward L. Merrifield, App’lt, v. Ezekiel Y. Bell, Assignee, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    •Judgment—Action to set aside—What plaintiff must show.
    Where an action is brought in equity to set aside a judgment duly obtained against the plaintiff in a court of law after a trial, in which he had an opportunity to present any defense lie might have, such plaintiff must show with reasonable certainty that, without any fault of "his own, by fraud, accident or the wrongful act of the other party, he was deprived of such defense; that diligence upon his part would not have m de him acquainted with the facts out of which such defense arose, and that for this, reason he did not set up such facts and defense in the action at law.
    Appeal from judgment dismissing complaint after trial before' the court without jury.

      John E. Parsons, for app’lt; F. R. Coudert, for resp’t.
   Van Brunt, P. J.

Prior to April 10, 1871, the plaintiff was the special partner in the firm of Merrifield & McDowell doing ■business in the city of New York, of which firm the general partners were Silas Merrifield, the brother of the plaintiff, and one William 0. McDowell.

On the 5th of February, 1871, John H. Do Bevoise made his certain bond and mortgage to John De Bevoise to secure the payment of $15,000 and interest, who on the 17th of February, 1871, assigned the same to the said firm of Merrifield & McDowell as security for an indebtedness of the said John De Bevoise to said firm. On the 28th of February, 1871, the firm of Merrifield &. McDowell assigned the said bond and mortgage, with $10,000 of the indebtedness owing to them by said John De Bevoise, to the plaintiff, who by agreement dated March, 1871, covenanted to reassign when his liability as endorser of the notes and commercial paper of Merrifield & McDowell and all other liabilities of himself as a member of the firm or incurred by reason of such endorsement should be extinguished and the amount of his interest in the firm should be paid. On the 10th of April, 1871, the firm of Merrifield & McDowell terminated and the plaintiff withdrew from the partnership the sum of $8,900, being $5,000 the special capital contributed by him, and $3,900 profits assumed to have been due to him

At this time the said firm of Merrifield & McDowell was indebted to the firm of Lawrence & Sons in the sum of $14,666.73.

In September, 1871, the plaintiff reassigned the said bond and mortgage to Merrifield & McDowell together with the said $10,-000 of indebtedness due to them from John De Bevoise. On the-same day Silas Merrifield, one of the general partners of Merrifield & McDowell, assigned to McDowell, the other general partner, for a nominal consideration of one dollar, all his right, title, interest and estate of, in and to the said bond and mortgage.. Upon the next day the said McDowell assigned the said bond and mortgage to one Samuel Lawrence, who in the transaction acted for the firm of Lawrence & Sons. No present consideration was paid for the assignment of said bond and mortgage ; and the same was received by Lawrence & Sons, under an agreement with McDowell that said McDowell individually and the firms of which he was a member subsequent to-that of Merrifield & McDowell were to be credited with the proceeds of such mortgage against any sums of money in which they might be indebted to said firm of Lawrence & Sons. This bond and mortgage were foerclosed in the name of Samuel Lawrence in November, 1873, and over $16,000 cash was received thereon by Lawrence & Sons, and retained and applied by them to the individual indebtedness of McDowell and the indebtedness of the subsequent firms of which he was a member.

It was also found as a fact upon the trial that if the amount realized upon said bond and mortgage by Lawrence & Sons had been applied on account of the indebtedness to them of Merrifield & McDowell it would have paid such indebtedness.

In the year 1874 the firm of Lawrence & Sons commenced an action in the superior court of this city against the plaintiff and his two partners, Silas Merrifield and William 0. McDowell, as copartners, doing business under the firm name of Merrifield & McDowell to recover the said indebtedness alleged to be due from said firm of Merrifield & McDowell to Lawrence & Sons. The plaintiff herein defended said action upon the ground that he was a special partner, and also upon the ground that at or about the time of the dissolution of the firm of Merrifield & McDowell, and before the commencement of the action, the firm of De Bevoise, McDowell & Co., for a good and reasonable consideration, assumed and agreed to pay all the debts of the firm of Merrifield & McDowell, and were accepted and substituted by said firm of Lawrence & Sons as their debtors in lieu and place of said firm of Merrifield & McDowell for all demands held by the said Lawrence & Sons against Merrifield & McDowell; and that said De Bevoise, McDowell & Co. made and delivered their promissory notes for the demand of said firm of Lawrence & Sons, and that said firm of Lawrence & Sons accepted said notes in payment and satisfaction of said demand.

Upon the trial of said issues the plaintiff was present and heard Seabury Lawrence testify, amongst other things, in respect to the application by Lawrence & Sons of the proceeds of said bond and mortgage. The jury found that it was not understood or agreed by said Lawrence & Sons that the delivery to and acceptance by them of the notes of DeBevoise, McDowell & Co. should operate as a satisfaction and extinguishment of their claim against Merrifield & McDowell upon the notes and accounts upon which said action had been brought, and rendered a verdict against all the defendants. Exceptions having been directed to be heard in the first instance at the general term, upon a motion for a new trial the verdict against the plaintiff was set aside and judgment was entered upon such indebtedness against the other two defendants in February, 1877. The court of appeals affirmed this reversal, the judgment against the general partners remaining undisputed. Execution was issued thereon against Silas Merrifield and William 0. McDowell, the general partners, which execution was returned unsatisfied.

Subsequently Lawrence & Sons commenced an action in this court in the nature of a creditor’s bill founded upon the said judgment to recover the $8,900 alleged to have been withdrawn by the plaintiff from Merrifield & McDowell while that firm was insolvent. Issue having been joined in this action, before its trial the firm of Lawrence & Sons failed and the defendant was appointed their assignee in bankruptcy, and in Rovember, 1883, a judgment was entered in favor of the defendant against the plaintiff. This judgment was affirmed by the general term and by the court of appeals. Execution having been issued upon said judgment after its affirmance by the court of appeals, this action was commenced to vacate said judgment obtained by the defendant as assignee and to have it determined that there was no indebtedness by Merrifield & McDowell to Lawrence & Sons upon which to found the recovery against the plaintiff.

The ground upon which the plaintiff brought this action is, that just prior to the commencement thereof and subsequent to the decision of the court of appeals in the action brought in this court, the plaintiff had learned that among the assets of Merrifield & McDowell was the said mortgage for $15,000, and that the interest of Silas Merrifield in that mortgage was assigned to McDowell,, and by the latter the mortgage was assigned to Lawrence & Sons, in pursuance of a corrupt and fraudulent agreement that no credit should be- given by Lawrence & Sons for the mortgage or for the amount received upon it in order that there might be an apparent indebtedness by Merrifield &■ McDowell to Lawrence & Sons, so that the plaintiff might be compelled to pay to- Lawrence & Sons for McDowell the sum of $8,900* received by him as aforesaid when it" was not due at all to Lawrence &. Sons, and there was no liability for it on the part of the plaintiff to said" McDowell. Upon the trial of this action, judgment was rendered dismissing-the plaintiff’s complaint, and from such judgment this appeal is taken.

It will thus be seen- that this action is brought in equity to set aside a judgment duly obtained in this court after atrial in which the present plaintiff had an opportunity to present any defense which he might have;

It is- the rule, which should not be departed from, in cases of this description, that the party should show, with reasonable certainty, that without any fault of his own, by fraud, by accident, by the wrongful- act of the other party, he has- been deprived of his defense; and that the use of diligence on his part would not-have made him acquainted with the facts out-of which it arose so that it might have been interposed in the action the judgment in which it is sought to set aside.

As is said in the case of Vilas & Bacon v. Jones & Piercy, 1 N. Y., 281, when a party goes into chancery after a trial at law, he must be able to impeach the justice and equity of the verdict-, and-it must be upon grounds which either could not be made available to him at law, or which he was prevented from setting up by fraud, accident, or the wrongful act of the other party, without any negligence or other fault on his part.

And the question presented on this appeal is whether the proofs- offered by the plaintiff bring him within the rule.

It is true that he alleges and claims to have established upon this trial that he discovered the facts upon which he now rests his cause of action subsequent to the trial of the action and to the affirmance of the judgment by the court of appeals, and that such judgment was procured through the fraudulent agreement entered into between his former partner, McDowell, and Lawrence & Sons.

If this had been the fact, if the plaintiff had no means of knowing of the fraudulent application of the assets of the firm of Merrifield & McDowell, through an arrangement between McDowell and Lawrence, and he had discovered that fact after Lawrence & Sons, or their assignees, had obtained a judgment against him as creditors of the firm of Merrifield & McDowell, when in fact they had in their possession assets which they were bound to apply on account of such indebtedness, and which would have extinguished the same, it is probable that a cause of action would have been made out.

But although we may not agree with the learned judge who tried this action below in respect to some of the deductions which he drew from the evidence, there is one fact which is uncontested which is fatal to the plaintiff’s right to recover.

It is not true that he did not discover the misapplication of the proceeds of this bond and mortgage to debts other than those owed by Merrifield & McDowell to Lawrence & Sons until after the affirmance of the judgment of this court by the court of appeals.

It appears from the record in this case that he was present in the superior court when the suit in that court was being tried, and heard one of the Lawrences swear how they had applied the proceeds of this mortgage, which they had then collected, under the direction of McDowell

The plaintiff at that time knew that that mortgage had been assets in the hands of Merrifield & McDowell He knew that such assets had been assigned to him as collateral security for the indebtedness of that firm to him. He knew that he reassigned it to the firm; and it transpired during the course of that trial that all that Silas Merrifield had assigned to McDowell was his right, title and interest in that mortgage, which was nothing except that which might remain to him after the payment of the debts of Merrifield & McDowell; and that McDowell had assigned the mortgage to Lawrence & Sons, who had collected the same and applied the proceeds upon indebtedness other than that due from Merrifield & McDowell, namely indebtedness due from a succeeding firm to Lawrence & Sons, and the individual indebtedness of McDowell to said latter firm. He then was in possession of every fact necessary to defeat the action brought against him in the supreme court upon the basis of the judgment which had been obtained in the superior court He knew then that this bond and mortgage were assets of Merrifield & McDowell; he knew that McDowell had applied them to his individual uses, and he has not discovered anything else since.

The attention of the plaintiff’s counsel seems to have been exclusively engrossed with the defense that Lawrence & Sons had accepted the firm of De Bevoise & Co. as their debtors in the place of Merrifield & McDowell, and thus released the latter firm. It may be true that the learned judge below gave too much importance to the knowledge of the attorney of the plaintiff in respect to the proceedings in the former litigations. It may be true that Lawrence & Sons took the bond and mortgage with notice of the fact that they were assets of the firm of Merrifield & McDowell, and that McDowell had no right to appropriate it to his individual uses. But it is equally true that at the time of the trial of the first suit in the supreme court in which the plaintiff was charged with the $8,900 withdrawn from the firm he was as well aware of those facts as anybody else. He knew of his own knowledge that this bond and mortgage belonged to Merrifield & McDowell, and he had heard one of the Lawrences, as already stated, testify in the superior court as to what they had done with the proceeds.

We may agree with all the propositions advanced by the learned counsel for the plaintiff in respect to the rights of Merrifield & McDowell and Lawrence & Sons as far as the application of the proceeds of this bond and mortgage is concerned and we may concede that there was a misapplication of those proceeds. But the difficulty with the plaintiff’s case is that he was bound to set this up when he was sought to be charged with the indebtedness. He knew the facts, he, must have known the facts from the very nature of the case, and it is idle to say that he has just discovered them.

It is entirely immaterial what may have been the arrangement between McDowell and Lawrence & Sons by which this result was reached. The plaintiff knew that assets of Merrifield & McDowell had been disposed of by Lawrence & Sons for purposes other than the payment of the copartnership debts; and this knowledge was all that was necessary for the plaintiff to have when Lawrence & Sons were seeking to charge him in order to have defeated that claim if he had made the proper defense thereto.

The plaintiff may not have been properly advised of his rights, but that affords no ground for the setting aside of judgments duly obtained.

While not agreeing with the learned judge below in many of his conclusions of law and findings of fact, as above stated, yet still upon the findings which are established without contest we do not see how the plaintiff can maintain this action.

The judgment should be affirmed, with costs.

Daniels, J., concurs.


author: Per Curiam.

text:
    Richard Lathers, App’lt, v. Jacob H. Hunt, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Chattel mortgage—Possession of mortgaged chattels by mortgagee DOES NOT SATISFY MORTGAGE DEBT.
    Where a tenant has given a mortgage on his household furniture _ to secure the rent, and afterwards removes from the premises, abandoning the furniture, which the landlord takes possession of and stores, Held, that in the absence of proof of a conversion, this does not operate as a satisfaction of the mortgage debt.

      Appeal from judgment for defendant in the eleventh district court. •
    Action for rent of certain premises demised to defendant. Defendant had given a chattel mortgage to plaintiff to secure payment of the rent, and thereafter removed from the premises, abandoning the furniture, which plaintiff took possession of and stored in one of the rooms. In this action defendant claimed to have been discharged from liability by these facts, and counterclaimed for damages by reason of such taking and use. The facts fully appear in the former report of the case in 32 1ST. Y. State • Rep., 691.

      Fernando Solinger, for resp’t; Joseph Wamsley, for app’lt.
   Per Curiam.

Twice has this case been here on appeals by the defendant-; and it is again before us on substantially the same state of facts. On the former occasions the law of the case was clearly and fully propounded for the guidance of the court below, by Bischoff and Daly, JJ., 9 N. Y. Supp., 494 ; 30 N. Y. State Rep., 432, and by Bookstaver, J., 10 N. Y. Supp., 529; 32 N. Y. State Rep., 691. At the trial under review the only development, if any, to vary the case was evidence of alleged injury to the furniture ; but we are of opinion that such evidence was insufficient in law to fix the plaintiff with liability.

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

Daly, Oh. J., Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Simon Strauss, Resp’t, v. William L. Hamersley, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Negligence—Liability of landlord for damages to adjoining PREMISES CAUSED BY DEFECTIVE PLUMBING.
    The owner of premises which are in the possession of a tenant is not liable for injuries to adjoining premises caused by the defective condition of the plumbing, in the absence of proof that the premises were in a defective condition when let or that he omitted to make necessary repairs or failed to perform some duty imposed on him by statute with respect to the premises.
    3. Same—Lease—Insolvency of tenant.
    Proof that the tenant had failed or was insolvent does not necessarily show that his estate in the premises has become determined.
    Appeal from judgment of the fourth district court in favor of plaintiff in an action to recover damages for injuries to plaintiff’s premises, caused by the want of repair of the plumbing work on the adjoining premises owned by defendant.

      C. L. Cohn, for resp’t; W. E. Gilhooly, for app’lt.
   Bischoff, J.

In an action against the owner of premises to recover damages for injuries accruing from the defective condition thereof, where such premises at the time when the injuries were sustained are shown to have been in the possession or control of a tenant or lessee of the owner, the presumption is that the defective condition was the result of negligence on the part of such tenant, lessee or occupant, Kastor v. Newhouse, 4 E. D. Smith, 20; Edwards v. N. Y. & H. R. R. Co., 98 N. Y., 245, 251; and to overcome this presumption the person seeking to charge the owner must affirmatively show that the want of proper repair resulted from his negligent omission.

But to charge the owner with sufficient neglect, it must appear that the premises were in an unsafe or dilapidated condition when he let them, or that he relet the same after they had become unsafe and in want of repair, or that, contrary to his covenant, so to-do, he omitted to make the necessary repairs, Clancy v. Byrne, 56 N. Y., 129, 135; O'Brien v. Greenbaum, 23 N. Y. State Rep., 405, 407, or that he failed with respect to the premises to perform some duty imposed upon him by statute. Wood’s Landlord and Tenant, p. 618, par. 384; Taylor’s Landlord and Tenant, p. 123, par. 175.

Bearing the above in mind, we fail to perceive, in the case at bar, any facts wich would justify recovery against the defendant.

The evidence shows that plaintiff and defendant were the owners of adjoining premises and that the plaintiff’s premises were flooded by a leakage of water from the cellar of defendant’s premises ; that the store-floor and cellar of defendant’s premises were at the time in the possession or control of one McIntosh under a subsisting lease made by the defendant to him. It does .not ap- . pear that any part of the premises so demised remained under the control of the defendant or that the defendant agreed to keep the demised premises in repair.

No evidence whatever was offered from which it could be inferred that the defendant’s premises were in a defective condition-when the same were let to McIntosh, and the evidence of the defendant to the effect that the premises were in á-sufficient state of repair' when they were let to McIntosh, and that the latter during the term for which they were demised covenanted to do all needful repairs, remained wholly unchallenged by the plaintiff.

It is true that the plaintiff attemptedto show that the lease to McIntosh was no longer -in force, but the only evidence offered in that behalf was the plaintiff’s statement that McIntosh had failed, but it did not follow that because of McIntosh’s insolvency his estate in the defendant’s premises had become determined"; and the defendant’s uncontroverted statement that the rent for the demised premises had been paid to him up to a- time long subsequent to the time of the happening of the injury to plaintiff’s premises -leads to the conclusion that the lease was then in full force and effect.

Counsel for respondent, in his brief on this appeal, calls our attention to the fact that the lease in evidence refers only to the store and basement, and that inasmuch as the leakage complained of is alleged to have occurred in the cellar of defendant’s premises, and it not appearing that the cellar was demised to McIntosh or some other person, it must be presumed to have been in the possession or control of the defendant. The record of the proceedings at the trial, however, shows that the terms “ basement ” and “cellar ” were applied to one and the same part of the premises demised to McIntosh, and we cannot, therefore, in justice to the defendant, for the purpose of this appeal, assume that the “ cellar" referred to premises other than those included in the lease.

The judgment should be reversed and a new trial ordered, with costs to abide the event

Daly, Ch. J., and Pryor, J., concur.


author: Daly, Ch. J.

text:
    John N. Wyckoff et al., Resp’ts, v. Lemuel Wilson, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Appeal—Leave to eo to court oe appeals.
    In an action on a promissory note, brought by the payees against the endorser, where the evidence was conflicting as to whether defendant endorsed to enable the maker to obtain credit with plaintiffs, the court charged that if plaintiffs took the note in reliance on his endorsement he was liable, and that if the jury believed plaintiff’s testimony plaintiffs were entitled to a verdict. Held, that the case, for this error, required a reversal, and that leave to appeal to the court of appeals should, therefore, be denied.
    Motion for leave to appeal to the court of appeals.

      Benjamin Estes, for motion; Charles E. Wilson, opposed.
   Daly, Ch. J.

It is probable that if I had taken part in the decision of this appeal, I would have expressed the opinion that the evidence in the case supported the plaintiffs’ allegation that the endorser Wilson, who is sued here with Middlebrook, the maker of the note, made his endorsement for the purpose of giving Middlebrook credit with the plaintiffs. When the note was brought to him by Middlebrook to endorse, he saw that it was payable to the plaintiffs and was not yet endorsed by them. He admits that he endorsed for Middlebrook’s accommodation and to enable him to obtain credit with some one, but insinuates that he supposed the plaintiffs were also to be accommodation endorsers with him. The falsity of this suggestion, and of his denial that he knew that the note with his endorsement was to be given to the plaintiffs by Middlebrook, is apparent from the fact that he-had, two weeks before, written a letter to plaintiffs recommending Middlebrook, who was then negotiating for the purchase of plaintiffs’ business. He swears that he did not know of such negotiations until afterwards; but the jury might consider the probability as to whether he did or not. Middlebrook was an old friend of his; when he wrote the letter of recommendation for him to the plaintiffs he “ supposed he was going there in employment,” but afterwards says, “I thought he was going to change his business. I did not know he was going out of business.” Two Weeks afterwards Middleboolc appears with a note for $200 drawn to plaintiffs’ order and asks him to endorse it, and never stated the object for which he wished his endorsement. It would be difficult to find a jury to credit such a statement. But. what is to be said of it when he goes on to swear that he had a distinct understanding with Middlebrook that he was to be “a second endorser?” And yet it appears that after the note was protested and the plaintiff J. N. Wyckoff told him they would look to him for payment, he did not mention this understanding nor deny his liability, but only said that he had directions from Middlebrook not to pay it Upon all the evidence it was a question for the jury.

But the general term of this court could not do otherwise than reverse the judgment and order a new trial for wrong instructions to the jury. The trial court charged that if plaintiffs took the note in reliance on Wilson’s endorsement, he was liable; and that if the jury believed the testimony of plaintiff Wyckoff, the plaintiff was entitled to a verdict. The defendants duly excepted. The jury should have been instructed that the question for them to determine was whether' Wilson endorsed the note for the purpose of procuring for the maker a credit with the plaintiffs and whether the plaintiffs took the note in payment of part of the purchase-price of property sold to Middlebrook after and in consideration of such endorsement. If they found in the affirmative, plaintiffs would be entitled to a verdict; otherwise not.

The case requiring the judgment rendered by our general term, the motion for leave to appeal to the court of appeals must be denied, with ten dollars costs.

Pryor, J., concurs.


author: Daly, Ch. J. Per Curiam.

text:
    James McVity, Resp’t, v. Daniel N. Stanton, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Depositions—Testimony of party—Code Civ. Pro., § 872.
    The provision of § 872, subd. 5, of the Code, that such subdivision shall not apply to a case where the person to be examined is a party to the action, does not apply to and is not prohibitive of the taking of the deposition of a party at his own instance.
    2. Same.
    Proof that a- party is employed as a traveling salesman, and that his business requires him to be out of the state for many months at a time, and that he is about to leave the state for that purpose, is sufficient to authorize an order to take his testimony de bene esse, under § 870, at his own instance.
    Appeal from an order at special term, denying a motion by defendant to vacate an order at the instance of the plaintiff for his own examination before trial as a party to the action. The affidavit, upon which the order of examination issued, states that the testimony of the plaintiff is material and necessary to him; that he is about to leave the state to engage in traveling in the west and other places as a commercial salesman, and does not expect to return until the month of July, when he expects to be in the city for a few days, and then to resume for six mouths or more his said business outside of the state of New York, and that he believes he will be unable to attend the trial of the action.
   The following is the opinion at special term:

Daly, Ch. J.

When the Code of Civil Procedure was originally enacted in 1877 it contained no provision for taking a deposition of a party to an action at his own instance before the trial. Section 870 provided that the deposition of a party to an action might be taken at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial; § 871 provided for the deposition of a person not a party, and § 872 in making general provision for such examination and specifying the requirements of the affidavit upon which the application was based, declared that when the person to be examined was a party to the action, it should not be necessary to show that he was about to depart from the state, or was so sick or infirm as to afford reasonable ground to believe that he would not be able to attend the trial. The object of this provision was perfectly plain: An adversary or co-plaintiff or co-defendant might be compelled to submit to an examination at any time before the trial, and it was not necessary to show any of the special circumstances required to procure the ordinary deposition of a witness de bene esse. As no provision of law then existed for a party having his own deposition taken, the provision of subd. 5 above quoted, could in no respect apply to any such application. The following year, 1878, the Code, § 870, was amended by providing that a deposition of a party to an action might be taken at his own instance at any time before the trial. No change in subd. 5 of § 872 was made. But the intention of the legislature in the latter enactment being perfectly plain and apparent, and not applicable when it was passed to the examination of a party at his own instance, it would be a strained construction to hold that it was intended to apply to such a case when subsequently authorized by the legislature; for it would prohibit the examination of the party in the very cases in which such examination would ordinarily be of any practical use to him.

It is not easy to conceive of any circumstances under which a party to an action would desire to have his deposition taken before trial except that on account of absence from the state or illness it was apprehensive that he would not be able to offer himself as a witness on his own behalf at the trial. At all events, those would be the circumstances under which this application would in most instances be made, and as there is clear evidence that the intention of the legislature in enacting subd. 5 of § 872 was to confine its application to other cases, we are justified in holding that this case is not within it

Preston v. Hencken, 9 Abb. N. C., 68, Supr. Ct, and Williams v. Folsom, 3 N. Y. Supp., 681, Supreme Ct., are in conflict with this ' view. In the former case the opinion does not disclose that the history of the amendment to § 870 was considered. The latter case followed the former as controlling. But for the reasons I have stated, I think that the ruling in Briggs v. Taylor, 4 Civ. Pro., 328, should be adhered to, if we would give the party to an action the benefit which the legislature by the amendment of 1878 evidently intended that he should have.

It is, of course, not required that in every case where a party to an action shows an intention to leave the state and urges the probability that he may not be present at the trial, that the court should grant his application for the taking of his own deposition de lene esse. It must be shown that he is compelled by circumstances over which he has no control to absent himself from the jurisdiction, and that the application is made in good faith. It is in the discretion of the court to grant or refuse the taking of the deposition. Jenkins v. Putnam, 106 N. Y., 272; 8 N. Y. State Rep., 710. In the present case, as I understand from the affidavit of the' plaintiff, his business is that of a commercial traveler or traveling salesman, and requires him to be out of the state for many months at a time. His employer, a manufacturing corporation, doing business at Cincinnati, Ohio. The plaintiff therefore being an employee, and his time not being his own, it may not be possible for him consistently with his duties to his employer to be present in this state when his cause is called for trial. Under the cir-, cumstances it might involve considerable loss to him if he were not permitted to have his deposition taken to provide against, such an emergency.

James B. Dill, for app’lt; William B. Abbott, for resp’t.

The motion to vacate the order for examination will be denied, but without costs; and as the defendant asks for an opportunity to have the law settled by the general term in view of the difference between the special terms on this question, a stay should be granted until an appeal can be heard ; it being probable, as I understand the position of the case on the calendar, that the trial will not be had before the appeal is determined.

Per Curiam.

Upon careful consideration of the opinions in Preston v. Hencken, 9 Abb. N. C., 68, and in Williams v. Folsom, 3 N. Y. Supp., 681; 5 id., 211; 22 N. Y. State Rep., 507, we are clear that the reasoning of the learned chief judge in the decision appealed from proceeds upon the more solid grounds and conducts, to the more consistent and satisfactory conclusion.

Accordingly, the order • is affirmed on the opinion at special term.

Order affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.