author: Haight, J.:

text:
    WILLIAM R. HART, Respondent, v. HENRY JOHNSON, Appellant, Impleaded, etc.

      .Practice — when an appeal may be taken from an order in supplementary proceedings— (Jode of Civil Procedure, secs. 3050, '8051- — when defects in the service thereof are waived by an appearance — token a refusal to answer pertinent questions authorizes the court lo find that the plaintiff’s rights have been impaired.

    The defendant having refused to answer numerous questions put to him upon an examination before a referee, in proceedings supplementary to execution instituted by the plaintiff, on a judgment recovered against one Bowman and others, an order was made adjudging him to be guilty of a contempt and directing a reference to ascertain and determine the loss or injury occasioned by his contempt. Upon the hearing of an appeal taken by him from this order the respondent contended that the order was not appealable as it was not a final order.

      Reid, that the objection was not well taken; that since the word “final’’was stricken from section 1356 of the Code of Civil Procedure, by the amendment of 1877, the right to appeal in special proceedings is not limited to final orders.
    That a defect in the proof of the service of the original order for his examination could not be urged by the defendant after he had appeared, with his attorney, and submitted to an examination in which he admitted its service.
    That an objection, that the order to show cause why he should not be punished for a contempt was not served personally on the defendant, was waived by the fact that his attorney appeared for him on the return day and procured an adjournment.
    That as it appeared that the plaintiff had recovered a judgment, and that, after an execution issued thereon had been returned unsatisfied, an order had been made for the examination of the defendant Johnson, upon the ground that he had property of the judgment debtors in his possession, his refusal to answer pertinent questions as to whether he had such property of necessity did tend to defeat, impair, impede and prejudice the rights and remedies of the plaintiff and authorized the court to adjudge that they wore in fact so defeated and impaired.
    Appeal from an order of the Wayne Special Term, adjudging Henry Johnson guilty of a contempt, and ordering a reference to ascertain and determine the loss or injury occasioned by his contempt.

      John H: Gamp, for the appellant.

      S. B. 'McIntyre, for the respondent.
   Haight, J.:

Tlie plaintiff, as a judgment creditor of George H. Bowman and others, upon an affidavit showing that the appellant had property of the judgment debtors and was indebted to them in an amount exceeding ten dollars, procured an order requiring him to appear and be examined and to answer'concerning the same. Upon such examination numerous questions were asked, which he declined to answer, and thereupon, upon application to the Special Term, the order appealed from was made.

It is contended, in the first place, that the order is not appealable, for the reason that it is not a final order. Proceedings to punish a person for contempt is a special proceeding, and the mode of review is provided by sections 1356 and 1357 of the Code of Civil Procedure. The appeal in this case was taken under the former section, which provides that “ an appeal may be taken to the General Term of the Supreme Court, or of a Superior City Court, from an order affecting a substantial right made in a special proceeding at a Special Term or a trial term of the same court, or in the Supreme Court at a term of a Circuit Court,-or made by a judge of the same court in a special proceeding instituted before him, pursuant to a special statutory provision, or instituted before another judge and transferred to or continued before him.”

It will be observed that this section provides that an appeal may betaken from “an order affecting a substantial right.” As this section was originally adopted in 1876, it provided that an appeal could be taken from a final order affecting a substantial right, and to the same effect were the provisions of section 1357 as adopted in 1876; but, by the amendment of these sections in 1877, the word “final,” preceding the word “order,” was stricken out. We must assume that the legislature intended, by this amendment, to effect a change in these sections, for unquestionably before this amendment a final order in a special proceeding only could be appealed from. The fact that the amendment strikes out the word “final” necessarily leads to the conclusion that it was intended to enlarge the scope of the sections, so as to permit an appeal from any order that affects a substantial right. The reviser, in his note to these sections, expressly states that this was the object of the amendment. It is true that the worrd “final” is retained in sections 1358 and 1359, and in the absence of the amendment striking out the word final ” in the two preceding sections, it might be considered as explaining what order was meant by those sections, but the reviser in his note also informs us that the word “ final ” in the last two sections was left in by an error. We, consequently, are of the opinion that the right to appeal is not limited to final orders in special proceedings.

It is first contended, on the part of the appellant, that the original order for the examination of Johnson was never served upon him. The affidavits read fail to show a service. The most that they show is that the papers were sent to one Mason, and that he procured another person to serve the papers, and that that person had reported to him that they were served; but Johnson and his attorney appeared, and Johnson was sworn and submitted to an examination without raising any question in reference to the service of the order upon him; and upon the examination when asked the question: “ When was the order in these proceedings served upon you ? ” he answered: “ I can’t give you the date; it was last month or this month; that’s as near as I can state it.” This we regard as a sufficient admission of service to give the court jurisdiction.

Again, it is claimed, that the court acquired no jurisdiction of the proceedings to punish for contempt, for the reason that the order to show cause was not served upon Mr. Johnson. The order was, in fact, served upon the attorney who appeared for him in the supplementary proceedings. The attorney appeared for him upon the return day of the order to show cause, and two adjournments were procured. On the third day to which the proceedings had been adjourned, Johnson, for the first time, objected to the jurisdiction of the court upon the ground that the order to show cause was not served upon him personally. We are of the opinion that he was too late and that his objection was not well taken. The supplementary proceeding was the proceeding upon which the proceeding to punish for contempt was based. An attorney appeared for him in those proceedings, and the attorney who subsequently raised the objection that the order was not personally served, appeared for him on the return day of the order to show cause and procured an adjournment. (Watrous v. Kearney, 11 Hun, 584; same ease affirmed, 79 N. Y., 496; Pitt v. Davison, 37 N. Y., 235.)

Again, it is contended, that the court erred in adjudging that the misconduct of the defendant did actually defeat, impair, impede and prejudice the rights and remedies of the judgment creditor. Undoubtedly there must be evidence before the court that sustains this adjudication. Whether or not the misconduct alleged did in fact defeat, impair, impede and prejudice the judgment creditor is to be determined from the facts and circumstances in the case. (Fischer v. Raab, 81 N. Y., 235.) The fact appeared that Hart was a judgment creditor; that an execution had been returned unsatisfied; that an order had been procured to examine Johnson upon the ground that he had property of the judgment debtors. His refusal to answer pertinent questions as to whether he had such property of necessity did tend to defeat, impair, impede and prejudice, etc., the rights of the plaintiff.

It is also contended that many of the questions were remote and did not bear upon the subject upon which the order for examination had been made. Johnson ivas ordered to appear and answer in reference to his having property of the judgment debtors. Any question tending to show that he had such property is pertinent and proper. The questions which he refused to answer bear upon the question as to whether or not himself and the other judgment creditors had purchased the patent right which was subsequently conveyed to their wives, in view of their insolvency, for the purpose of hindering, delaying and defrauding creditors, and as to whether he, claiming to act as the agent of his wife, had the proceeds of any such property in his possession. If the judgment debtors had transferred property to their wives, in fraud of the right of creditors and such property or the proceeds thereof was in Johnson’s hands, the judgment creditor had the right to a discovery of this property in these proceedings, and the questions calling for the facts in reference thereto were proper and pertinent.

It follows that the order appealed from should be affirmed with ten dollars costs and disbursements.

Smith, P. J., Barker and Bradley, JJ., concurred.

Order affirmed, with ton dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    ALBERT WELLS, by Guardian, Respondent, v. FRANK DAWSON, SEWARD FRENCH and PETER NEENAN, Appellants.

      Practice — upon whom papers must be served in order to stay proceedings on an appeal from a justice's judgment — Gode of Oivil Procedure, sec. 3050, 3051.
    Where a party, appealing from a judgment rendered against him in an action brought in a .1 ustice’s Court, desires a stay of execution he must deliver ilie written undertaking required by section 3050 of the Code of Civil Procedure to the justice or his clerk, and must also serve, upon the respondent, with the notice of appeal, a copy of such undertaking with a notice of its delivery to the justice or his clerk and if an execution has been issued, he must also serve a copy of the undertaking, either certified by the justice or accompanied with an affidavit showing that it is a copy and that the original has been duly filed, upon the officer holding the execution.
    The service of the copy of the undertaking upon the officer holding the execution does not relieve the appellant from the duty of also serving it upon the respondent.
    Appeal from a judgment, in favor of the plaintiff, entered upon the verdict of a jury at the Ontario Circuit.

      JP. Chamberlain, Jr., for the appellants.

      John Gillette, Jr., for the respondent.
   Haight, J.:

This action was brought to recover damages for an alleged false imprisonment of the plaintiff. The defendant, Frank Dawson, had recovered judgment against the plaintiff for the willful and malicious killing of a valuable hound dog belonging to Dawson, before a justice of the peace. After the recovery of such judgment a body execution was issued thereon and delivered to one Ilomer Webb, a constable. Thereafter an appeal was taken from the judgment to the County Court, and an undertaking was filed with the justice and a copy was served on the constable, who held the execution, but it was not certified by the justice to be a copy, nor was there an affidavit attached thereto showing it to be a copy, and that the original had been filed or delivered to the justice. The notice of appeal was duly-served upon the justice and upon the respondent Dawson, but it is a controverted question of fact as to whether or not a copy of the undertaking was ever served upon the respondent Dawson. About three weeks thereafter the defendant French, who was the attorney for Dawson, called upon the constable (Webb) and procured the execution and delivered it to the defendant Neenan, who was a constable, and who took the plaintiff thereunder and conveyed him to the jail of the county, where he was subsequently released by the county judge upon a writ of habeas corpus. The damages claimed in this action is for such arrest and imprisonment. The court, upon the trial, held and decided that as to the defendants, Dawson and French, the plaintiff was entitled to recover, and that the only question for the jury was as to the amount of damages, and refused to submit to the jury the question whether or not a copy of the undertaking on appeal was served upon the defendant Dawson, to which decision the appellants duly excepted. The only question which we consider it necessary to determine upon this appeal is as to whether or not further proceedings upon the execution had been stayed by the service of the copy of the undertaking upon the constable.

Section 3050 of the Code of Civil Procedure provides that if the appellant desires a stay of execution he must give a written Undertaking executed by one or more sureties, etc. * * * A copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal and in like manner. Section 1335 of this act applies to such undertaking.”

Section 3051 provides that “ the' delivery of the undertaking to the justice, or to his clerk appointed pursuant to law, and service of a copy thereof, and of notice of the delivery thereof, stays the issuing of an execution'upon the judgment. If an execution has been issued the service of a copy of the undertaking, certified by the justice or the clerk, or accompanied with an affidavit showing that it is a copy, and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder.”

It is contended on the part of the plaintiff that, under the latter clause of this section, proceedings upon the execution are stayed by the service of a copy of the undertaking upon the constable holding the execution, and that it is not necessary to serve a copy of the undertaking upon the respondent in the action. Such, however, does not appear to us to be the proper construction of the provisions referred to. The two sections must be considered together. The first section referred to, as we have seen, provides that if the appellant desires a stay of execution he must give an undertaking, a copy of which, with the notice of the delivery thereof, must be served with the notice of appeal and in like manner. The words “ delivery thereof ” are fully explained in the next section, which requires the undertaking to be delivered to the justice or his clerk, etc. Section 3048 provides for the service of the notice of appeal upon the respondent, and the words in like manner” appearing in section 3050 requires that the undertaking, with a notice of the delivery of the original to the justice or his clerk, must be served with the notice of appeal upon the respondent, in like manner that the notice of appeal is served. That this is so, still further appears by the concluding sentence of the section, which is that section 1335 of this act applies to such undertaking. That section provides that the respondent may, within ten days after the service of a copy of the undertaking, with a notice of the filing, and so on, serve upon the attorney for the appellant a notice that he excepts to the sufficiency of the sureties. Then follow provisions requiring the sureties to justify and to procure allowance thereof, and for a failure so to do it is the same as if no undertaking had been given. The right to except to the sureties, and to have them justify, is a substantial one, and we have no power to deprive a party of it. If the plaintiff’s construction is correct in reference to the concluding clause of section 3051, then straw bail may be given and the respondent be deprived of the security that he is entitled to under the Code. If a copy of the undertaking is not served upon him he cannot except to the sureties within ten days from the service thereof on him, and require them or other sureties to justify. It appears to us that it might with equal propriety be claimed that it was not necessary for the original undertaking to be delivered to the justice, for under this clause of the section, if execution has been issued, the service of a copy of the undertaking, certified by the justice to be a copy, or accompanied with an affidavit showing that it is a copy, upon the officer holding the execution stays further proceedings thereunder. But such cannot be the meaning of the provisions referred to. If the appellant desires a stay of execution, lie must deliver the original to the justice or his clerk in accordance with the provisions of the Code, and must serve a copy, with the notice of such delivery, upon the respondent, with the notice of appeal, and if an execution has been issued he must also serve a copy of the undertaking, either certified by the justice or accompanied with an affidavit showing that it is a copy, etc., upon the officer holding the execution. It follows that proceedings upon the execution were not stayed unless a copy of the undertaking, with the notice, was served upon the respondent Dawson. The court having refused to submit this question to the jury, the exception thereto was well taken.

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

Smith, P. J., Barker and Bradley, JJ.. concurred.

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


text:
    JOHN MAHLER, Respondent, v. LOUIS SCHMIDT, Appellant, Impleaded, etc.

      Pleadings — causes of action which haw one common point of litigation, in which all the defendants are interested, may he joined— Code of Civil Procedure, sec. 484.
    The complaint in this action alleged that the plaintiff had obtained a judgment against the defendant, Ferdinand Schmidt, upon which an execution had been issued and returned unsatisfied, and that a conveyance of the real estate of such defendant had been made through a third person to the defendant, Anna Maria Schmidt, the wife of Ferdinand Schmidt, without consideration, for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of Ferdinand Schmidt; that said real estate was encumbered by a mortgage given to the defendant, Stearns, by the said Ferdinand and his wife, and that the ■money borrowed was passed to the defendants Fechin, to be invested in real estate, the title to which was taken m their name, and that this was done with the intent of preventing the collection of the plaintiff’s judgment; that a loan had also been made, secured by a mortgage upon the premises, given by Anna Maria Schmidt to one Young, and that the money derived therefrom was passed over into the hands of the defendant, Louis Schmidt, their son, to be held by him with the like intent and purpose.

      Held, that a demurrer interposed by tlie defendant, Louis Schmidt, upon the ground that there was an improper joinder of causes of action, was properly overruled ; as all the parties were interested in one common point of litigation, viz., the fraudulent transfer of the property of the judgment debtor into their hands for the purpose of defrauding his creditors.
    Appeal from an interlocutory judgment entered, in Erie county, overruling a demurrer to the plaintiff’s complaint.

      William L. Jones, for the appellant.

      Nathaniel W. Norton, for the respondent.
   Haight, J.:

The complaint in this action alleges that the plaintiff had obtained a judgment against the defendant, Ferdinand Schmidt; that an execution had been issued thereon and returned unsatisfied, and that a conveyance of the real estate of such defendant had been made through a third person to the defendant, Anna Maria Schmidt, the wife of Ferdinand Schmidt, without consideration, for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of Ferdinand Schmidt. It also alleges that the defendant, Marcelina L. Stearns, has, or claims to have, a lien, upon such real estate by way of mortgage, which was in fact made for the benefit of John and Elizabeth Rechín ; that the mortgage was executed by Ferdinand Schmidt and Anna Maria, his wife, to Marcellus L. Stearns; that it was not made for their benefit, but in fraud of the plaintiff’s rights for the benefit of the defendants, John and Elizabeth Rechin, who obtained the money for which the mortgage, was given as a security, and used the same in paying for other real estate, the title of which was in their names ; that John and Elizabeth Rechin are now indebted. to Ferdinand Schmidt for the amount so obtained upon the mortgage, which should be applied in payment of the plaintiff’s judgment. The complaint also alleges that said real estate is also incumbered by a mortgage executed by the defendant, Anna Maria Schmidt, to Jasper S. Young, which mortgage was not given to secure any debt of either of the defendants, Anna Maria Schmidt or Ferdinand Schmidt, but was given to secure the debt of Louis Schmidt, and for the purpose of delaying, cheating and defrauding the plaintiff; that Louis Schmidt is indebted to the .defendant Ferdinand Sclnnidt, which debt was made for the purpose of cheating and defrauding the plaintiff. The plaintiff prays judgment that the conveyance by Ferdinand Schmidt, through a third person, to Anna Maria Schmidt, be declared to be fraudulent and void, and that the amount that the Rechina obtained through the Stearns mortgage be made a lien upon their land purchased with this money, and that it be ascertained and determined what, if .anything, is due from the other defendants in the action to Ferdinand Schmidt, and that the same may be directed to be .applied in payment of plaintiff’s judgment. The defendant Louis .Schmidt demurs to the complaint upon the ground that causes of .action have been improperly united.

Section 484 of the Code provides that the plaintiff may unite in ■the same complaint two or more causes of action, whether they are .such as were formerly denominated legal or equitable, or both, where they are brought upon claims arising out of the same transaction or transactions, and connected with the same subject of action; but it must appear upon the face of the complaint that all the causes of action so united are consistent with each other, and that they affect all of the parties to the action. This provision of the Code is but declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation. If so, unconnected parties may be joined, even where different relief is sought against them; but if the action is against different persons concerning things of distinct natures, in which some of the parties have no interest, then the action cannot be joined. (Fellows v. Fellows, 4 Cow., 682.)

A judgment creditor may, consequently, bring an action to have a conveyance of the judgment debtor set aside as fraudulent. He may also unite in the same action any persons having liens upon the premises affected by the fraudulent conveyance, and, if the judgment debtor has incumbered the premises by false and fraudulent liens, such liens may be annulled; and if the debtor has placed in the'hands of others property to be covered up and hid for the purpose of keeping it from being applied in payment of his debts, such persons may be made parties and the property followed. All such -.parties are interested in the centering points in issue in the case; they are all concerned in the common point of the litigation, which is the fraudulent transfer of the property of the judgment debtor into their hands for the purpose of defrauding his creditors. (Ogden v. Wood, 51 How., 375.)

The chief question to be considered is, as to the construction to be placed upon the complaint. It is claimed on the part of the appellant that it alleged causes of action for debt as against the Rechins and the appellant, and that if it fails to allege such causes of action, the respondent cannot take advantage of his failure to allege what he had attempted to. But a careful examination of the complaint discloses the fact that no such causes of action are alleged. The pleader evidently intended to charge that the judgment debtor had borrowed money upon his real estate and incumbered it by a mortgage to Stearns, and had passed the proceeds over to the Rechins to be invested in real estate, of which they have the title, and that this was all done to cover up the property with the intent of preventing the collection of the plaintiff’s judgment; and that as to Louis Schmidt, a loan had been made, for which a mortgage was given to Young, and that the money so derived was passed over into the hands of Louis Schmidt, their son, to be held by him with like intent and purpose. This appears to be the causes of action that the pleader intended to state. Whether or not he has successfully stated such causes of action in sufficient detail as to permit him to recover, it is not necessary for us to now determine. If such are the causes of action attempted to be stated, they are actions which may properly be united. The appellant has not demurred upon the ground that no cause of action was stated as against him. His complaint is that the cause of action alleged against him is improperly united with causes of action alleged against other parties. He has no ground to complain if the cause of action attempted to be stated is one which may properly be united with the others.

We are, consequently, of the opinion that the judgment should be affirmed, with costs, but with leave to the appellant to withdraw demurrer and put in an. answer within twenty days upon payment of the costs of the demurrer and of this appeal.

Smith, P. J„ Barker and Bradley, JJ., concurred.

So ordered.


author: Bradley, J. :

text:
    PARMENIO W. CUTLER, Respondent, v. THE JAMES GOOLD COMPANY, Appellant.

      Damages for the conversion, of personal property — measure of — the right of a mortgagor, to redeem a chattel taken by a mortgagee, is not the subject of an attachment.

    In tbis action, brought by the plaintiff to redeem a landau, sold to him by the defendant, from the lien of a chattel mortgage given back to the defendant at the time of the purchase, it appeared that the defendant had wrongfully retaken the landau from the plaintiff, after the latter had tendered and offered to pay the amount due on the notes secured by the mortgage, and thereafter sold the same at public auction. Upon the trial the plaintiff proved that the value of the use of the landau was three dollars per day, and the court allowed as damages one dollar per day up to the time of the decision.

      Held, that it erred in so doing; that the measure of the plaintiff’s damages was the value of the landau at the time it was taken, with interest thereon.
    The defendant alleged in his answer that, after the laudau was taken by him from Auburn to Albany, a warrant of attachment was issued, in an action brought by him against the present plaintiff, under which a levy was made upon the landau by the sheriff of Albany county; that at the time of the sale of the landau under the chattel mortgage the sheriff was present and demanded the payment to him of the surplus of the proceeds of the sale remaining after satisfying the mortgage and the expenses thereon, and that such surplus was paid to the sheriff; that judgment was recovered in that action and an execution issued thereon, upon which he applied the amount so received.

      Held, that evidence offered to prove these facts was properly excluded by the court as immaterial, as the equitable interest of the plaintiff in the equity of redemption was not reached by the levy of the attachment, nor in any way ■affected by it.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the Cayuga Special Term.
    The 'action was brought to redeem a landau from a mortgage, arising out of the following facts : On the 6th day of September, 1884, the plaintiff purchased of the defendant a landau, at the price of $900, paid $500 and gave sixteen promissory notes for twenty-five dollars each for the balance of the purchase-price, payable to the order of defendant at the First National Bank of Auburn, with interest, one of which became due each of the following sixteen months, and to secure such payment the plaintiff gave to the defendant a mortgage on the carriage, by which he sold it to the defendant and further provided that if he should make payment of the notes as they became due it should be void; that the plaintiff should procure, and continue until payment, the insurance of the property for the benefit of the defendant, and in case of default in either respect, or in case the .defendant should sooner choose to demand the property, it should be lawful for the defendant, and it was empowered to take, carry away and sell the property at public or private sale, and retain out of the proceeds of the sale the amount remaining due, but that the plaintiff might have the possession and enjoyment of the property until default, unless the defendant should sooner choose to demand it, and until such demand should be made the possession of the plaintiff would be deemed that of an agent or servant for the sole benefit of the defendant. Ten of these notes were paid at their maturity, and before the next one of the series of notes became due, and on or about the 30th day of July, 1885, the agent of the defendant went to Auburn, where the plaintiff resided, and demanded, took and carried away the landau to the city of Albany.
    At the time of the demand, and before the carriage was taken away, the plaintiff offered to pay to such agent, and then and there tendered to him, the full amount of the notes remaining unpaid, but required as a condition of giving him the money so tendered that the notes should be delivered up to him. This was not done. The agent did not have them in his possession, nor did the defendant afterwards offer to deliver up the notes and take payment. The defendant’s place of business was Albany, N. Y. After the defendant had so taken the carriage into its possession, and on the same day, this action was brought for its redemption. The defendant proceeded to advertise the property for sale, and did, on the 17th day of August, 1885, sell it at public auction in the city of Albany. The trial court directed judgment against the defendant for the value of the landau at the time it was taken ($800), less the amount then unpaid of the notes ($158.10), amounting to $641.90, and for $351 damages for the use of the property, with costs. The defendant appeals.

      Arthur L. Andrews, for the appellant.

      J. Boseerans, for the respondent.
   Bradley, J. :

The facts found by the trial court are supported by the evidence, and they justify the conclusion that the plaintiff was entitled to maintain his action to redeem. His right under the mortgage was that of redemption from the sale, by payment of the amount secured by it. When this right at law of a mortgagor is terminated, there remains in him an equity of redemption, by the recognition of which the courts may afford him relief, until it is extinguished by sale by virtue of the mortgage. The evidence was sufficient to support the plaintiff’s title as found by the court. And while there is some conflict of evidence in respect to the manner that the tender and offer of payment were made, it permitted the conclusion of the court that the plaintiff had tendered, and offered to pay a sum somewhat exceeding the amount of the six unpaid notes. And the fact, that the notes were negotiable and then not due, justified the plaintiff in requiring that they be delivered up as a condition of parting with the money so tendered.

In view of these facts, and as they were found by the court, the taking of the landau by the defendant, transporting it to Albany, and there proceeding to sell it under the mortgage, seems to have been an unreasonable exercise of power, and without the observance of the rights of the plaintiff, to such extent as to justify the court in charging the defendant with costs.

The question of the measure and amount of damages, presented by the exception taken to the conclusion of the court in that respect requires some consideration. The plaintiff proved that the value of the use of the carriage was three dollars per day, and the court allowed as damages one dollar per day up to the time of the decision. There are no special circumstances appearing to take this case out of the ordinary rule applicable to the measure and allowance of damages arising out of the taking and appropriation of personal property, which has a value in its use, nor does it appear that the plamtiff was unable to go into the market and purchase another carriage of like character. Assuming that its place could reasonably have been supplied by another, the value of the use as damages in this case should, we think, have been limited to a reasonable time, within which to do that, after the sale of the carriage was made by the defendant.

In an action for redemption of property, real or personal,, the-plaintiff may recover the rents and profits of the property, or, what is the same thing, for the nse of it during the time he is deprived of such use, but this is because he recovers the property itself, and if personal property it may then be depreciated in value. But here the recovery is not of the property, or of its value at the time of the trial or judgment. The plaintiff recovers the value as of the time it was taken from the possession of the plaintiff. In an action where the plaintiff recovers the value of property as of the time of the trial, or when hy the judgment he may be required to take the property, the reason applies which may enable him to recover as damages, the value of the use of which he has been by the defendant deprived, when there is a value in its use.

Such is the nature of actions to recover the possession of personal property, and such there may be the rule of damages, because the' party recovering may be required to take the return of the property, and the value of it is assessed as of the time of the trial,, and any' depreciation in value or loss occasioned by deprivation, is measured by the damages allowed and recovered. (Brewster v. Silliman, 38 N. Y, 423; Allen v. Fox, 51 id , 562; N. Y. G. & I Co. v. Flynn. 55 id., 653.)

Although there may be circumstances which will permit the recovery of special- damages- of th'c character of those awarded in this instance, not within' the'rule before stated, none appear by the' evidence here to- justify it beyond those before suggested, and interest upon the value of the property, from, and after such reasonable time within which the plaintiff might recover the value of the use of it. The value of personal property is ordinarily depreciated by use, and when the value, as of the time it is taken from the party entitled to it, is adopted as the measure of recovery in that respect, it would seem to be difficult by any well defined rule to apportion the value of the use, and the amount of the concurrent depreciation in value, so as to produce a residue for the use. There is no evidence appearing in this case to furnish any aid in that direction. As a general rule when the measure of damages for the taking and appropriation of property, is the value at the time of the taking, such value and interest upon it constitute the extent of the recovery. And this case, as presented by the evidence, does not require here any particular reference to the exceptions to such rule. ,

The defendant, by the answer, alleges that after the landau was taken to Albany, a warrant of attachment was issued in an action brought by the defendant against the plaintiff, and levied upon the carriage by the sheriff of Albany county ; that at the time of the sale of it upon the mortgage the sheriff was present, and demanded the payment to him of the surplus of the proceeds of the sale remaining after satisfying the mortgage and the expenses thereon; that such surplus was paid to the sheriff, and that judgment was recovered in that action, and execution to him issued, upon which he applied the amount so received by him.

The defendant offered the warrant of attachment, judgment-roll, etc., in that action in evidence; they were excluded and exception taken. The defendant’s counsel contends that the rejection of this evidence was error. The legal title to the property at the time of the alleged levy of the attachment was in the party plaintiff in that action, while the right of the defendant there and plaintiff here was in the equity of redemption only. This equitable interest was not reached by the levy of the attachment in the manner in which it was alleged to have been made. The levy alleged -was made as upon property of a debtor capable of manual delivery, which embraces that only of which he has, in whole or in part, the legal title. (Code Civil Pro., §§ 644, 649.)

The right of the plaintiff at that time was one in action, and dependent on its declaration in his behalf by the court, and it then had no existing tangible quality subject to levy by attachment, and the officer thus seeking to make the levy acquired no lien which he could enforce by action. (Mattison v. Baucus, 1 N. Y., 295; Thurber v. Blanck, 50 id., 80; Anthony v. Wood, 96 id., 180; Lawrence v. Bank, of the Republic, 35 id., 320.) This action was brought and the recovery had upon the theory that the defendant had no right to extinguish by sale of the property the equity of redemption of the plaintiff, and such was the effect of the judgment. It would seem to follow that the defendant could not through the sale produce a surplus of proceeds, or any proceeds for the plaintiff, subject as such, to application by means of the process of attachment and of execution upon the judgment which the defendant recovered against the plaintiff. (Thurber v. Blanck, 50 N. Y., 80.) The evidence so offered was, therefore, wholly immaterial in this action, and its exclusion was not error. No other question requires the expression of consideration, and none of the exceptions, other than that relating to the damages, seem to have been well taken. ,

The judgment should be reversed and si new trial granted, costs to abide the event, unless the plaintiff stipulate to reduce the recovery, exclusive of costs, to $641.90, and interest thereon from the 30th day of July, 1885, and in that event, the judgment must be so modified, and as so modified affirmed, without costs of this appeal to either party.

Smith, P. J., Barker and Haight, JJ., concurred.

So ordered.


author: Bradley, J.:

text:
    THE METROPOLITAN TRUST COMPANY OF THE CITY OF NEW YORK, Appellant, v. THE TONAWANDA VALLEY AND CUBA RAILROAD COMPANY and Others, THE FARMERS’ LOAN AND TRUST COMPANY, Impleaded, Respondents.

      Action to foreclose a mortgage — senior incumbrancers may be made parties defendant— right of such an incumbrancer to demand a foreclosure of his mortgage as a counterclaim — Oode of Oiml Procedure, sees. 500, 521.
    This action was brought to foreclose a mortgage given by the Tonawanda Yalley and Cuba Railroad Company, a corporation formed by the consolidation of three companies, known as the Tonawanda Yalley Railroad Company, the TonawandaYalley Extension Railroad Company and the Tonawanda Yalley and Cuba Railroad Company. The new company assumed the payment of certain bonds theretofore issued by the Tonawanda Yalley Railroad Company and the Tonawanda Yalley Extension Railroad Company, payment of which was secured by mortgages upon the property and railroad of each of said companies, given by them to trustees. The plaintiff made the trustees of these two mortgages parties defendant, and sought to have the amount of the outstanding bonds determined in order that they might be paid out of the proceeds of the sale, or that the sale might be made subject to such lien, as might be just and proper. The defendant, The Farmers’ Loan and Trust Company, the trustee of the mortgage given by the Tonawanda Yalley Railroad Company served an answer, alleging all the facts essential to the maintenance of an action to foreclose the mortgage given by that company to it, and demanded a judgment for tlie usual relief in such case, which answer was served upoD the attorney for the plaintiff and the other defendants.
    Upon the report of a referee finding all the facts requisite to the foreclosure of both mortgages, and that the plaintiff’s mortgagor was insolvent and that its road could not be sold in parcels without prejudice to the interests of the bondholders, a judgment was entered directing that the property embraced in the plaintiff’s mortgage be sold as an entirety, subject to the Tonawanda Valley Extension Railroad Company’s mortgage; and that unless the purchaser, within ninety days, should pay the amount secured by the Tonawanda Valley Railroad Company, with costs, that the property covered by the last mentioned mortgage might be sold separately to pay off the amount due on it, with costs, and that the purchaser of the entire property should not receive a deed for the entire properly, pursuant to such sale, until the Tonawanda Valley Railroad Company’s mortgage, with costs, should have been paid, unless such deed, by its terms, should be made expressly subject to the provisions of the judgment in regard to a separate sale of the property embraced in the Tonawanda Valley Railroad Company’s mortgage in case of the failure of the purchaser to pay it.

      Held, that the defendant trustee could properly set up in the answer, and make available by the judgment, the matter alleged, and the demand for affirmative relief by way of foreclosure of its mortgage and a sale of the premises and property covered by it.
    That as the alleged claim of the defendant embraced both a cause of action against the plaintiff and against some of the co-defendants, and was connected with the subject of the action, and in some degree might go to diminish the plaintiff’s recovery, as measured by the relief within the demand and allegations of the complaint, the relief asked for and obtained by this defendant came within the moaning of a counter-claim as defined in the Code of Civil Procedure.
    That the practice, as applied to a case of this character, and the judgment, as rendered therein, were not in contravention of any provision of the statute providing for the foreclosure' of mortgages by action and the sale of the premises pursuant to judgments therein.
    Appeal by the plaintiff from a portion of a judgment entered in Allegany county on the report of a referee.
    The action was brought to foreclose a mortgage made by the defendant, the Tonawanda Valley and Cuba Railroad Company, to James D. Fish, as trustee, to secure the payment of its bonds to the amount of $500,000; the plaintiff was afterwards substituted in' place of Fish as such mortgagee.
    That railroad company was created by the consolidation of three companies before then organized, known as the Tonawanda Valley Railroad Company, tlie Tonawanda Valley Extension Railroad Company, and tlie Tonawanda Yalley and Cuba Railroad Company. Before such consolidation, the Tonawanda Yalley Railroad Company had made á mortgage upon its railroad and property to the defendant, the Farmers’ Loan %nd Trust Company, as trustee, to seciire the payment of its bonds to the amount of § LOO,000 ; and the Tonawanda Yalley Extension Railroad Company had made a mortgage on its railroad and property to the defendant James D. Fish, as trustee, to secure the payment of its bonds to the amount of §70,000. When the defendant railroad company was organized, it assumed the payment of the bonds of those other companies, then outstanding; and at the time of the commencement of this action, default had been made in the payment of the interest on the bonds of all those companies.
    The plaintiff in the complaint alleges a desire to have the amount of the outstanding bonds of the Tonawanda Yalley and the Tonawanda Yalley Extension Railroad companies, and the extent of the lien of those prior mortgages, and each of them, ascertained and determined, that the amount of them may be paid out of the proceeds of the sale, or that the premises and property covered by them may be sold subject to such lien, as may be just and proper, and that the Farmers’ Loan and Trust Company and Fish are made parties defendant for that purpose. It is alleged in the complaint that defendant railroad company has made default in the payment of interest upon its outstanding bonds and those of the other companies ; and amongst other relief, the plaintiff demands judgment directing a sale to be made “ subject to the lien of the said prior mortgages to the said, the Farmers’ Loan and Trust Company and James D. Fish, as trustee as aforesaid, on the promises covered by them; or that the amount of said lien be paid, satisfied and discharged out of the proceeds of such sale, as may be for the best interests of the parties to this action.”
    The defendant, the Farmers’ Loan and Trust Company, by answer alleges, amongst other things, all the facts essential to the maintenance of an action to foreclose the mortgage made by the Tonawanda Yalley Railroad Company to it, and demands judgment for the usual relief in such case, which answer was served upon the attorneys for the plaintiff and the other defendants.
    The referee found all the facts requisite to the foreclosure of both mortgages, also that the defendant railroad company is insolvent ; that its road could not be sold in parcels without prejudice to the interests of the bondholders, and directed judgment of foreclosure of the plaintiff’s mortgage, and of the Farmers’ Loan and Trust Company mortgage, with qualified provisions as to the sale, which, as declared by the judgment, were that the property embraced in the plaintiff’s mortgage be sold as an entirety, subject to the Tonawanda Yalley Extension Railroad Company mortgage, and unless the purchaser, within ninety days, should pay the amount secured by the Tonawanda Yalley Railroad Company mortgage, with costs, that the property covered by the last mentioned mortgage may be sold separately to pay off the amount due on it, with costs, and that the purchaser of the entire property shall not receive a deed.for the entire property, pursuant to such sale, until the Tonawanda Yalley Railroad Company mortgage, with costs, shall have been paid, unless such deed by its terms shall be made expressly subject to the provision of the judgment in regard to a separate sale of the property embraced in the Tonawanda Yalley Railroad Company mortgage in case of failure of the purchaser to pay it. And the judgment contains various other provisions, to which it is unnecessary to particularly refer for the purposes of the questions here.
    The plaintiff took exceptions to the conclusions of law, and to refusal to find as requested. The plaintiff appeals from the part of the judgment granting such relief to the defendant.

      Thomas G. Hillhouse., for the appellant.

      Herbert B. Ttorner, for the respondents.
   Bradley, J.:

The plaintiff was at liberty to make the senior mortgagees parties defendant so as to have the amount secured by their mortgages ascertained and determined by the judgment, that they might be paid out of the proceeds of the sale, and their lien discharged, or that the sale might be made subject to the known amount of their liens. (Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige, 284; Vanderkemp v. Shelton, 11 id., 29 ; Holcomb v. Holcomb, 2 Barb., 20 ; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y., 127.) The desire expressed in the complaint is to have .the amount of those mortgages ascertained, that the amount may be paid out of the proceeds of the sale, or that the premises may be sold subject to their liens, and judgment is in like manner in the alternative demanded.

The question is, whether the defendant, the Farmers’ Loan and Trust Company, could properly set up in the answer, and make available by the judgment, the matter alleged, and the demand for affirmative relief by way of foreclosure of its mortgage, and sale of the premises and property covered by it. This defendant could have brought its action in the nature of a cross bill for such relief. The right to seek it as a defendant, is dependent wholly upon the statute. And the inquiry arises whether it is a counter-claim within the meaning of the statute, which provides that the answer may contain a statement of new matter constituting a counter-claim ( Code Civil Pro., § 500), that the counter-claim “ must tend in some way to diminish or defeat the plaintiff’s recovery,” and must be a cause of action “ against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action.” And such cause of action must arise “out of the contract, or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action; ” or 2. “ In an action on contract, any other cause of action on contract, existing at the compiencemerit of the action.” (Id., § 501.) And in such case, when entitled thereto the defendant may have judgment for the affirmative relief demanded in the answer. (Id., § 504.) The subject of the plaintiff’s action is the mortgage made by the consolidated company, and the property covered by it, which embraces that in the senior mortgage of the defendant, and the purpose of the action is to foreclose the mortgage, and sell the property. It is contended, on the part of the plaintiff, that the cause of action alleged in the answer is not a cause of action against the plaintiff, and does not tend to diminish, or defeat the plaintiff’s recovery, and that it is not connected with the subject of the action.

The plaintiff, as a junior mortgagee, would be a necessary party defendant, in an action to foreclose the senior mortgage. That situation seems to be sufficient to constitute a cause of action against the plaintiff within the meaning of the statute. The affirmative relief demanded by the answer, and given by the judgment, in some sense qualifies or diminishes the plaintiff’s recovery in view of the allegations of the complaint and the relief demanded by it, and yet preserves all the rights to which the junior mortgagee is entitled, and affords to the senior one only such priority as it is entitled to. And this is a legitimate result, if the matter alleged in the answer is in other respects within the requirement of a counter-claim.

In Vassear v. Livingston (13 N. Y., 248), the plaintiff was not a proper party to any action in favor of the defendant upon the claim alleged; and it was not a counter-claim, because it was no cause of action against the plaintiff. And to the same effect is Frick v. White (57 N. Y., 103-107). While the defendant is not a necessary party defendant to the action for the foreclosure of the plaintiff’s mortgage, and the defendant’s cause of action may not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, it seems to be connected with the subject of the action. The requisite of connection of the defendant’s cause of action with the subject of the plaintiff’s action is not defined or restricted by the provisions of the statute. There must only be some connection. And it has been said that it “ must have such relation to, and connection with, the subject of the action, that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim, should be settled in one action, by one litigation.” (Carpenter v. Manhattan Life Ins. Co., 93 N. Y., 556)

The theory and policy of the statute, providing for the disposition of controversies by actions, is that the rights of all parties to an action as between the plaintiff and all or any of the defendants, and as between the defendants themselves, shall be adjusted and declared by the judgment, when the relation between them and the subjects involved, are such as to permit it to be done within the practice prescribed. (Code Civil Pro., § 1204; Derham v. Lee, 87 N. Y., 599.)

In Rafferty v. Williams (34 Hun, 544), cited by the plaintiff’s, counsel, the controversy presented by the answer was wholly between the defendants, and had no relation to the subject of the action ; and the court held that it was not within section 1204 of the Code. But prior to the present Code, the affirmative relief sought by the defendant in this action was not available as a counter-claim, because the practice did not provide for service of pleadings by one defendant upon another, and thus permit to be brought before the court, upon the cause of action so alleged by a defendant, the other parties defendant requisite to the determination of the claim. The statute now, in view of such practice, provides that “ where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination, must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants affected by the determination,” etc, (Code Civil Pro., § 521.) This service was made, and all the parties requisite to the relief, so far as appears, were thus brought into the con-, troversy tendered by the defendants answer of the alleged counterclaim. That section and this proceeding under it extended the application and practical effect of Code of Civil Procedure (§ 1204). (Kenney v. Apgar, 93 N. Y., 539, 547). And as the alleged claim of the defendant embraces both a cause of action against the plaintiff and against some of the co-defendants, and is connected with the subject of the action, and in some degree may go to diminish the plaintiff’s recovery as measured by the relief within the demand and allegations of the complaint, the relief asked for and obtained by this defendant seems to come within the meaning of the statute defining a counter-claim. This does not necessarily result from, or require the conclusion of any enlargement of the power of the court by the provisions of section 521; but, as a matter of practice, extended and regulated by that section, the manner of the exercise of the power of the court is enlarged and the means are provided to parties defendant in proper cases to extend the operation and effect of the provisions of section 1204, and embrace within the term counter-claim some claims which, before then, the practice provided by the statute did not permit to be made available as such. (Albany Savings Inst. v. Burdick, 87 N. Y., 40.)

The practice as applied to a case of this character, and the judgment as rendered in this action, we think, are not in contravention of any provision of the statute providing for the foreclosure of mortgages by action and the sale of the premises pursuant to judgments therein. And there seems to be no impropriety in providing for and pursuing the practice adopted in this case. The rights of the parties are as effectually preserved in the one as they could have been in two distinct actions; and it is not seen that the interest of the parties represented by the plaintiff are prejudiced by the dual relief given by the judgment.

There is no force in the objection that the answer did not, in express terms, define as a counter-claim the matter set up as such, inasmuch as it distinctly appears by the relief demanded that it was intended as a counter-claim. None of the plaintiff’s exceptions presented here for consideration seem to have been well taken.

The portion of the judgment appealed from should be affirmed.

Barker and Haigiit, JJ., concurred; Smith, R. J., not sitting.

Judgment affirmed, with costs.


text:
    ELIZA M. ORR, Respondent, v. MARGARET McGREGOR, Administratrix, etc., of WILLIAM McGREGOR, Deceased, Appellant, Impleaded with THE ROCHESTER SAVINGS BANK.

      Deposit of money in a savings ban7c, by one person to t7ie credit of another — when the depositor does not thereby lose his title to the money.

    In June, 1879, the plaintiff deposited in a savings bank the sum of $140, and received a pass-book, in which that amount was credited to William McGregor, and thereafter she deposited- the sum of fifteen dollars to his credit in the same pass-book. In the pass-book were the by-laws of the bank, providing that moneys deposited should be drawn out by the depositor or some one legally authorized by him or by his legal representatives, but that no person should receive any part of it without producing the pass-book, and that all payments made to persons producing the deposit-book should be deemed valid payments to the depositors. The money deposited belonged to the plaintiff, who took and retained the pass-book in her possession. McGregor died in October, 1885, without having been informed of the deposit of the money to his credit.
    Upon the trial of this action, brought by the plaintiff to compel the administratrix of McGregor to draw the money from the bank and pay it tb her, the -plaintiff testified, in substance, that when she deposited the money she intended to give McGregor the money, but not to deliver it to him while she was living; that he was not to have it so .long as she lived, although if they had become good friends sne might have handed him the book; that she had not. then decided that the money should be his after her death.
    The trial court found that the plaintiff did not part with the title to the iund,, and that McGregor never acquired any title to it, and directed a judgment, awarding to her the relief sought.

      Held, that the judgment should be affirmed.
    While the deposit of one’s own money in a savings bank to the credit of another, without any qualification expressed at the time, is of itself prima fade evidence of a gift to the latter of the fund deposited, yet an intent to the contrary may' be shown.
    The retention by a depositor, of a pass-book containing such provisions as to. the withdrawal of moneys deposited as were contained in the one given to the plaintiff, and his failure to notify the person to whom the credit is given, indicate an intention on the part of the depositor not to perfect the gift' at the: time of making the deposit.
    Appeal from a judgment, entered on the decision of the Ontario-Special Term.
    The action was brought against the appellant and the Rochester Savings Bank, to require the former to execute to the plaintiff a check or order on the bank, and for direction to it to pay an amount standing in the bank to the credit of William- McGregor, the defendant’s intestate. The appellant alone defended. The trial court directed judgment for such relief in favor of the plaintiff j from which this appeal is taken.

      Ilenry M. Field, for the appellant.-

      J. Henry Metcalf \ for the respondent.
   Bradley, J.:

The plaintiff deposited in the Rochester Savings Bank, -in June,, 1879, $140, and took a deposit pass-book in which the amount was credited to William McGregor, and in December following she deposited fifteen- dollars, which was, in like manner, credited to-him- in the-pass-book. McGregor died in October, 1885, and the defendant,, his widow, became administratrix of his estate. She declined to execute to the'plaintiff a-check to enable her to draw the money from the bank. And thereupon this action was brought.. On its deposit the money became that of the bank, and the relation-of debtor and creditor was apparently created between it and William McGregor. At the time of the deposit the money belonged to the plaintiff, who took and retained the pass-book in her possession, and, so far as appears, McGregor was not advised that the money was, or had been deposited to his credit. As between him and the bank, he was by this credit to him, prima fade, the creditor of the bank, and entitled to draw upon it for the amount of the fund.

The statute, however, provided that the money could not be drawn without the production of the pass-book (Laws 1875, chap. 371, § 32, as amended by Laws 1878, chap. 317, § 1), subject to the power of the trustees by means of by-laws to dispense with its production in certain exceptional cases. (Id.) The by-laws contain the unqualified requirement that it be produced. And in the pass-book delivered to the plaintiff appeared the by-laws of the bank, to the effect that money deposited shall be drawn out only by the depositors or some one legally authorized by them, but no person shall receive .any part of it without producing the pass-book. That on the decease of a dejidsitor, the amount to his credit shall be paid to his legal representatives; and that all payments made to persons producing the deposit-book shall be deemed valid payments to the depositors. Being the owner of the money, the plaintiff at the time of making the deposit had the right to apply such terms and conditions to the right to draw it from the bank as she pleased. The by-laws contained in the pass-book constituted a part of the contract under which the deposit was made, and the book imported the liability of the bank arising out of the transaction of the deposits made by the plaintiff. (Smith v. Brooklyn Savings Bank, 101 N. Y., 58.)

The question here is, whether this sum deposited became an accomplished gift of the money, or the liability of the bank for its .amount, to William McGregor. And in view of the various .authorities on the subject, it is not free from difficulty. The fact that the deposit was made to his credit is evidence of his right to it, but the attending circumstances are competent evidence upon the question of the intent of the depositor in so making it. (Mabie v. Bailey, 95 N. Y., 206; Brabrook v. Boston, etc., Savings Bank, 101 Mass., 228.) It does not appear that the plaintiff said anything at the time of making the deposit qualifying the purpose of the credit to McGregor. She took the pass-book into her possession. It contained the contract which represented the liability of the bank to pay, and in. it was expressed the terms upon which the right to draw the money depended. This denied to him the right to draw it without the production of the book. The fact that the plaintiff kept the book in her possession and under her control may bear somewhat upon her intent. And in respect to her purpose, she, upon the trial, was asked and answered questions as follows: At the time you deposited the money, did you intend to give him the money by depositing it in the bank? A. Yes; if I hadn’t I wouldn’t have put it in his name. Q. Did you intend to deliver it to him? A. I never intended to deliver it to him while I was living. Q. You mean that you intended the money should be his after your decease; A. I never had come to the decision, but never as long as I lived he wasn’t going to have it; it might probably have happened if he and I had got good friends, I might have handed him the book.”

The trial court found that the plaintiff did not part with the title to the fund by the depositing it in the bank to the credit of McGregor, and that he never acquired title to it. And we are inclined to think this conclusion was supported by the evidence. If she intended at the time, and by the act of deposit, to give him the money, his right to it then became complete, although she retained the pass-book, and she would be deemed to have held it in trust for him. But if her intention was to not then consummate the gift, and with that view she retained the possession of the book, the act of donation was not an accomplished fact, but may have rested in her intention to complete it at some future time. The evidence seems to permit such an inference. The book represented the undertaking of the bank to pay, as well as the conditions which must be observed in seeking payment from it, and had the character of a chose in action. It is in that view that it has been held that a gift o^ a fund deposited, or the liability of such a bank to pay it, may be made and consummated by delivery to the donee of a pass-book, with intent to thus invest title in him. (Camp’s Appeal, 36 Conn , 88; S. C., 4 Am. R., 39; Tillinghast v. Wheaton, 8 R. I., 536; S. C., 5 Am. R., 621; Hill v. Stevenson, 63 Me., 364, S. C., 18 Am. R., 231.)

Our attention lias been called to no case presenting a state of facts similar to that in this one in support of the defendant’s contention. In People v. Bank (36 Hun, 607) the pass-book was delivered to the party credited with the deposit, and checks were drawn by her on the fund, and paid. It was there held that the gift was perfected by the transaction, and that there was no opportunity to effectually assert a mere intent of the depositor to the contrary. The withholding the pass book, and knowledge of the deposit from the defendant’s''intestate, may be treated as some evidence of a purpose not to vest title in presentí.

In Howard v. Savings Bank (40 Vt., 597) the book and knowledge of the deposit were withheld from the person credited with it, and the depositor died without having asserted any right to the money, or made any effort to recall the gift. The conclusion was that title passed to the donee. And in Blasdel v. Locke (52 N. H., 238) information was given by the depositor to the donee of the gift of a sum deposited in a savings bank to the credit of the latter. The gift was held effectual, although the depositor retamed the book in her possession until her death. In that case it appeared that a by-law of the bank provided that deposits should be drawn only by the depositors or persons authorized by them. The determination of those cases was evidently made upon the ground that the circumstances referred to constituted evidence of intent of the depositors to make the gifts.

In Pope v. Burlington Savings Bank (56 Vt., 284; S. C., 48 Am. R., 781) the deposit was made by the plaintiff’s testator to the credit of C., payable to himself. He retained the deposit-book, and' the money could not be drawn without its production. Held, not a gift, for the reason that the depositor did not part with dominion over the liability of the bank to pay, and that it could not be treated as a trust in behalf of C. In Robinson v. Ring (72 Me., 140; S. C., 39 Am. R., 308) it was held that a deposit of one’s own money in a savings bank to the credit of another^ without any declaration of trust contemporaneously or subsequently made by the depositor, who retains the deposit-book in his possession, creates no gift or trust to or in behalf of the person to whose credit the fund is placed. The view taken by the courts in tho cases before cited generally is that the question is one of intent, which is not necessarily governed by the form given to the deposit. (Northrop v. Hale, 72 Me., 275.)

When the purpose is expressed in the deposit to create a trust in behalf of another, it is effectual to create that relation and to render the donee the beneficiary of the fund. This was the situation presented in Martin v. Funk (75 N. Y., 134), where the depositor took the relation of trustee for the person in whose behalf the deposit was made. And the retention by .him of the possession of the pass-book was consistent with such relation. To the same effect are Mabie v. Bailey (95 N. Y., 206) ; Smith v. Lee (2 T. & C., 591); Ray v. Simmons (11 R. I., 266; S. C., 23 Am. R., 447); Minor v. Rogers (40 Conn., 512; S. C., 16 Am. R., 69).

While we think that the deposit of one’s own money in a savings bank to the credit of another, without any qualification expressed at the time, is of itself prima facie evidence of a gift to the latter of the fund deposited, an intent to the contrary may be shown, and the retention by the depositor of the deposit-book (like the one in question) is some evidence of intent not to perfect the gift at the time of making the deposit. In this fact, and in withholding knowledge from the person to whom the credit is so given, may indicate a purpose as of' the time the deposit is made not to surrender dominion over the fund to the latter.

In this view the element in the contract is essential which denies the right to draw the money without the production of the book. And in this one it is also provided that payments made to persons producing the deposit pass-book shall be deemed valid payments to the depositors. It is, however, unnecessary to express any opinion of the construction to which that provision of the by-laws, in view of their other provisions, is entitled. The question of fact in respect to the intent with which the deposit was made by the plaintiff, presented by the evidence, enabled the trial court to determine that it was not a consummated gift to the defendant’s intestate.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Judgment affirmed, with costs.


author: Smith, P. J.;

text:
    JOSEPH F. MOORE, Appellant, v. R. LE BARRE GOODWIN, Respondent.

      Contract to make'a crayon portrait which is to he satisfactory to the person ordering it — neither the opposite pwrty nor the jury can decide that he ought to he satisfied with the portrait made.

    Appeal from an order denying a motion for a new trial made upon the minutes of the ]'ustice before whom the action was tried.
    The action was brought to recover the amount of a promissory note made by the defendant to the plaintiff, dated May 18, 1882, for fifty dollars. The defendant, alleged that the note was given for money advanced by the plaintiff upon an agreement by which the defendant contracted to make for the plaintiff crayon portraits of himself and wife at the price of sixty dollars.
    It appears that the portraits were to be made from photographs delivered to the defendant for that purpose, from which ;he was to advance them as far as practicable, and was to finish them from observations from life. The portraits were to be in all respects, to the plaintiff, satisfactory likenesses of himself and wife, and in case they were not the plaintiff was to be under no obligations to accept and pay for them, and, in that case, the money advanced on the note was to be repaid to him. In December following the defendant brought the portrait to Corning, where the plaintiff lived, and left them at a hotel there, and so notified the plaintiff. The plaintiff on seeing them was not satisfied with them, and in a few days wrote the defendant that they were not such as he had contracted for, and ..that he declined to receive them and requested immediate payment of the note. The defendant received the letter, but did not answer it, and nothing further occurred about the matter until this suit was begun in September, 1883. The portraits were not completed when left at Corning, nor were they then such as the contract called for. At the close of the defendant’s testimony, and again at the close of the entire evidence, the plaintiff’s counsel asked the court to direct a verdict in favor of the plaintiff for the amount of the note. The requests were declined and the plaintiff excepted.
    The court submitted it to the jury to say whether the plaintiff refused to permit the defendant to proceed to the completion of the pictures, assuming that they were not completed; and he instructed them, in substance, that if the plaintiff did so refuse he could not avail himself of the defendant’s non-performance of the contract^ provided the pictures were then such as that he would have be'én required to accept them after they were finished. And he further instructed them, in substance, that the question of refusal depended upon the construction of the plaintiff’s letter in view of the circumstances disclosed by the evidence. The plaintiff’s counsel excepted to the instruction in the charge that the j’ury might say that the defendant had made out a right to claim damages on the ground of a breach of the contract caused by the plaintiff.
    The General Term, after a careful- examination of the case,, said r “We are of the opinion that the exceptions above stated were- well taken, for the reason that there is no evidence that the- defendant requested or proposed to do anything more to the pictures- after he left them at Oorning, or that the plaintiff refused to> permit him to do anything more to them, but that the transaction was simply an offer on the part of the defendant to deliver the- pictures as they were then, and a refusal on the part of the plaintiff to accept them. * * *
    “ The court also charged the j’ury, in substance, that if the agreement- was that the portraits should be satisfactory to the plaintiff, the meaning of that provision of the contract was riot that the caprice of the plaintiff should control, but that the painting must be a good one arid come up to the standard required; and if it does that, he cannot say by caprice that he will not take it, otherwise there would be no force in contracts. And the charge continued in the following language: ‘ When a party will say, ‘ I will not accept it if it is not satisfactory,’ it means that the picture must be such that it will, come within the contract, and be such as would be required to be satisfactory; and it would be, if it was- made as the contract fairly required.’

      “ Without questioning the accuracy of this charge as applied to certain classes of contracts, we think it is not applicable to the case in hand, so far as it conveys the idea that if the jury think the party ought to have been satisfied he is bound, although not satisfied. We understand that when a person contracts to perform work to the satisfaction of the other party to the contract, and the subject involved is a matter of taste, like the painting of a portrait, the rule is that the person for whom the work is to be done is the sole judge, and if he refuses to accept the work on the ground that it is not satisfactory, his decision cannot be questioned. One of the terms of the contract being that the work shall be satisfactory to him, if it is not so the contract is not performed, and he is not liable. lie did not agree to accept what might be satisfactory to others unless it was satisfactory to him, and the contract does not give to the opposite party, or to a jury, nor to any other person, the- right to decide whether he is, or ought to be satisfied. These views are sustained by the case of Zaleshi v. Clarh (44 Conn., 318), where the work to be done was the making of a plaster bust of the deceased husband of the defendant. In Gray v. The Central Railroad Company of New Jersey (11 Hun, 70), they were applied in the ease of a contract for the purchase of a steamboat, ‘ provided upon trial they (the purchasers) are satisfied with the soundness of her machinery, boilers.’ etc. (See, also, the cases there cited in the opinion of Davis. P. J., p. 73.) -
    “We question, however, whether this misdirection, if it be one, is ground for setting aside the verdict, inasmuch as it does not appear to have been excepted to at the trial, or to have been made a ground of the motion for a new trial before the trial judge. We have commented upon it in view of the possibility that the case will be tried again.
    “ Upon the ground first stated herein, the order should be reversed, and a new trial granted, costs to abide event.”

      A. Hadden, for the appellant.

      R. Le Harre Goodwin, for the respondent.
   Opinion by

Smith, P. J.;

Barker and Haight, J"J., concurred; Bradley, J., not sitting.

Order reversed, and new trial granted, costs to abide event.


author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. KATE STANLEY, Respondent, v. GEORGE W. VAN SICLEN and Others, as Trustees of Common Schools, etc., Appellants.

      By-laws of a board of education, which conflict with subsequent legislation, are repealed by it — 1884, chap. 248 — a teacher unlawfully removed may apply for a mandamus to be permitted to discharge her duty.

    Section 1 of chapter 248 of 1884 provides, among other things, that the colored schools in the city of New York, now existing and in operation, shall hereafter be classed and known and be continued as ward schools and primaries, with their present teachers, unless such teachers are removed in the manner provided by law." The relator, who was, at the time of the passage of the act, an assistant teacher m a colored school, was thereafter removed by the trustees of common schools for the ward in which the school was situated, upon the ground that under the by-laws of the board ot education the relator could not be employed as an assistant teacher in the grammar department of the school after the passage of the act, as there was then in that department two teachers who were senior to her in rank, and the average attendance of pupils would not, under the by-laws of the board, justify the employment of another teacher.

      Held, that as it was conceded that the relator had not been removed in the manner provided by the act, her removal was unlawful.
    That as the intention of the legislature to retain the teachers in the colored schools, unless removed m the manner provided by law, was clearly expressed in the act, it necessarily repealed any by-law of the board of education, or any rule of government or modus operandi by which the school’s officers, without the removal required, could dispense with the services of the teacher.
    That the relator was entitled to apply for a writ of mandamus to compel the respondents to recognize the relator and permit her to perform her duty as a teacher.
    That the fact that the relator had sought employment as an additional teacher, and accepted payment as such, did not involve or amount to a resignation, or prevent her from applying for the writ.

      The People ex rel. Gilchrist v. Murray (73 N. Y., 585) followed.
    Appeal from an order of the Special Term, granting a peremptory writ of mandamus, requiring the appellants to recognize the relator as a teacher in ward school No 81, and to permit her to preform her duty as such teacher, and to deliver to her such books and papers, in their possession or under their control, as may be necessary to enable her to perform her duty as such teacher.

      J¿. G. J3eardslee, for the appellants.

      W. J. Waterbury, for the respondent.
   Brady, J.:

Prior to the passage of the act of the legislature on May 5, 1884 (chap. 248), the relator was an assistant teacher in colored school No. 4, which was located in the sixteenth ward. She was appointed by the board of education, which then had sole jurisdiction of the school, and which was therefore not subject to the by-laws and regulations applicable to ward schools. The act mentioned changed the status of this school as appears from its provisions which are as follows:

Section 1. The colored schools in the city of New York, now existing and in operation, shall hereafter be classed and known and be continued as ward schools and primaries, with their present teachers, unless such teachers are removed in the manner provided by law, and such schools shall be under the control and management of the school officers of the respective wards in which they are located in the same manner and to the same extent as other ward schools, and shall be open for the education of pupils for whom admission is sought, without regard to race or color.

Sec. 2. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.

Seo. 3. This act shall take effect immediately.

In pursuance of this law, No. é became a ward school designated No. 81, and subject to the control and management of the school officers .in the ward in which it is located and opened for the education of pupils, without regard to race or color. The relator was not removed in the manner provided by law, but shut out by a circuitous mode deemed justifiable and necessary under the act as understood by the authorities in power. It was that, inasmuch as under the by-laws of the board of education, the relator could not be employed as an assistant teacher in the grammar department of the school after the passage of the act, there being then in that department two teachers who were senior to her in rank, and the average attendance of pupils not justifying another teacher according'to such by-laws, she could not longer be continued as a teacher. If this circumlocution be sustained, then the act is overridden, inasmuch as the relator and others of her class were by it continued in office until removed in the manner provided by law. Tllis is not a removal in the mode suggested, and it is not pretended that it was. "Whether there would be employment for the teachers embraced in the provisions of the act in the schools thus changed in status does not seem to have been doubted. Indeed, it is quite apparent that the change contemplated was one only of jurisdiction and exclusiveness, the distinction of color being abolished. In other words, the schools were to be kept intact in organization, but placed under the control of ward school officers, to which pupils of all races and color should be admitted and taught,. But if this were not the design of the act, and the school eo nomine was to be transposed and transformed, the intention was clearly expressed to retain the teachers unless removed in the manner provided by law, and this provision necessarily repealed any by-law of the board of education, or any rule of government, or modus operandi by which the school officers, without the removal required, could dispense with the services of the teacher. It does not make the least difference in the effect of the statute that there was no class for the relator according to existing rules, inasmuch as the pupils could, if necessary, be distributed, and more classes created. But this is not a question of .classes, but of power to dispense with services continued by law. We are dealing now with a statute which is mandatory, and not subject to whim, caprice or prejudice. The act declares not only that colored schools shall be classed and known and continued as ward schools, and primaries, but with their present teachers unless removed. It is thus said to the ward school officers, these schools are to be transformed and placed under your control, but with their present teachers, and the direction is so plain that he who runs may read and read correctly. This feature shows, as already suggested, that the design of the legislature was only to change, and not to destroy existing elements. We must, therefore, look through the record to see whether there be any other reason why the relator should be deprived of her position. We find none. The relator sought employment, it is true, as an additional teacher, and accepted payment as such, but this did not involve or amount to a resignation, or create an estoppel. She could properly seek other employment, the only effect being to diminish her claim against the city by deducting the sum received as compensation. It was, as declared and established by the case of The People ex rel. Gilchrist v. Murray (73 N. Y., 535), in no way inconsistent with her claim that, while excluded from her position, she should seek other employment. The views of the learned justice in the court below on this subject are sustained.

This is not a proceeding to collect the salary that may be due the relator. It is to require the respondents to recognize her, and permit her to perform her duty as a teacher. She prefers to perform that labor, and there is no reason valid in law why she should not be permitted to do so. The statute has declared that she might do so. She is not seeking here to establish her title, therefore, to an office or position, but to overcome her removal from one which it is conceded she legally held, and from which it appears she was illegally discharged. If after her recognition she should seek payment, her right to a similar remedy might form the basis of dispute. Doubtless she could maintain an action now to recover her salary, but she prefers to invoke the authority by which she may be reinstated and allowed to do her duty. The attainment of this result may be accomplished without action. As said by the learned justice in the court below, as this court has already decided it to be the duty of the respondents to recognize the relator, and to permit her to perform her duty as a teacher ( People ex rel. Ray v. Davenport; Lawrence. J.), a writ of mandamus is the proper remedy, as such a result cannot be obtained by action. For these reasons the Order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal,

Daniels and Bartlett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM J. LADD, Appellant, v. ANNA L. STEVENSON, as Administratrix, etc., of VERNON K. STEVENSON, MARINUS WILLETT and Others, Respondents.

      Action for specific performance — not maintainable unless all the terms are fully staled in ike agreement —nor in doubtful cases — statute of frauds.

    The plaintiff and the defendant Willett entered into an agreement by which the latter agreed, among other things, to pay a loan made by the plaintiff to a corporation, employment in which was secured to the plaintiff for a period named, at a specified salary, and that in case he should discharge the plaintiff before the expiration of the term above mentioned, or should otherwise fail to perform the agreement, he would ‘ ‘ give said Ladd (the plaintiff) satisfactory security for the repayment of said loan by the installments above mentioned, or pay the same forthwith in cash ” In his complaint herein the plaintiff alleged his discharge by the defendant Willett; that the latter had an interest in certain parcels of real estate, which were described; that this was the only property Willett had, to plaintiff’s knowledge or information, and sought to have the defendant compelled to specifically perform the agreement to execute a mortgage upon his real estate to secure the repayment of the amount loaned, and asked also for the foreclosure of this mortgage.
    Held, that the action could not be maintained.
    That although provision was made for satisfactory security, yet as it was not stated of what it should consist, and might be fully complied with by furnishing security other than a mortgage on real estate, the plaintiff could not require the defendant to furnish that particular security.
    That no such part performance of the contract was shown as removed it from the statute of frauds.
    Appeal from a judgment dismissing the complaint entered upon the trial of this action by the court, without a jury.

      G. II. Forster, for the appellant.

      F. Fllery Anderson, for the respondents
   Brady, J.:

The plaintiff and the defendant Willett entered into an agreement by which, under circumstances therein disclosed, the latter agreed for. certain considerations to pay a loan made by the plaintiff to the Highland Chemical and Mining Company, and in which employment was secured to the plaintiff for a period named at a salary specified. The agreement then contained this clause, showing in part the obligations assumed by the defendant Willett, namely: “ Third. In case he shall discharge said Ladd before the expiration of the term above mentioned, or shall otherwise fail to perform this agreement, to give said Ladd satisfactory security for the repayment of said loan by the installments above mentioned, or to pay the same forthwith in cash.”

The plaintiff alleged that the loan was not paid ; that no security was given as promised, and that he had been discharged by the defendant Willett, thus presenting all the elements to show a breach of the contract. He also alleged that the defendant Willett had an interest m certain parcels of real estate, which were described, and that this was the only property he had to his knowledge or information. The prayer of the complaint is as follows: “ Wherefore the plaintiff demands judgment against the defendant, that he specifically perform the said agreement, and that he execute a mortgage upon the above described real estate and property for the repayment of said twelve thousand five hundred dollars, with interest, by installments as aforesaid, and that the defendant and all persons claiming under him subsequent to the commencement of this action, be barred and foreclosed of all right, claim, lien and equity of redemption in the said premises, and that the said premises be decreed to be sold according to law; that the moneys arising from the sale be brought into court; that the plaintiff be paid therefrom the said sum of twelve thousand five hundred dollars, with interest thereon, and the costs and expenses of this action ; that the defendant be adjudged to pay any deficiency which may remain, and that a receiver be appointed of said real estate and property, and that the plaintiff have such other and such further judgment or relief in the premises as may be just and equitable.”

It is not necessary, in expressing the views entertained of this case, to refer to the many incidents connected with its progress to a former judgment, and the proceedings for the intervention 'of other persons, who, at their own solicitation, became defendants to protect their interests, inasmuch as the learned justice presiding in the court below dismissed the complaint upon the ground that the plaintiff was not entitled to demand as security a mortgage oh the defendant Willett’s real estate, or interest in it, if he had any. He found, in other words, as a conclusion of law, that the plaintiff, under the agreement, did not acquire any lien, mortgage or interest which bound or affected any of the premises described in the complaint. This conclusion seems to be abundantly sustained by the rule promulgated in Wright v. Weeks (25 N. Y., 153), which, like this, was an action for specific performance. The agreement sought to be enforced in that case provided for the sale of the premises mentioned at a sum stated “ upon the terms as specified.”- And the attempt was made to prove by parol what the terms were, but unsuccessfully, the evidence having been rejected, and the judgment -was sustained. It was held that such a contract could not be specifically enforced, unless it stated fully all the terms and subject-matter to be affected. If any of these were omitted, and resort must be had for exemplification to parol evidence, it could not be sustained. (Foot v. Webb, 59 Barb., 38; see, also, Mehl v. Von Der Wulbeke, 2 Lans., 267.)

Here, although provision is made for satisfactory security, it is not stated of what it shall consist, and as full compliance with the agreement might be accomplished by some security other than a mortgage on real estate, the proposition that real estate can be demanded and enforced by a decree for specific performance, is at once and successfully answered. Indeed, in reference to transactions purely commercial, such security is rarely given. It is generally consummated by indorsement or bonds or other collaterals negotiable in character and readily converted into cash.

The mischief which must ensue if such a provision constitute a lien on real estate has been illustrated herein by the result of lis pendens filed, which affected several pieces of property, thus creating a general and not a specific lien on one piece only. Assuming that the party contracting to secure owns or has an interest in several pieces of property, which of them has he agreed to mortgage? If it does not appear, how can the court declare that by the agreement any one to be selected is the one referred to, or in contemplation of the parties, or indeed select any one at all on principle ?

Specific performance’is not decreed in doubtful cases, and certainly never when a decree would be in contravention of a statute which proclaims that no interest in lands other than leases for a term of years not exceeding one year, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. (See. 6, p. 2326, vol. 3, Bev. Stat. [7th ed.], Banks Bros.)

The plaintiff sought to establish the right asserted by parol, and this was an admission of the omdssion from the written paper of a necessary element. It is true that some negotiation relating to payment of a part of the sum took place between the parties through their respective attorneys, but this was a concession only in regard to the subject embraced in the negotiation, and was not intended to enlarge the agreement in respect to the kind of security which must be given or the plaintiff had the right to demand. It nowhere appears in the correspondence that such a change or provision was in contemplation, and if there were, it is not so stated or expressed as to avoid the effect of the statute of frauds. It. is true that the plaintiff ought to have the protection which security would give him, but his right to it rests upon an agreement most infelicitous and unavailable for the reasons stated. The addition of a few words in the agreement would have given it to him, and the failure to insert them would seem to indicate that real estate as the object in view was not in the minds of the parties, and that the words as to security were used in their ordinary sense and provided for any security which ought to be regarded as satisfactory.

It might be said, in conclusion, that the assumption that there was herein such a part performance of the contract as removed it from the statute of frauds is erroneous. All that was done was to obtain relief from the operation of the lis pendens which the court refused to discharge, and which, as the result shows, the plaintiff had no right to file. This relief might be given on pioper terms in any case, and doubtless would, but whatsoever was done- was coerced and, therefore, not voluntary, the lis pendens standing in the way of any transfer or disposition of the property offered free from incumbrances. It was said by Earl, J., in Miller v. Ball (64 N. Y., 291) that it is not always easy to determine whether there has been sufficient part performance of a parol agreement for the sale of land, in the sense of courts of equity, to free it from the operation of the statute of frauds. The general rule is that nothing is to be considered as a part performance which does not put the. party into a situation which is a fraud upon him, unless the agreement is performed. * * * The payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not be a sufficient part performance within the rule under consideration, and neither would mere possession be, without other circumstances of hardship or fraiid.”

In this case none of these elements are proved, and the contract was devoid of that certainty which existed in all the cases of part performance, namely, the description, general or special, of the land sold and intended to be conveyed Not only that, but it was marked by the uncertainty also that any land was intended to be granted or incumbered. The only possession the plaintiff ever had 'of any real estate was that obtained by filing the lis pendens — not against one piece of property, but all the defendant Willett had, and for the reason that the right to any one piece was not and could not be shown by the agreement.

The consideration of this record, therefore, develops no reason for disturbing the judgment, and it should be affirmed, with costs.

Daniels and Bartlett, JJ., concurred.

.Judgment affirmed, with costs.