text:
    Julia Morris, Resp’t, v. John Morris et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Fraudulent conveyance—Evidence.
    In an action to set aside a conveyance as fraudulent it appeared that the plaintiff's judgment was recovered for breach of a contract to support her in consideration of a transfer of personal property. Held, that it was error to refuse to admit evidence tending to show that plaintiff took away some or all of the personal property so assigned; that it was worth more than the amount of her judgment, and that the sheriff was told to levy on the property in the possession of plaintiff.
    Appeal from judgment in favor of plaintiff and from order appointing a' receiver.

      Action to set aside a conveyance made by defendant as fraudulent and void as to the plaintiff.

      Garrett Z. Snider, for app’lts ; Arthur S. Tompkins, for resp’t.
   Barnard, P. J.

The plaintiff made an agreement with her son, the defendant John Morris, that in consideration of a transfer of personal property to the son by the mother, that he, the son, would support the mother and her husband on his farm. The son broke the contract and the plaintiff obtained a judgment against him for damages and .costs, $252.06, on the 6th of October, 1890. An execution was returned unsatisfied and the plaintiff by this action seeks to set aside a transfer of his farm made the 20th of September, 1890, but not recorded until after the trial of the action for breach of contract. The defendant John Morris transferred to his mother-in-law, the defendant, Mrs. Orowe. An express agreement was shown that the transfer was made to prevent the plaintiff from collecting her judgment. The consideration was not real and the transaction was not done in good faith. The only question, therefore, is whether the trial was had without error. The defendants offered to show that the plaintiff took away from the farm in question, when she left, some or all of the property she had assigned to her son as the consideration of her agreement with him. That this property was worth $800, as claimed by John Morris. That the sheriff was told to levy on this property in the possession of his mother. The evidence should have been received. Cuyler v. Moreland, 6 Paige, 273; Storm v. Badger, 8 id., 130; Forbes v. Waller, 25 N. Y., 430.

The case must now be decided upon the assumption that at the time of the issuing and return of the execution against John Morris, the plaintiff had abundant personal property of his in her possession out of which to pay the same with all costs.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    James L. Reynolds, Resp’t, v. Henry S. Craus, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Pleading—Sham answer.
    A general denial cannot be stricken out as sham, unless the defendant has been examined before trial and has admitted the falsity of the answer.
    Appeal from order striking out the answer as being frivolous, false and sham.
    Action upon a non-negotiable promissory note made by defendant. The complaint alleged the making of such note,; the assignment thereof by the payee to one John M. Horsfall; the assignment by Horsfall to the firm of W. M. Reynolds & Go.; the assignment by W. M. Reynolds & Go. to plaintiff before maturity; the protest of the note, and that there was due to plaintiff the sum of $1,000 and interest, with the fees of protest.
    The answer alleged a want of knowledge or information sufficient to form a belief as to all the matters alleged in the complaint except the first, aud therefore denied the same, and also alleged that, defendant was not indebted to the payee in that sum, but ■only in the sum of §500, and that the note was given for her ac■commodation, and as collateral security for any sum that might be found due her on an accounting.

      Norman A. Lawbr, for app’lt; Pelham L. McClellan, for ■resp’t.
   Pratt, J.

Under the authority of Wayland v. Tysen, 45 N. Y., 281, and Thompson v. Erie Railway Co., id., 471, this order must be reversed.

The cases cited by respondent were all decided before the two cases above cited, and so far as they bold that a general denial ■can be stricken out as sham, are overruled.

The only variation from the rule as laid down in these cases has been where a party has been examined before trial and has •admitted the falsity of the answer.

Order reversed, with costs to abide event.

Dykman, J.,.concurs; Barnard, P. J., not sitting.


text:
    William Harrigan, Resp’t, v. The City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Municipal corporations—Negligence—TJnpaved sidewalks.
    Plaintiff, while traveling on a part of a street which had no paved sidewalk, attempted to cross at a point where there was no cross-walk and caught his foot in a V shaped hole in the curb, by which his ankle was broken. Held, ihat as the city authorities had not paved or flagged the sidewalk, persons using it did so at their own risk; that the accident in question was one which could not have been anticipated, and that a want of reasonable care by defendant was not shown.
    Appeal from judgment in favor of plaintiff, and from order •denying motion for a new trial.
    On July 21, 1888, the plaintiff, a plumber, was building a house on Centre street, Brooklyn; after he had quit work that night, which was Saturday, he started with his brother to carry ■some white lead and oil down to where the house was building, so as to be able to put a coat of paint on early Monday morning.
    The keg of white lead the plaintiff was carrying weighed twenty-five pounds. i
    They walked along Columbia street to Hamilton avenue, and along Hamilton avenue to Hicks street, and then started to walk along the right-hand side of Hicks street.
    Hicks street was open for traffic from Hamilton avenue to the bay or river front; it had been regularly graded and the centre of it paved with cobble stones, with blue-stone gutter and curb ; the sidewalks from Hamilton avenue to Nelson street had been flagged, but from Nelson street to the river front the sidewalks had not been flagged, but were dirt sidewalks ; there were houses all the way along the street, and it was used by the public for wagons, and the sidewalks by people walking; the plaintiff had walked on Hicks street as far as Huntington street; this was beyond Nelson street and where there were dirt sidewalks ; they .then started to cross the street; there was a puddle of water in the street, and they separated, one passing on each side of it; the plaintiff stepped up with his foot onto the curb of the sidewalk ; at this point there was a Y-shaped space in the curb-stone where the ends of two of the stones came together; his foot slipped into this space and he fell, breaking both bones of his leg and injuring him severely; this defect had existed for a long time prior to this accident.
    The defendant proved by two policemen that they had never-noticed this defect, and that it was their duty as policemen to-make any reports if they had noticed it.

      Almet F. Jenks {Wm. T. Gilber* of counsel), for app’lt; James 0. Church, for resp’t
   Pratt, J.

It cannot be said there was not evidence, in case the; jury believed the plaintiff and his witnesses, to sustain the verdict, although it seems very doubtful from reading the testimony whether the accident occurred at the time or place claimed by the plaintiff.

The credibility of the witnesses was for the jury to pass upon,, and under familiar rules the verdict must stand as to the facts.

It is undoubtedly true, as a proposition of law, that where power is vested in public officers to make improvements, such as street sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained.

Judge Cooley says in the Toolan case, 37 Mich., 154, “ In planning public works a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection, for that would be to take the administration of municipal affairs out of' the hands to which it has been intrusted by law.”

It is perfectly clear in this case that no human foresight could ever have anticipated such an accident as is here claimed.

The city authorities had never paved or flagged the sidewalk, and in that regard had never invited the public to use it except at their own risk. The authorities had never planned to make a sidewalk for travel, and any one attempting to use it took the risk of accident unless there was some dangerous hole or obstruction which had been placed there since the sidewalk was constructed so far. as planned.

The notch where plaintiff claims he was injured was not at a crossing and it is a most remarkable coincidence, not to say unreasonable, that the plaintiff should cross the street at this precise spot and happen to put his foot in that particular notch in the curbstone.

Applying the rule before laid down, it does not seem to us that the plaintiff established a want of reasonable care on the part of the defendant.

It was really such a defect as would not be liable to be in that locality, and one which no reasonable man would ever suppose would be likely to result in injury to any one.

We think the judgment ought to be reversed and new trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.


author: Andrews, J.

text:
    In the Matter of the Application of Elvira B. Carpenter for appointment of a trustee, etc.

      (Court of Appeals,

      Filed February 2, 1892.)

    Trust—What will constitute.
    Petitioner averred that certain notes were assigned to P. on an agreement that he would collect them and pay the proceeds to her or obtain new notes payable to P., or bearer, and deliver them to her; that some of the notes were collected and new notes were taken for others; that P. died intestate before completing the duty assumed by him, and that his administrator had inventoried the notes as part of his estate. An affidavit of M. that he drew the assignments and heard P. declare to petitioner that he would turn over to her "the net proceeds or the notes, was attached to the petition. Held, that a prima facie case was made entitling petitioner to have a new trustee appointed to demand and receive the notes and carry into effect the trust.
    Appeal from order of the supreme court, general term, third department, reversing order of special term appointing a new trustee.

      0. K Patterson, for app’lt; W. 0. Daley, for resp’t.

       Reversing 40 St. Rep., 58.

   Andrews, J.

The petitioner was entitled under the act, ■chapter 185 of the Laws of 1882, to have a new trustee appointed in place of George A. Pierce, the deceased trustee, on a prima facie case being made, not conclusively disproved, showing that the notes, money and securities in the hands of the administrator of Pierce, referred to in the petition, were either held by Pierce at his decease as trustee for the petitioner, or were the proceeds of the trust estate. Matter of Waring, 99 N. Y., 118.

The appointment of a new trustee would not conclude the representatives of the estate of Pierce, in any proceeding instituted by the appointee to subject the property in the hands of the administrator of Pierce to the trust, from contesting its existence or from claiming that the property.belonged to the decedent. Moreover, the order of the special term was made expressly without prejudice to the estate of George A. Pierce, deceased, to contest.”

Trusts of personal property may be created without writing, for any lawful purpose, and are not in respect either of the mode or purposes of their creation within the statute of uses and trusts. Day v. Roth, 18 N. Y., 448; Gilman v. McArdle, 99 id., 451.

The transaction out of which the alleged trust arose is set forth, in the petition. It avers in substance an assignment by Sylvanus Carpenter to George A. Pierce, on or about February 15, 1889, of eleven over due promissory notes then owned by Carpenter, amounting in the aggregate to about $2,500, upon the express-agreement or understanding that Pierce was to collect the notes and pay and give the proceeds to your petitioner as beneficiary,”" or in case of the inability of the makers to pay them, to obtain from them new notes “ payable to said Pierce or bearer,” and deliver such new notes to the petitioner in lieu of the assigned notes. The petitioner sets out several of the original notes on each of which appears a formal written assignment, executed by Carpenter, the payee, to Pierce. It avers that some of the assigned notes-were collected by Pierce, and that for others new notes were taken in his name; that Sylvanus Carpenter died May 1, 1889 ; that, Pierce died intestate January 23, 1890, before completing the duty assumed by him, and that his administrator Grillet has inventoried the notes held under the agreement with Sylvanus Carpenter as-part of the estate of his intestate and has refused to deliver them to the petitioner. The petition is supported by the affidavit of one Miller, who swears that he drew the assignments on the several notes from Sylvanus Carpenter to Pierce, and that in his-presence and in the-presence of Elvira B. Carpenter, the petitioner, the notes were delivered by Sylvanus Carpenter to Pierce, and that at the time he heard the said Pierce promise and agree to- “ give to the said Elvira B. Carpenter all the proceeds of said notes, whether money or new notes, and to retain sufficient to pay for the services rendered as such trustee.”

We think aprima facie case was made by the petitioner entitling her to the relief sought. Upon the facts stated in the petition there was more than an agency created in Pierce to collect the-notes and pay over the proceeds to the petitioner. SylvanusCarpenter divested himself of the title to the notes. He made a formal written transfer thereof to Pierce, and Pierce took the legal title. Sylvanus Carpenter could not, after the delivery of the-notes to Pierce, under the arrangement made, reclaim the notes or be reinstated to his original title. The petitioner took an equitable interest only, which she could enforce through the medium of a trust. Pierce was not only vested with the legal title to.the original notes, but he was to take any new notes in his name. The rights of the petitioner were those of a beneficiary of a trust.. There can be no doubt that a trust may be created to collect and pay over the proceeds of notes to a person designated by the creator of the trust. The administrator of Pierce, in his answer to-the petitioner, alleges that the notes were the absolute, property of Pierce, and denies the arrangement and agreement set forth in the petition. This claim can be examined when an attempt shall be made to enforce the trust. But it is proper that preliminarily a new trustee shall be appointed to represent the rights of the petitioner in the controversy; and that Pierce was a trustee must,, upon the facts presented by the petitioner, be assumed for the purpose of this proceeding.

We think the order of the general term reversing the order of the special term should be reversed, and the order of the'special term be affirmed, with costs.

All concur.


author: Per Curiam. Ruger, Ch. J.

text:
    William E. Zabriskie, App’lt, v. The Central Vermont Railroad Co., Resp’t.

      (Court of Appeals,

      Filed February 2, 1892.)

      . 1. Sale—Warranty.
    A contract of sale which points out a known and ascertainable standard by which to judge the quality of goods sold, is, for all practical purposes, a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods.
    2. Same—Sale by sample—Counterclaim.
    Plaintiff’s assignors sold and delivered to defendants a quantity of coal under a written contract, whereby they agreed to sell and deliver 30,000 tons of “ Powelton coal of the same quality and kind as furnished you during the past year.” Immediately after defendant tested the first delivery of coal, and until it ceased altogether, it uniformly and constantly complained of the quality of the coal, and objected that it did not correspond to the coal delivered the year before, but was induced to continue tc> receive upon the promises often repeated by the vendors that the quality should be improved, and that the compensation for damages caused by the inferior coal should be adjusted. Held, that the contract contained a warranty of quality which survived the acceptance of the goods, and the sale was practically a sale by sample, and the defendant was entitled to counterclaim the damages arising out of the inferior quality of the coal against the price of the coal delivered by the vendor’s assignee.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendant, entered on referee’s report.

      Hamilton Wallis, for app’lt; JEdward 0. James, for resp’t.

       Affirming 36 St. Hep., 661.

   Per Curiam.

After the argument of this case and consultation thereon, the judges concluded that the judgment should be affirmed, and Chief Judge Euger was selected to write the opinion of the court. He entered upon that duty, and before he had fully completed his opinion, he was stricken down with the disease which soon terminated in his death. He had written enough to justify the affirmance of the judgment, and we now adopt his opinion as the opinion of the court. That opinion, and the able and elaborate opinions delivered by the referee and at the general term, fully answer the argument now made on behalf of the appellant, and it would be a useless task to write more. The opinion is as follows:

Ruger, Ch. J.

“ Thisaction was brought by the plaintiff to recover the contract price of a certain quantity of coal sold and delivered by Eobert Hare Powell & Co. and their assignee, the Guarantee Trust & Safe Deposit Company, to the defendant after June, 1887; and which claim was assigned' by the vendors to the plaintiff. This coal was furnished by the vendors to the defendant under a written contract, made June 8, 1887, between Powell & Co. and the defendant, whereby the said vendors agreed to sell and deliver to the defendant, during the year ending June 1,1888, at Norwood, N. Y., 30,000 tons of Powelton coal, of same quality and kind as furnished you during the past year,’ at three dollars per net ton. The same vendors had furnished the defendant a quantity of Powelton coal the previous year which had been approved as satisfactory by the defendant. Under the contract of 1887, Powell & Co. had, previous to August 29, 1887, delivered to the defendant on its contract upwards of 4,000 tons of coal, and on that day they assigned their contract to the Guarantee Trust & Safe Deposit Company, who continued delivering coal until they were stopped by the absolute refusal of the defendant to receive any more coal from them of the kind already delivered. The assignee of the contract had, up to this time, delivered about 500 tons, leaving some 25,000 tons yet undelivered to complete the performance of the contract.

“ Immediately after the defendant had had an opportunity to test the first delivery of coal, and until it ceased altogether, it uniformly 'and constantly complained of the quality of the coal delivered to it and objected that it did not correspond, either in quality or kind, with the coal delivered to the company in the year 1886. The defendant, however, was induced to continue to receive and to test the coal actually delivered, by the representations and promises, made by the plaintiff’s assignors, that the quality of the coal thereafter delivered should be improved, and .that upon trial it would be found to work more satisfactorily. Various interviews took place between the agents of the defendant and the plaintiff’s assignors, and several examinations were made by them after the coal was delivered and in the possession of defendant, and the vendors uniformly promised to improve the quality of the coal delivered and predicted that the future deliveries would, upon actual experiment, prove to conform to the quality of the coal' described in the contract, and that compensation for the damages caused by the inferior quality of the coal already delivered should be adjusted.

“It was found by the referee that practically all of the coal delivered under the contract was greatly inferior to that furnished in the year 1886. It is clearly inferrible from the findings of the referee, as well as the evidence, that the great bulk of the coal was received by the defendant at the earnest solicitation of the vendors and for the purpose of testing its quality and determining whether the vendors would be able to make its quality conform to the obligations of their contract. It is also evident from the findings that this effort was an unqualified failure.

“ It is contended by the plaintiff that there was no warranty of the quality of the coal sold, and that by its acceptance the defendant has precluded itself from claiming damages for a breach of contract. A satisfactory answer to this claim appears in the fact that it is not found or shown that the defects in the coal were visible on inspection; but, on the contrary, it negatively appears from the conduct of both the vendor and vendee that they were not discernible on inspection. A further answer to this point is found in the proposition that the evidence authorized the finding that there was a warranty as to the quality of the coal sold.

“ The contract in this case calls for Powelton coal of the ‘ same quality and kind as furnished ’ by the vendor to the defendant the preceding year. It calls for coal of a particular quality and kind, determinable by a standard which was equally well known and understood both by the vendor and the purchaser. While the term Powelton coal ’ may be said to be a descriptive term, merely, when it is said that the coal was to be Powelton coal of the same quality and kind as that delivered in the previous year, it goes beyond mere words of description and refers to the intrinsic value of the goods sold in language which cannot be misunstood and can be satisfied only by a consideration of its fitness to perform the work required of it in the defendant’s business. That this was the theory of the vendors while the coal was being delivered is quite evident from their request that it should not be prematurely judged by its appearance alone, but should be determined by positive trial and the Jesuits shown by actual use and experiment. It comes, therefore, with ill-grace from the vendors now to insist that the defects in the coal were so perceptible on inspection that the defendant should be barred by its acceptance, when they themselves had induced that acceptance only by the assurance that the working quality of the coal would show that the defects visible on inspection were apparent and not real.

“We are, however, of the opinion that, upon the evidence, the contract contained a warranty of quality which survived the acceptance of the goods. The principle is well established that, upon an executoiy sale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of war-. ranty although he has accepted the goods after an opportunity for inspection. Kent v. Friedman, 101 N. Y., 616; Brigg v. Hilton, 99 id., 517; Gurney v. The Atlantic & Great Western R. R. Co., 58 id., 358. We are, also, of the opinion that the sale in question was, practically, a sale by sample. Although the standard selected for comparison was not present, or in existence even, at the time of the sale, its qualities had been observed and demonstrated and were capable of exact ascertainment by the evidence of those who had witnessed the results produced by the consump.tion of the coal.

“ It was unnecessary for the purpose of effecting a comparison of the respective qualities of the two specimens of coal that they should be present and compared side by side, or tested at the same time. The capacity of coal for generating heat and steam determinéis its value, and it is only by the destruction of the subject that a standard can be created for comparison. The comparison does not depend upon considerations of external correspondence and appearance, and this was obviously the view which these parties took of the question while negotiating as to the continuance of the deliveries of coal under this contract. The standard selected for testing the quality of the goods sold was considered sufficiently definite and precise by the parties to the contract, and it does not appear that there was any difficulty in practice in applying it to the subject

“A contract of sale which points out a known and ascertainable standard, by which to judge the quality of goods sold, is for all practical purposes a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods. The cases of Coplay Iron Co. v. Pope, 108 N. Y., 232; 13 St. Rep., 480; Studer v. Bleistein, 115 N. Y., 316; 26 St. Rep., 400; Pierson v. Crooks, 115 N. Y., 539; 26 St. Rep., 492, and other cases of like character, are clearly disguishable, inasmuch as one is a contract concerning a sale by sample, and the others were executory contracts for the manufacture and sale, or delivery, of goods of a particular description. In cases of the latter character, where the quality of goods is capable of discovery upon inspection, and where, after full opportunity for such inspection, the goods are accepted, and no warranty attends the sale, the vendee is precluded from recovering damages for any variation between the goods delivered and those described in the contract.

“ It is also contended by the appellant that the defendant could not counterclaim the damages arising out of the inferior quality of the coal against the price of the coal delivered by Powell & Co.’s assignee. There was no new contract made between the defendant and Powell & Co.’s assignee, and the coal delivered by such assignee was evidently delivered in performance of Powell & 0o.’s contract. It was probably supposed by the assignee that through the performance of Powell & Co.’s contract it might realize a larger sum from the assigned property than it otherwise could. It thus, without supposing any special arrangement necessary, continued supplying coal to the defendant. The coal, however, was of the same inferior quality as that previously delivered by Powell & Co., and the defendant finally, after the delivery of an inconsiderable quantity by the assignee, refused absolutely to receive any more. The assignee, however, had an absolute right to perform Powell & Co.’s contract, although under no legal obligation to do so. He chose to attempt its performance, and the defendant had no power or right to prevent it. It, therefore, received all the coal delivered in performance of that contract, relying upon its contract for indemnity against loss on account of its inferior quality. While the defendant was under no legal obligation to receive inferior coal from the assignee, it yet had a right to receive it conditionally and apply it upon the obligations of the contract. It cannot be that either the assignee or the defendant had any other idea with reference to the delivery of coal by the assignee than to fulfill the contract which the assignee had secured by assignment from Powell & Go."

The judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    The People ex rel. The Southern Cotton Oil Co., App’lt, v. Edward Wemple, Comptroller, Resp’t.

      (Court of Appeals,

      Filed February 2, 1892.)

      1. Taxation—Corporations—Foreign.
    A foreign corporation which keeps a place of business in this state; keeps a deposit of money in bank here, and sells a large percentage of its manufactures in this state, does business here within the meaning of the statute, and is liable to taxation on its capital used in this State.
    2. Same—Constitutional law—Chap. 361, Laws 1881.
    The statute under which the tax in question was imposed is not in conflict with the provision of the federal constitution which confers on congress the exclusive power to regulate commerce between the states, or with any other provision of said constitution.
    Appeal from judgment of the supreme court, general term, third department, confirming decision of comptroller in making assessment of taxes under the corporation tax laws of 1880 and 1881.

      Wm. W. MacFarland, for app’lt; Chas, F. Tabor, Att'y-Gen., for resp’t.

       Affirming 39 St. Rep., 788.

   O’Brien, J.

The relator is a corporation organized under the laws of New Jersey, having an authorized capital of $5,000,000, $4,000,000 of which has been issued. On September 2, 1890, the comptroller of this state, in pursuance of chap. 361. of the Laws of 1881, fixed and determined the amount of taxes due from the relator to the state for the three years ending November 1, 1889, at $2,303.42, and in arriving at this result he found that the amount of its capital stock employed by the relator within this state was $100,000 for the year 1887 ; $1,333,333 for the year 1888, and $121,212 for the year 1889. No question appears to be made by the relator in regard to the correctness of the comptroller’s action in estimating and fixing the amount of its capital in use in. this state, or in determining the amount of the tax thereon, if it is liable for any tax at all. The relator’s sole contention on this branch of the case is that it is not doing business within the state, and hence is not within the statute. If the relator is within the statute, and the comptroller had jurisdiction to inquire and determine whether the relator was employing any part of its capital in business within this state, and, if so, the amount, we do not understand that the relator complains of the disposition made of the facts bearing on the questions of value.

In regard to the facts bearing on the question whether the relator is doing business within this state, the return to the writ of certiorari, brought to review the action of the comptroller, states that it “ consisted in part of maintaining a sales agency in the city of New York, and in selling .the product of its mills in this state, and in refining crude oil within this state and delivering the same to purchasers therein and maintaining a depot or warehouse in the state of New York for the storage of its products therein and in keeping on deposit in the banks in the city of New York large sums of money for the use of the relator and for the carrying on of its business; that during the year 1887 nearly forty per cent, of the total sales of products by the relator were sales made in the state of New York; and during the year 1888 over thirty-three and one-third per cent, of the total sales of relator’s products were made in the state of New York; and duririg the year 1889 over three per cent, of its total sales were made in the state of New York.” It further appears that the relator’s business is the manufacture and production of oil from cotton seed and refining and selling the same. Its principal office is at Camden, New Jersey, but it has an office or agency in the city of New York. During the year 1888 it kept in banks of this state for use in the , transaction of its business $15,124, and during the year 1889 $88,773.74. During the three years for which the tax was assessed it sold in this state about one-third of its whole product. There can be no doubt that a corporation created by the laws of another state but doing business in this state is subject to the jurisdiction of the officer whose duty it is, under the act of 1881, to determine and assess the amount of taxes which corporations are bound to pay to the state, and is subject to taxation as well as a domestic corporation. The basis of the tax is the amount or portion of its capital in use here in the transaction of its ordinary business. How much that may be in any particular case is generally a question of fact to be determined by the comptroller under the procedure pointed out by the statute. There is no injustice or hardship in such a law. If a foreign corporation or a corporation created by the laws of a sister state employs the whole or a portion of its capital here, and thus has the benefit and protection of the government and laws of the state to the extent of the capital so employed, there is no reason why it should not be subjected, to the extent of the capital so employed, to the same burdens and obligations as a domestic corporation. •

The tax is not imposed upon its property but for the privilege which is extended to it by the state of doing business here as a corporation and in its corporate name. Since the statute has been amended so as to make the amount of capital used in this state the basis of the tax the amount of business transacted here is of much less importance than formerly. If but a very small part of the corporate business is done here and but a small part of the capital employed here, then the tax is correspondingly light. The facts in this case show that during the years for which the assessment was made the relator employed a portion of its capital and conducted a substantial part of its business operations within this state, and that was enough to subject it to the obligation to defray some part of the public burdens. The statute in question in its application to corporations created b)r the laws of another state and doing business here lias been frequently construed by this court and the principles applicable to such cases stated. The facts, of this case bring it within the rule of liability enunciated in these cases. People v. Equitable Trust Co., 96 N. Y., 387; People v. Horn Silver Mining Co.. 105 id., 76; 6 St. Rep., 495; People ex rel Contracting & Dredging Co. v. Wemple, 42 St. Rep., 400.

The statute under which the tax in question was imposed is not in conflict with the provision of the federal constitution which confers upon congress the exclusive power to regulate commerce between the states. Though the relator is a New Jersey corporation its principal manufacturing operations are carried on in the southern or cotton producing states. For the purpose of disposing of its product it is necessary or convenient to establish and keep an agency in the city of New York and to employ some part of its capital here, though it may be a comparatively small part, and to sell a considerable part of the product of its factories here. All this it does in its corporate name and character. The state has the power to exclude corporations of other states from doing business within its jurisdiction. If, however, it permits them,, to come here and transact their business it may impose a tax upon them for this privilege, and this is not a regulation by the state of interstate commerce but a lawful exercise of the power of taxation upon corporate bodies that for the time being are within its jurisdiction for that purpose.

If the contention of the learned counsel for the relator should prevail, then any manufacturing corporation in other states, or even in a foreign country, could come here and establish an office or agency and transact a part or even the whole of its business here and escape taxation entirely upon the ground that it was engaged in selling some part of its produce in other states or in foreign countries, and therefore was engaged in interstate or foreign commerce within the meaning of the federal constitution. The commercial clause of the federal constitution does not preclude the states from exercising the power of taxation in such a case as is disclosed by this record. The cases in which statutes enacted by the states have been held invalid as regulations of commerce were stated by Justice Field in Sherlock v. Ailing, 93 U. S., 102, as those legislative acts which “ imposed a tax upon some instrument or subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between particular places was required to be conducted.” They are all cases which operate directly upon commerce. In another part of the same opinion the learned judge explains the scope and meaning of the provision conferring upon congress exclusive power to regulate commerce. “ In conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on ail subjects relating to the health, life and safety of its citizens, though the legislation might indirectly affect the commerce of the country. Legislation in a great variety of ways may affect commerce and persons engaged in it, without constituting a regulation of it, within the meaning of the constitution.” The only limitation upon the power of a state to exclude a foreign corporation from doing business within its limits or to exact conditions for such a privilege arises where .the corporation is in the employ of the federal government, or where its business is strictly commerce, interstate or foreign. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S., 12; Pembina Mining Co. v. Penn., 125 id., 181, 190.

The cases are numerous in the highest federal court where legislation such as that now under consideration has been held to be valid, and none of the cases cited by the learned counsel for the relator hold that a state statute imposing a tax upon a manufactoring corporation of another state for the privilege of doing-business here is invalid. State Tax Cases, 15 Wall., 232; State Tax on Gross Receipts, id., 284; Delaware R. R. Tax Case, 18 id., 206; Erie R. R. v. Penn., 21 id., 492; Phila. Fire Ass'n v. New York, 119 U. S., 119; Smith v. Alabama, 124 id., 482; Home Ins. Co. v. New York, 134 id., 599; Marye v. B. & I R. R., 127 id., 123. The property of a foreign corporation engaged in foreign or inter-state commerce may be taxed equally with like property of a domestic corporation engaged in the same business, but a tax or other burden imposed upon the property of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void as interference with or obstruction of the power of congress in the regulation of commerce. Gloucester Ferry Co. v. Penn., 114 U. S., 211. The obligation imposed upon the relator by the act of 1881 to pay a tax to the state treasury as a condition of enjoying the privilege of transacting business here does not in our opinion conflict with any provision of the federal constitution.

The judgment of the general term should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    Jacob Pauley, Adm’r, Resp’t, v. The Steam Guage & Lantern, Co., App’lt.

      (Court of Appeals,

      Filed February 2, 1892.)

    1. Master and servant- -Negligence—Fire escape.
    The Law of 1887, chap. 403, as to fire escapes, imposed a duty upon the owners or occupants of the prescribed class of iactories, for an omission to perform which the operatives injured by the omission might recover damages. But the duty so imposed is both created and measured by the statute.
    2. Same.
    Defendant placed two fire escapes upon its building which were examined and approved by the inspector. The building was five stories high on the court side and seven on the river side, and no scuttle leading to the roof with a stationary ladder giving access to it, but the iron ladder fire escape was carried to the roof instead of stopping at the upper story. Held, that defendant had not omitted any duty imposed upon it by the statute and was not negligent or careless in the due performance of its duty towards its employees.
    3. Same.
    There was a shute in the court, at the bottom of the ladder, which led into the building, and the complaint alleged that plaintiffs intestate fell from the bottom of the ladder back into the building through the shute. His body was found eight or ten feet from the opening of the shute into the basement in the centre of the depth of the debris made by the fallen floors, upon the wreck of the floors beneath the fifth, and covert d by the debris of the two floors and the roof above. Held, that the evidence disproved the theory of the complaint and no judgment founded on it could be sustained.

      4. Same.
    There was some proof that some of the operatives fled to one of the escapes but did not use it on account of the blinds swinging against it. Held, that the presence of blinds did not turn into actionable negligence the situation of the escape which a disinterested inspector had examined and approved.
    Appeal from judgment of the supreme court, general term, fifth department, setting aside a nonsuit and granting a new trial.

      Louis Marshall, for app’lt; Eugene Van Yoorhis, for resp’t.

       Reversing 40 St. Rep., 855.

   Finch, J.

The plaintiff’s intestate lost his life in a fire which, consumed the factory of the defendant, and did its work so swiftly and swept through all parts of the structure with such rapidity that more than thirty of the men employed in the building were unable to escape. The origin of the fire is unknown. No claim is made that it was occasioned by any act or omission of the defendant company, or was in any manner a product or result of its fault or negligence. The ground upon which the action brought to recover damages for the death of the intestate actually rests is that the defendant was negligent in not providing sufficient and adequate means of escape from the building in the emergency of its taking fire, and that such negligence operated to cause the death of the intestate. The plaintiff was non-suited at the circuit, but on exceptions heard at the general term obtained a reversal of the ruling and an order for a new trial. The defendant has appealed from that judgment to this court, giving the usual stipulation, and we are now to determine whether, upon any view of the facts, the plaintiff was entitled to recover.

We are satisfied that if any duty devolved upon the defendant to anticipate the possible burning of its building and provide modes of escape adequate to that emergency, such duty did not exist at common law, and had its origin and measure in the statute which for the first time required in particular cases the construction of fire escapes. Laws of 1887, -chap. 462, § 10. Prior thereto, the owner of a building not peculiarly exposed to the danger of fire from the character of the work to be carried on within it, was not bound to anticipate what was merely a remote or possible danger, or that its occurrence would put in jeopardy the lives of his workmen.

The ordinary means of escape by stairs and halls and doorways and windows might reasonably be deemed sufficient, and ■the common law did not require, where the building was properly constructed for its intended use and purpose, that extra and unusual precautions should be adopted to protect the occupants against a danger for which the owner should be in no manner re-1 snonsible and which he was not reasonably bound to anticipate. That was held in Jones v. Granite Mills, 126 Mass., 84, a case which we cited as authority in Bajus v. S.,B. & N. Y. R. R. Co., 103 N. Y., 319; 3 St. Rep., 96, and the doctrine was repeated in Keith v. Granite Mills, 126 Mass., 90. But with the growth of invention and the spread of the mechanic arts, came an increase in the number of factories employed in production, of the workmen gathered in their rooms, and especially in the size and height of the buildings. The attention of the legislature was first drawn to the evils attending the employment of women and children in such factories, Laws of 1886, chap. 409, and the next year to the possible danger to the operatives when employed in buildings three stories or more in height. Laws of 1887, supray § 10. The very terms of this statute show that in ordinary buildings the usual modes of egress were deemed sufficient, and thattherewas.no negligence in the common and usual reliance upon them; but that factories of greater height, in which were gathered operatives in considerable numbers upon upper floors, were not so easy to safely leave in case of fire, and required additional protection. The act, therefore, as amended in 1887, contained a section which reads thus: “ Fire escapes shall be provided on the outside of all factories three or more stories in height connecting with each floor above the first, well fastened and secure and of sufficient strength. Stationary stairs or ladders-shall be provided on the inside from the upper story to the roof as a means of escape in case of fire.” The act imposed penalties-for any disobedience of its provisions, and provided for the appointment of factory inspectors wffiose duty it should be to examine such buildings and enforce the requirements of the law.

' I am unable to agree with the contention of the appellant that-the sole remedy under the statute was the public remedy which consisted of an enforcement of the penalties provided. The requirement of fire escapes was for the direct and special benefit of the operatives in such factories, and intended for their protection, and the rule applies that when a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage, or for a wrong done to him contrary to its terms. We so held in Willy v. Mulledy, 78 N. Y., 310, and sustained an action in behalf of the persons injured for the omission to provide fire escapes in accordance with the statute applicable to that case. We musthold, therefore, that the law of 1887 imposed a duty upon the owners-' or occupants of the prescribed class of factories, for an omission to perform which the operatives injured by the omission might, recover damages.

But the duty so imposed is both created and measured by thestatuta It is a new duty, having no other origin and no other-measure, and cannot' be made to outrun or exceed the terms of the act. The defendants performed that duty. They placed two-fire escapes upon their factory which connected with each floor above the first, and were well fastened, perfectly secure, and of sufficient strength. Their number, character and location were examined and approved by the public officer appointed und.er the-law, with whom the subject was fully discussed, and who, after the work was done, and he bad carefully inspected it, expressed his approval and reported to his superiors that this factory bad, in all respects, obeyed the law. It is true that this building, which was five stories high on the side towards the court, and seven stories high on the side towards the river, had no scuttle-leading to the roof at the top of its upper story, -with a stationary ladder provided for access to it. But it was shown that one of the fire escapes, which was itself a ladder of iron rungs, instead of stopping at the upper floor, was carried on up to the roof and was a permanent ladder giving access to it.

While it was on the outside of the building instead of the inside, it was an iron ladder instead of a wooden one, giving permanent and fixed access to the roof, and 'neither the defendant nor the inspector were guilty of negligence in constructing and accepting it as a fit and suitable substitute for the inside ladder ■and scuttle. Indeed, in the fire which occurred the latter was shown to be an utterly unavailable means of escape however it might have been constructed and maintained. Balconies leading to the fire escapes were not required by the law, but were recommended by the inspector, and were placed near one of the fire -escapes, but omitted from the other, and when the work was done it met the full approval of the officer required to examine it.

Upon this state of facts it is impossible to say, as we look at the situation before the fire, that the defendant omitted any duty imposed upon it by the statute, or was negligent or careless in the •due performance; and the plaintiff’s counsel found it necessary to break the force of the proof by showing facts connected with the •construction of the fire escapes which, as he claimed, made the latter an obedience to the law in form only while disobeying it in .substance and effect.

One of these facts, and that mainly relied on by the plaintiff, was the existence of a sliute leading from the court into the basement, and placed beneath the fire escape so that a person dropping from its lower rung would be likely to fall into the opening and be returned again into the burning structure. This was the specific negligence charged in the complaint, and its theory of the manner in which the intestate met his death. If anything can be said to be clearly evolved from the horrible confusion of the tragedy described by the proof, it is that the deceased did not meet his death in that manner and from that cause; that he never descended the fire escape or fell into the shute, but was suffocated in the smoke which filled the building, and went down, dead, into the basement with the falling floors. Ho one saw him at a window or on a fire escape. There is no trace of him in any such direction. What we do know is the frightful description of the panic on the fifth floor where the deceased was employed, after escape downward by the stairs was barred by the smoke and flames, in which strong men lost their senses in a frenzy of despair, threw their arms about each others’ necks, held back some who tried to escape, and waited in helpless terror for the death which '.they deemed inevitable. The flames pervaded the whole building above the basement almost instantaneously. They poured out of the windows and flowed over the fire escapes. Those who had the courage and coolness to descend them were burned and blistered on their way, and tell us how some of their companions were turned back from the iron rungs by the puffs of fire which enveloped them. When the bodies of the dead were found their location and situation disclosed the only truth we are ever likely to .know. One group of eleven, interlocked and intertwisted so that it became necessary to take them out of the wreck in a mass, were found in the basement not far from the stairway, lying upon the fallen debris at about the centre of its depth, and so buried both upon and beneath the wreck of the fallen floors. Another group of five was found near by at about the same level. Whether Pauley was one of the two groups, or lay somewhat separated from them, is not in all respects certain ; but two things are certain ; first, that his body was found at least eight or ten feet from the opening of the shute into the basement; and, second, in about, the centre of the depth of the debris made by the fallen floors. The slightest reflection makes impossible any other inference than that he went down with the floors, which fell in one crash about, one hour after the beginning of the fire, and when all those who* had not escaped from the building were lying within it, dead. That accounts for his body being found upon the wreck:of the-floors beneath the fifth, and covered by the debris of the two-floors and the roof above. It is absurdly impossible to imagine-him crawling into that position from the shute. That, therefore,, whatever its form or situation, had nothing to do with the death of the intestate as an operative cause,

The evidence, thus, so far from tending to sustain the theory of the complaint, tends only to disprove it, and no judgment founded upon it can be sustained.

But the respondent and the general term insist that some other-theory may be adopted, and in order to do so, enter upon the realm of conjecture, and ask that a jury, in the utter absence of proof, may be allowed to guess that there was some negligence on the part of the defendant which might have tended to cause the-death of the intestate. In this connection the open blinds making an approach to one of the fire escapes difficult was referred to. The inspector testifies, in substance, that- they formed no serious-obstruction. He says: “ I observed what the effect was upon the-fire escape when those blinds were open; there was a little space left in the centre that a man might come down on, but the blinds-materially closed over the fire escape leaving perhaps a foot in thecentre that it didn’t cover; I did not measure it to see whether it-was as wide as a foot; I think a man could reach it easy enough, because the windows were close together; it wasn’t a big distance to reach, just about the width of the blind; all he would have to-reach over would be the blind.”

It is evident that the inspector before the fire, with a full knowledge of the presence and effect of these blinds, did not deem them a serious hindrance to the use of the fire escape, gave no order for their removal, and deemed the escape sufficient within-the law. One of the workmen did, in fact, escape by that route, though unable, to say how he did it. What is claimed is that, there is proof that some of the operatives fled to this escape but could not use it on account of the blinds, and we are asked to permit a jury to guess or conjecture that Pauley was one of these without any proof of the fact and in the face of the evidence that, no one who did use it or approach it saw him at all. Now the proof does not show that any one was turned back because he could' not reach the escape. That one could have done so we know, for it was done through all the heat and smoke and confusion. The witness Burkett says, “ seeing the blinds open I went back," but he made no trial or effort. We are not satisfied that the presence of these blinds turned into actionable negligence the situation of the escape which a disinterested inspector had examined and approved. There was no place upon the building where a fire escape could be put which would not, have its inconveniences, its possible perils, and might not after an accident invite criticism. We think the duty imposed by the statute was fairly and fully performed, and even if it was not that we aré not to resort to conjecture and permit a verdict to be based on bare possibilities alone. For the fact to be conjectured is not even made probable by the proof. The groups of eleven and of five who went down with the floors, and among or near whom the intestate was found, were those driven back from the elevator fire escape by the heat and the smoke, whom George Burkett found lying on the floor in a suffocating condition as he crawled away; a crowd of twenty-five who “got no further than that” and died where they lay. Hone of them were in Gaul's room, which opened upon the escape where the blinds were, for the witness on his way back from that locality found them in the wing huddled together and choking with the smoke. The proof not only fails to encourage the conjecture, but leaves it without justification even as a guess. There is no ground upon which a finding that the death of the intestate was due to the shute or the blinds, or the absence of a scuttle which nobody reached and nobody tried to reach, can be sustained. A mere conjecture built upon a bare possibility will not suffice to transfer the money or property of one man to the possession and profit of another. As we said in Bond v. Smith, 113 N. Y., 378; 22 St. Rep., 666, food for speculation will not serve as the basis of a verdict.

It is difficult not to sympathize with the sufferers from this deplorable accident even at the expense of one’s better judgment, but we must be governed by our conviction that no cause of action was established.

The order of the general term should be reversed, and judgment be entered on the nonsuit for the defendant, with costs.

All concur, except Maynard, J., taking no part.


author: Earl, Ch. J.

text:
    In the Matter of the Application of John A. Holmes for an Order Granting Leave to Issue Execution, etc.

      (Court of Appeals,

      Filed February 2, 1892.)

    1. Judgment—When a lien on decedent’s estate—Code Civ. Pro., § 1380.
    Section 1380, Code Civ. Pro., providing that no execution can issue to enforce a judgment which is a lien upon the real estate left by a deceased judgment debtor until the expiration of one year from his death, has the effect of extending the time provided by § 1251, during which the lien o£ a judgment continues, and in such a case the lien would continue for eleven years.
    S. Same.
    As § 1380 of the Code provides that where letters testamentary or of administration have been issued, the order granting leave to issue execution cannot be granted for three years, or if no letters issued, then for three years after death, the lien of the judgment under § 1355 would continue "for thirteen years.
    ■8. Same.
    The clause of § 1380, Code, which directs that it shall not apply to real estate which has been conveyed by the deceased judgment debtor during his lifetime in fraud of his creditors, etc., applies only to a case where the fraudulent deed has been adjudged fraudulent.
    Appeal from judgment of the supreme court, general term, ■first department, reversing order of special term denying motion :for leave to issue execution after death of defendant.

      David Thornton, for app’lt; Thos. J. Keighorn, for resp’t.

       Affirming 36 St. Rep., 535.

   Earl, Ch. J.

On the 26th day of October, 1880, John A. Holmes and others recovered a judgment against James Boyle for :$9,637.30, which was on that day docketed in the clerk’s office of the city and county of New York. Boyle died on the 26th day of January, 1881. On the 1st day of November, 1873, Boyle -owned certain real estate in the city of New York, and on that day he executed a deed thereof to Andrew Little, which deed was placed upon record. It is now claimed by Holmes, the petitioner, who has become the sole owner of the judgment, that that deed was not delivered to Little, and, therefore, never became operative, •or, if it was delivered, that it was fraudulent and void as to the •creditors of Boyle; that, therefore, the title to the real estate as between Boyle and his creditors remained in him, and that his judgment became a lien thereon.

On the 28th day of October, 1890, at a special term of the supreme court, Holmes obtained an order requiring the proper parties to show cause, on the 11th day of October, 1890, why an •order should not be made granting to him leave to issue an execution to enforce his judgment against the real estate described in the petition. Thereafter, on the nineteenth day of November, After hearing the parties, an order was made denying the petition. Holmes then appealed from that order to the general term, where it was reversed, and leave to issue the execution was there granted. From the order of the general term an appeal has been taken to this court, and the appellants claim that upon the facts appearing the court should not have authorized an execution for the sale of the real estate to be issued.

We do not think it was necessary for the court to adjudicate in this proceeding either that the deed was not delivered or that it was fraudulent. For the purpose of disposing of this matter the •court could, upon allegations and proofs tending in that direction, assume that one or the other claim was well founded, and grant the leave to issue the execution, and then Holmes could sell the real estate, and, having sold it, the purchaser at the sale could try the question whether the deed was fraudulent or had never been delivered in an action brought to recover the possession thereof. The decision of the court granting the leave asked for is not, therefore, a final adjudication binding upon the parties that the deed was not valid and effectual. That matter remains to be determined in some future litigation in which it may be properly involved.

The sole question for our determination now is whether or not at the time the order granting leave to issue the execution was made the judgment was a lien upon the land, assuming that it was the property of Boyle at the time of his death.

It is provided in § 1251 of the Code, that except as otherwise specially prescribed by law, a judgment docketed in the county clerk’s office binds and is a charge upon, for ten years after filing the judgment roll, and no longer, the real property and chattels real in that county, which the judgment debtor then owned or thereafter acquired, within the ten years. Section 1255 provides that the time during which a judgment creditor is stayed by express provision of law from enforcing a judgment is not a part of the ten years to which the lien of the judgment is limited. Section 1379 provides that an execution to collect a sum of money cannot be issued against the property of the judgment debtor, who has died since the entry of the judgment, except as prescribed in the next two sections, and in section 1380 it is provided that “ After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living. But such an execution shall not be issued, unless an order granting leave to issue it is procured from the court from which the execution is to be issued.” Thus it is provided that no execution can issue, even by leave of the court, to enforce a judgment which is a lien upon the real estate left by a deceased judgment debtor, until after the expiration of one year from his death.

That year, therefore, cannot be counted as a part of the ten years specified in § 1251, and the lien of the judgment in such a case would continue for eleven years; and, therefore, it is clear that the lien of this judgment existed at the time the order was made giving leave to issue the execution.

But still further; the proceeding to enforce this execution was actually stayed for three years after the death of Boyle. It is provided in § 1380 that when letters testamentary or of administration have been issued upon the estate of the deceased judgment debtor, an order granting leave to issue the execution cannot be granted until three years after the issuing of such letters; and that when the judgment debtor died intestate, and letter’s of administration upon his estate have not been issued (and such is the case here), the order cannot be made until three years after his death; and thus the lien of this judgment under § 1255 continues for thirteen years.

Section 1380 also, contains this clause : “ But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors, or any of them, and any j udgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be declared fraudulent by the judgment and decision of any court of competent jurisdiction, may enforce his said judgment against such real property with like effect as if the judgment ■debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time,” as further provided in the section. The proper construction of this clause is not free from doubt. The judge presiding at the special term denied leave to issue the execution on the ground that the petitioner having alleged that the ■deed from Boyle to Little was executed in fraud of his creditors, this case is taken out of § 1380, and thus leave to issue the execution could not therefore be granted. At the general term it was held that this clause applied only to a case where the fraudulent deed had been adjudged fraudulent, and as the deed to Little had not been so adjudged the clause had no application to this ■case. Without being sure of the purpose and meaning of this ■clause, we are constrained to agree with the construction put thereon by the general term.

We therefore reach the conclusion that the order of the general term should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Milo A. Daniels, Resp’t, v. Joseph W. Smith, App’lt.

      (Court of Appeals, Second Division,

      Filed February 9, 1892.)

    1. Appeal—Exceptions.
    Where a defendant “ separately excepts to the refusal of the referee to find each of the several seventeen conclusions submitted to the referee by the said' defendant so far as the referee’s conclusions are not in conformity therewith,” the exception is not sufficiently definite and specific to presenta question for review.
    3. Evidence—Parol testimony as to written order.
    Plaintiff testified that October 1, 1873, defendant asked a loan of $150 for three days; that he gave him an order on a debtor C. who gave him the money. That defendant paid sixty dollars on account. Defendant testified that he did not recollect the transaction and 0. swore he never received such order and did not give defendant any money. Then plaintiff called Mrs. D. who swore she saw plaintiff give defendant the order. Her evidence was admitted over defendant’s objection. Held, no error, as it was on a subject on which defendant’s witnesses had testified^ fully, and the order was collateral m.rely and twelve years had elapsed since its use.
    Appeal from judgment of the general term of the supreme court, third department, entered on an order affirming a judgment in favor of the plaintiff entered upon the report of a referee.

      H. W. McClellan, for app’lt; Charles JS. Patterson, for resp’t.
   Parker, J.

The complaint alleged an indebtedness on the part ■of the defendant for goods sold, services rendered, money loaned, and a balance due from the proceeds of a saw mill owned by the defendant and operated by the plaintiff under an agreement that he should have one-half of the earnings thereof for his services. The answer put to issue the allegations of the complaint, set up a counterclaim and prayed for an accounting of the business done at the saw mill

The referee found in favor of the plaintiff in the sum of $570.79, and his findings come to us approved by the general term.

The appellant, however, seeks to press upon our attention his claim that the referee erred in his first, third and tenth findings of fact, in that there is no evidence to support them. But his exceptions do not permit their review. Where a finding of fact is wholly unsustained by evidence, it is deemed a ruling on a question of law which, if excepted to, presents a legal question which this court may pass upon. Halpin v. The Phenix Insurance Company, 118 N. Y., 165; 28 St. Rep., 788.

The defendant did not except to either of the findings of which he complains. He did except in terms to the referee’s conclusion •of law, but that exception cannot avail him because it was required by the findings of fact on which it was based. Nor can he call in question the refusal of the referee to find as requested by him, because not properly excepted tof His only exception -in that .regard is as follows:

“ The defendant also separately excepts to the refusal of the referee to find each of the several seventeen conclusions submitted to the referee by the said defendant so far as the referee’s conclu■sions are not in conformity therewith.”

An exception thus taken is not sufficiently definite and specific to present a question for review. Newell v. Doty, 33 N. Y., 83; Ward v. Craig, 87 id., 550.

The other exceptions to which our attention is directed have reference to the admission of testimony to which the defendant ■objected on the ground that the plaintiff was attempting to show the contents of a written order by paroi, and a subsequent refusal to strike out the testimony objected to, and similar testimony of other witnesses not objected to on the same ground. The plaintiff testified without objection that October 1, 1873, the defendant asked him for a loan of $150 for three days; that one Clark was owing him that amount for house rent, and he gave the defendant an order on Clark for such amount, who gave him the money. .Subsequently the defendant paid sixty dollars on account of the loan, the balance remaining unpaid at the time of the trial. No motion was made to strike out this testimony until after the evidence was all in. The defendant instead attempted to controvert it. He testified that he had no recollection of such a transaction, while Clark asserted positively that he never received such an order and did not give the defendant any money. In rebuttal the plaintiff called Mrs. Daniels, who testified that she was present when the plaintiff gave Smith the order for $150. Then for the first time the objection now assigned for error was made. No motion was made in that connection to strike out all the evidence in the case relating to that subject, and it was not therefore legal error for the court to receive this further testimony on a subject with reference to which the defendant’s witnesses had testified fully, even should it be conceded that were the circumstances, otherwise the objection would have been well taken. But the admission of the evidence can be supported on other grounds. No-recovery was sought to be had on the order. It was collateral merely. The plaintiff testified to the loan of money. The manner in which it was obtained- for the defendant he describes as accomplished by means of an order on Clark. The order was not in his possession, for according to his testimony he had given it' to the defendant nearly twelve years before, and the defendant, denied having it. ■

In view therefore of the temporary nature of the order, thelength of time since its use, the fact that it had long before accomplished its purpose and its collateral character, paroi evidence characterizing the writing and stating the amount for which it was drawn ■was admissible. Grover v. Morris, 73 N. Y., 479; Chrysler v. Renois, 43 id., 212; Bowen v. Bank, 11 Hun, 226; McFadden v. Kingsbury, 11 Wend., 668; Jackson v. Root, 18 Johns., 60.

The judgment should be affirmed.

Judgment affirmed, with costs.

All «concur, except Lardón, J., not sitting.

       Affirming 28 St. Rep., 351.


author: Haight, J.

text:
    Emily F. Dingley, Resp’t, v. Isidore M. Bon, App’lt.

      (Court of Appeals, Second Division,

      Filed February 9, 1892.)

    Vendor and purchaser—Marketable title.
    A deed to one of plaintiff’s predecessors in title, after stating that the grantors had sold ‘ ‘ certain portions ” of the premises to others, and taken mortgages therefor, conveyed all their right in the premises and to the mortgages. The portions sold to others were not particularly described. The deeds to the others did not seem to have been recorded. Held, that this did not constitute a marketable title, as it depended upon a disputed question of fact outside of ibe record about which there is reasonable doubt, and the parties interested in such determination were not before the court. ...
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a decision.

      Herman F. Koepke, for app’lt; Jesse Johnson, for resp’t.

       Affirming 30 St. Rep., 162.

   Haight, J.

This action was brought to compel the specific performance of a contract to purchase land. The defense was that the title was not merchantable.

Peter A. Delmonico was the owner of a tract of land in the city of Brooklyn comprising the land in question. On the 11th day of March, 1854, he conveyed the same to Henry Jukes and Job Gothard. On the 26th of September thereafter they conveyed the same to James Hordern by separate deeds, each of an undivided half, which were identical in form, containing the same recitals. The quotations hereinafter made are taken from the Jukes deed. It contained the following:

“Whereas, the said Henry Jukes and Job Gothard afterwards by deeds sold and conveyed' certain portions of the entirety of the premises hereinafter described to John Langston, Jubal Shaw and .Samuel Bailey by separate deeds of conveyances, and took back from the said John Langston, Jubal Shaw and Samuel Bailey, severally, bonds and mortgages for the respective payments of the several sums therein mentioned as securities and for the purchase moneys thereof, reference to the several deeds being hereunto had will more fully appear; and
“ Whereas, the party of the second part has agreed to purchase of the said Henry Jukes his portion of the entirety of the premises hereinafter mentioned, subject, however, to the several equities aforesaid.”

Then follow the ordinary provisions of a deed with a description of the premises, after which appears the following:

“ Nevertheless, it is hereby understood by and between the parties hereto that the said Henry Jukes, as far as in him is, not only ■conveys his right, title and interest in and to the premises aforesaid, but hereby sells, assigns and confirms unto the said James Hordern, all and singular the said bonds and mortgages as far as the moiety of his interest in the premises aforesaid attaches made by the said John Langston, Jubal Shaw, Samuel Bailey to him, the said Henry Jukes, and the said Job Gothard, for security on their said several purchases of portions of the property aforesaid, and all his right and interest therein and thereto, so that the said James Hordern shall stand in every respect and particular regarding the. aforesaid property in the place and stead, and with the rights and title therein of the said Henry Jukes.”

Hordern subsequently conveyed the premises to William Tasker, who conveyed to Sidney Harris, who died leaving a last will and testament, which was duly admitted to probate, whereby he appointed Edward A. Harris executor, with full power of sale. Harris, as executor, sold to John B. Kennaday, but he refused to complete the purchase by reason of the recitals in the Hordern deed, to which we have already called attention. Thereupon and on the 12th day of June, 1869, an action was brought to compel him to accept title- An answer was. interposed and a reference was had to Oscar H. Stearns to take proof of the facts and circumstances at issue in the case and to report the same with proofs and testimony taken before him to the court. He thereupon made his report, and afterwards and on the 16th day of June, 1869, judgment was entered, in which it was adjudged and decreed that the objections of the defendant to the title to the lands be overruled, it appearing that the recitals in the deeds set forth in the answer are mis-recitals and are not true; that no deeds were ever given to John Langston, Jubal Shaw and Samuel Bailey by Job Gothard and Henry Jukes, or either of them; that executory contracts made with said persons were cancelled and surrendered to •James Hordern, the grantee of said Jukes and Gothard. It was further ordered and adjudged that John B. Kennaday specifically perform his contracts. Thereupon Kennaday took title and conveyed the same to the plaintiff.

It first becomes important to consider the effect of the judgment entered in the action of Harris v. Kennaday. As we have seen, only four days elapsed between the service of the summons and the entry of final judgment. The only evidence reported by the referee was the affidavits of Henry Jukes, Job Gfothard and James Hordern. It does not appear that any oral examination was had. Jukes, in his affidavit, says that he had some recollection of making a contract with John Langston, Jubal Shaw and ■ Samuel Bailey in relation to the sale of lots; that he supposes he received some money on the contracts, but does not know how much ; that he believes, or at least has no recollection, that any deeds were executed, or if ever executed, were not passed by deponent to Langston, Shaw or Bailey. Gfothard says that he remembered making contracts with John Langston, Jubal Shaw and Samuel Bailey for the sale of land bought by him of' Delmonico; that he received, he thinks, a small amount of money from each of the parties on the contract; that he thinks no deeds were executed by him under his contracts and he received no mortgages. If he had he would have put them on record ; that he sold his interest in the property subject to the contracts to James Hordern. Hordern swore that he bought the property subject to certain contracts made with John Langston, Jubal Shaw and Samuel Bailey for deeds to be executed and mortgages to be received, but that they failed to comply with the contracts and no deeds or mortgages were ever made or executed, and all of the contracts were surrendered to him to be cancelled and were delivered over to Tasker, his grantee; that Langston built a house on the premises, which he allowed him to take off and remove as a consideration for his surrender and cancelment of his agreement ; that he is sure no deeds or mortgages were ever on the-lots or any part of the same in pursuance of the contracts. This was all of the evidence given upon which that judgment was; entered.

It will be observed that Jukes and Gfothard have no distinct recollection in reference to the execution of deeds to Langston, Shaw and Bailey. They think they executed none, or if they did that they were not delivered, and they think that no mortgages were received back. It is not pretended that Hordern was-in a position to have personal knowledge as to whether they did or did not execute and deliver such deeds. Langston, Shaw and Bailey were not parties to that action. They consequently were-not bound by the adjudication there made. Neither is the same-binding upon the defendant in this action. We must, therefore,, regard the question here presented the same as if the adjudication in the Harris action had not been made.

The lands in question are vacant, having never been occupied. The plaintiff’s title is such only as Hordern obtained through his. deeds from Jukes and Gfothard. Those deeds do not purport to-convey the absolute fee to Hordern but specifically reserve that, conveyed to Langston, Shaw and Bailey, and provide that Hordern “ shall stand in every respect and particular regarding the aforesaid property in the place and stead, and with the rights and. title therein” of Jukes and Gfothard.

It is claimed that an examination of the register’s office in th& county of Kings fails to disclose any record of the deeds to Langston, Shaw and Bailey, that the recitals in the deeds only amount to constructive notice and cast upon the purchaser the duty of ascertaining from the records the extent and nature of their conveyances, and that inasmuch as the record disclosed nothing the purchaser took absolute title in fee.

The question thus presented is not free from difficulty, but we incline to the opinion that the rule thus invoked does not and should not extend to the case under consideration. As we have seen the Hordern deed specifically reserves therefrom the lands conveyed to Langston, Shaw and Bailey, “ reference to their several deeds being hereunto had will more fully appear.” Hordern would not, therefore, under the deed take any title to that which had previously been conveyed to these parties. True, those deeds do not appear to have been recorded. They however may be in existence, and may hereafter be produced for record, and if they should, we do not understand that there is anything in the provisions of the Recording Act that would prevent the grantees therein named from claiming the lands described in their deeds. Conveyances not recorded are void as against subsequent purchasers in good faith and for a valuable consideration for the same real estate or a portion thereof, but if the purchaser has notice of such unrecorded deed he cannot claim the benefits of the act. Here the recitals in the Hordern deeds give notice of the existence of such unrecorded deeds.

In the case of Sanders v. Townshend, 89 N. Y., 623, the action was ejectment and not for specific performance of a contract to purchase. Townshend held a deed which conveyed certain lots, specifically describing them. It also conveyed all other lands contained within the limits of the Harlem commons as described on the map of Charles Clinton “not heretofore conveyed by the parties of the first part.” The party of the first part therein referred to formerly owned the entire tract known as the Harlem commons and had conveyed therefrom various lots of land. An examination of the records failed to disclose any previous conveyance of the lots in controversy. It was therefore held that Townshend had a paper title good on its face against the grantor and good as against the world except some person who could show an earlier conveyance from Townshend’s grantor. This case does not sustain the appellant’s position, for it distinctly recognizes the rights of those holding prior grants.

The case of Dow v. Whitney, 147 Mass., 1, also relied upon by the appellant, does not appear to be in point. In that case the deed contained a specific description of the granted premises and then concluded by stating that they were the same premises that were conveyed to the grantor by a certain deed which conveyed a larger tract, and then recited that the conveyance was of ail the land conveyed by that deed except such portions thereof as the grantor had theretofore sold. It was held that the recital did not operate to alter the description or limit the prior granting clause of the deed, but was a reference merely to the grantor’s chain of title.

The defendant is entitled to a marketable title free from reasonable doubt. The records of the register’s office do not show such a title. Its validity depends upon the determination of the fact' as-to whether deeds were in fact given to Langston, Shaw and Bailey,, and the rule is that specific performance will not be decreed when the title depends upon a disputed question of fact outside of the record about which there is reasonable doubt, when the parties interested in such determination are not before the court. F leming v. Burnham, 100 N. Y., 1; Kilpatrick v. Barron, 36 St. Rep., 15-20.

The judgment should be affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Delecta H. Woodruff et al., App’lts, v. Sophronia M. Paddock, Resp’t.

      (Court of Appeals, Second Division,

      Filed February 9, 1892.)

    Highways—Easements—Adverse possession.
    Prior to 1846 the owners of lots 43 and 45 had acquired easements over and title in fee of one-half, respectively, of a certain alley,which was a public highway subject to the rights of the public. The alley was abandoned by the public and one 0., the owner of lot 43, closed the alley, and erected' a gate in front of it, planted trees and erected a coal shed upon it between that time and 1850. 0. became the owner of lot 45 in 1856 and plaintiffs in 1884. At the time of its conveyance by C., he was in possession of the alley, claiming to own the same to the knowledge of his grantee. Held, that plaintiffs had lost their private rights in the alley, as their existence had been denied and the alley exclusively possessed by defendant for more than twenty years, she claiming to own the fee of the street.
    Appeal from a judgment of the general term of the supreme court of the fifth judicial department, which affirmed a judgment-dismissing the complaint entered on a report of a referee.
    This action was begun May 2, 1889, to recover a judgment to-perpetually restrain the defendant from excluding the plaintiffs from using as a way a strip of land one rod in width, extending-along the east side of their premises (lot 45), and damages for-having prevented them from having so used the strip before the action was begun. Their alleged cause of action was based on. two grounds: (1) That the plaintiffs are the owners in fee of one-half of said alley subject to the right of way of the abutting owners and the public. (2) That the strip of land was laid out by its former owner and' of the adjoining lots contiguous thereto-for an alley for the use of the grantees of the abutting lots.
    In 1826 Josiali Bissell, Jr., owned land now within the city of Rochester, which he sub-divided into lots and designated them by numbers. The relation of these lots to each other, to the streets, and to the alley in dispute, is shown by this diagram:

    A map of the land so sub-divided was recorded in 1826 in the -office of the clerk of Monroe county. August 27, 1830, Bissell conveyed to Peter Lynch lot 45 by a deed in which it was described as No. 45 as designated on the map so recorded. A reference to the diagram shows that this lot was bounded on the north by Tremont street. Through mesne conveyances, simply describing the lot by its number, and referring to the map, John Connolly became, April 7, 1856, its owner in fee. February 1, 1860, John Connolly conveyed it to Cornelius C. Dickson by the description contained in the previous deeds. March 15, 1884, the plaintiffs became the owners of this lot by mesne conveyances in which it was described as in the preceding deeds.
    May 1, 1827, Josiah Bissell conveyed to Bartholomew Travers lot No. 42, designating it by its number and referring to the map. December 9, 1839, Travers conveyed it to Patrick Quigley, describing it by its number and referring to the recorded map, and also bounding it on the west by the east line of the alley. October 13, 1845, Quigley conveyed No. 42 to John Connolly, describing it by its number, by reference to the map, and also describing the west line as follows : “ On thé west by the line of the alley, being the same premises conveyed to said Patrick Quigley by Bartholomew Travers.”
    In 1888 Connolly died seized of lot 42 and left a will, which was duly probated November 2, 1888, by which he devised all of his real estate to Henry Anstice. November 10, 1888, Henry Anstice conveyed to the defendant the west half of No. 42 by a deed designating the lot by its number, referring to the map, and also describing it as beginning “ fifty feet west of the northeast corner of the lot of land conveyed to John Connolly by Patrick Quigley. * * * Thence southerly, parallel with the west line of said lot No. 42, to the south line of said lot No. 42; thence westerly, along the south line of said lot No. 42, and the same produced to the east line of lot No. 45 of said tract as laid down on said map ; thence northerly, along said east line of said lot No. 45, to the said south line of Tremont street; thence easterly, along the south line of said Tremont street, to the place of beginning, being the west part of said lot No. 42, and so much of the alley west of and adjoining the lot 42 as laid down on said .map as is included "between the north and south lines of said lot 42 produced westward to the east line of said lot 45, with appurtenances, etc.”
    Under this deed the defendant entered into possession of the land therein described and begun the erection of a building on the disputed strip.

      Edward F. Wellington, for app’lts; F. F. Drake, for resp’t.

       Affirming 30 St. Rep., 461.

   Follett, Ch. J.

The referee found that from 1826 to 1846 the alley was used by the public, and by such use became a public way, but that its use had been abandoned by the public for more than forty years before this action was begun. He also found that between 1846 and 1850 a fence stood on the boundary line between lot 45 and the alley, and that between these dates John Connolly kept the alley closed by a gate at the Trernont street end, planted trees, erected a coal shed thereon, and that from 1850 to-the date of his death in 1888, he was in the actual, exclusive and notorious possession of the land, claiming to own it.

The widow of a former owner of lots 43 and 44, who was sworn on behalf of the plaintiffs, testified, and she was not contradicted, that about fifty years before the trial of this action her husband, bought those lots, moved on them, and shortty after extended the fences across the alley, planted trees thereon, since which the alley had been shut up the most of the time, and before they left those lots the alley had been all closed up for thirty years. For at least thirty-nine years before this action was begun the alley from end to end had been enclosed by fences, occupied and cultivated by the owners of lots 42, 43 and 44.

None of the deeds in the plaintiffs’ chain of title purport to convey any interest in the fee of this strip, and the referee also found that in 1860, when Connolly conveyed lot 45 to Mrs. Dickson, the former was in possession of the alley, claiming to own it; that she took her deed with knowledge of these facts, and that the grantor did not intend to convey, nor the grantee to acquire any title or easement in the alley. Neither the plaintiffs nor any of their grantors have acquired title to the locus in quo, nor to any part of it Simmons v. Cloonan, 81 N. Y., 557.

Clearly the grantees of Bissell, by the map and by the mode in which the lots abutting on the alley were conveyed, acquired rights of way in favor of their respective lots. And it is equally clear that the plaintiffs are now possessed of a right of way unless-lost by the non-user of their predecessors and by the adverse possession of Connolly and his successors.

It is settled that under the statutes of limitation of this state the legal title to land may be lost by its true owner, and be acquired by one holding it adversely for twenty years. Baker v. Oakwood, 123 N. Y., 16; 33 St. Rep., 223. So an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion, from the enjoyment of it for twenty years. Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611; Wash. Eas., 4th ed.,. 718; Yeakle v. Nace, 2 Whart., 123.

.These rules are decisive of this action unless the period within which the plaintiffs may maintain an action is, as is claimed in their behalf, enlarged by the fact that this alley was a public way from 1826 to 1846.

An abutting owner has two distinct kinds of rights in a highway or street. A public one, which he enjoys in common with all other citizens; and certain private rights, which arise from his-ownership of property contiguous to the highway or street. These special rights increase the value of his abutting premises, are private property, and if they are destroyed or greatly injured without due process of law, damages may be recovered for the injury. But a- person cannot maintain an action for an injury to public rights without showing that he has special or private rights which, have been invaded. Abendroth v. Manhatttan R. R. Co., 122 N. Y., 1-14; 33 St. Rep., 475; Lansing v. Smith, 8 Cowen, 146; S. C., 4 Wend., 10; Wood on Nuisances, 655.

An abutting owner’s private rights in a public street may be-lost in case their existence is denied, and they are exclusively possessed for more than twenty years by one who claims to own the fee of the street as against the world. It follows that in no aspect of the case are the plaintiffs entitled to recover.

Entertaining these views, it is quite unnecessary to determine in what time a public street or highway ceases to be such as against the public by its non-user.

The judgment should be affirmed, with costs.

All concur.


author: Landon, J.

text:
    Alfred De Cordova, Resp’t, v. Stephen C. Barnum, App’lt.

      (Court of Appeals, Second Division,

      Filed February 9, 1892.)

    1. Brokers—Stocks—Coklatebal.
    Where a broker holds certain stocks of a customer as collateral for transactions in stocks, and there is no special agreement that he should first realize upon the collateral before bringing an action against the customer for balance due upon said transactions, he is not required to do so before bringing such action.

      2. Same.
    Whatever may be the custom of brokers while a speculation is pending as to selling out to protect his account, it can have no application to the broker’s right to recover what is due him after he has carried his customer’s stocks as long as requested and finally sold them pursuant to his express order.
    Appeal by defendant from a judgment of the general term of the supreme court, first department, affirming a judgment in favor of the plaintiff for $5,264.20, entered upon a verdict directed by the court, and affirming an order denying a motion for a new trial made at the circuit upon the minutes.

      William Bomer, for app’lt; N. P. Wheeler, for resp’t, w

       Affirming 30 St. Rep., 415.

   Landon, J.

The plaintiff was a stock broker, and brought this action to recover of the defendant a balance of account representing the losses upon the purchase and sale of certain stocks made by the plaintiff at the request of the defendant and upon a margin.

The transactions and the amount due the plaintiff upon them were established by the evidence, and the judgment should be affirmed, unless errors to the prejudice of the defendant were committed upon the trial.

It appeared from the evidence that during the pendency of the stock transactions in question, the defendant assigned to and deposited with the plaintiff fourteen shares of the Arms Horse Palace Car Company's stock to protect plaintiff from loss on the stock transactions. The defendant’s speculations were unfortutunate, and he finally gave plaintiff an order to sell out at the best lie could get, and plaintiff did so. The plaintiff still holds the Horse Palace Car stock.

The defendant asked the court to hold or to instruct the jury that the plaintiff could not maintain this action without showing that he had used all reasonable means to realize upon the fourteen shares of stock which he held as collateral; that it was plaintiff’s duty to advertise and sell it, and credit defendant with the proceeds or to return it to defendant before this action was brought. The court refused to hold as requested. The defendant offered to prove the value of the fourteen shares of stock; the plaintiff’s objection to such proof was sustained.

In these rulings no error was committed. The plaintiff held the fourteen shares of Horse Palace Car stock as collateral security to protect him from loss. There was no special agreement that the plaintiff should first realize upon the collateral before bringing an action against the defendant to recover the debt due him, and, therefore, the plaintiff was not required to realize upon the collateral before resorting to this action. Butterworth v. Kennedy, 5 Bosw., 143; South Sea Co. v. Duncomb, 2 Strange, 919; Lawton v. Newland, 2 Starkie, 72; Emes v. Widdowson, 4 Car. & P., 151; Elder v. Rouse, 15 Wend., 218; Colebrook on Collateral Securities, 136; Jones on Pledges, § 590.

The defendant offered to prove by a witness that it was the custom of stock brokers when collateral security was put up as a margin and the account became reduced sufficiently to jeopardize it, to advertise and sell the collateral security and to charge his customer with the balance, and that such was the usage of the plaintiff known to the defendant at the time the margin was put up, and at the time of closing the account.

The court was justified in sustaining the objection to this offer because the plaintiff sold out defendant’s stocks upon defendant’s express order, and not to protect himself because of a shrinking or exhausted margin. Whatever the custom of brokers may be while the speculation is pending, it can have no application to the broker’s right to recover what is due him after he has carried his customer’s stocks as long as requested, and finally sold them pursuant to his express order.

.The other exceptions do not require discussion.

The judgment should be affirmed, with costs.

All concur.