author: Per Curiam.

text:
    In the Matter of the Claim of Clarence G. Carr, Ex’r, Resp’t, v. The Estate of Susan B. Tompkins, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Surrogate’s court—Opening decree.
    The mere fact that the executor or his attorney in drawing a decree made a mistake on a matter of law is not sufficient to authorize the open-ing of the decree within the meaning of § 2481, subd. 6 of the Code.
    Appeal from order of the surrogate of Saratoga county, opening a decree theretofore granted by said surrogate, which former decree finally and judicially settled the accounts of John T. Carr, as executor, etc., of Susan B. .Tompkins, deceased.
    Susan B. Tompkins died in 1885, leaving a will, by the last clause of which she appointed John T. Carr her executor, and directed that “ he be paid reasonable and liberal compensation for his services as well as his fees allowed by law.” Carr, the executor, qualified and executed the will and applied for a judicial settlement of his accounts, and on the 2d day of July, 1889, a decree was duly made and entered by said surrogate, which finally and judicially settled his accounts as such executor and allowed him for his commissions the sum of $138.32, and for his costs and disbursements the sum of $50, and further “ for his additional compensation and other expenses under the will, the sum of $250.00.”
    Thereafter John T. Carr died, and on the 28th day of November, 1891, more than two years after said final decree was signed and entered, Clarence Gr. Carr, as his executor, presented to said surrogate a petition signed by W. B. French, which stated in substance that said John T. Carr had rendered services for the estate of said Susan B. Tompkins, for which he had not been paid, to the amount of over $3,000; that said $250 allowed in said decree as additional compensation was not intended as a final adjustment and allowance of the claim of said John T. Carr, and that if the language used be so construed, it was a mistake on the part of the attorney who drew the decree, and the petition prayed that said decree be opened to permit said claim to be proved.
    A citation was thereupon issued, on the return day of which the defendants appeared and filed an answer, denying the allegations of the petition.
    Thereupon, on the 8th day of January, 1892, without proof, simply on the petition and • answer, the surrogate made an order opening said decree “ so far as the same pertains to the amounts therein directed to be by him retained for commissions, to wit: the sum of $138.32 and the amount allowed him for his additional compensation and other expenses under the will, to wit: the sum of $250.”

      Brackett, Butler & Baucus (Edgar T. Brackett, of counsel), for app’lt; French & Smith (W. B. French, of counsel), for resp’t.
   Per Curiam.

We think the order of the surrogate, from which the appeal is taken, should not have been granted.

The power of the surrogate to open and modify a decree, and of the general term on the appeal from his order in such a case, is conferred by subdivision 6, § 2481 of the Civil Code, as follows:

“ 6. To open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate, and his determination must be reviewed as if an original application was made to that term.’ ”

The petition upon which said order was granted does not set out any facts showing fraud, newly discovered evidence, clerical error, or other sufficient cause to open the decree within the meaning of the above quoted section of the Civil Code. The intent of the attorney on the former accounting is entirely immaterial and he fails to show any knowledge of the intent of the deceased accountant. The only possible ground, if any shown, to open the former decree is a mistake of the deceased and his attorney on a matter of law. The decision of the general term of this district in the Matter of the Estate of Edward O'Neil, deceased, 46 Hun, 500; 12 St. Rep., 419, should be followed and is decisive of this case. It was held in that case that no court of general jurisdiction would permit a decree to be opened unless upon clear and sufficient grounds. That when the party has had his day in court he must show that it was not his fault that he did not improve it before he can get another day in the same matter. Assuming that the petition in this case may be deemed to prove the allegations set out in it, it fails to allege any facts which authorize the opening of the former decree of the surrogate within the above quoted case.

Again, the petition in this case, such as it was, was squarely denied by the answer, and the surrogate assumed to open the decree without any evidence whatever showing the propriety of such a proceeding.

We do not consider the question of the delay in making the application to open the decree.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alvin M. Aldrich et al., Resp’ts, v. Frank L. Davis, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Supplementary proceedings—Contempt—Special surrogate.
    A special surrogate who issued the original order in supplementary proceedings has power to punish a contempt thereof.
    2. Same.
    Evidence sufficient to establish contempt in disposing of property after service of order.
    Appeal from order of the special surrogate of St. Lawrence county, adjudging defendant guilty of contempt of court in violating an order in supplementary proceedings.
    An order for the examination of defendant in proceedings supplementary to execution was issued by the special surrogate and served on defendant on February 5, 1892.
    On the 6th day of February the defendant, Frank L. Davis, in his examination before the referee, admitted that within a week he had shipped a quantity of fur to L. P. Kinney, Lebanon, New Hampshire, at Madrid, N. Y., and that this fur was all the fur he had bought that fall. Among the reasons he gave for shipping the fur at Madrid was that he wished to dispose of it without the knowledge of the plaintiffs. He refused to swear whether the fur was owned by him or not. He left it with his father to ship.
    On the 10th day of February, 1892, the day to which his examination was adjourned, he further swore that his father took said fur to Madrid and that the fur was shipped in his father’s name, J. H. Davis.
    On the same day J. H. Davis, father of the defendant, was sworn in the same proceedings as a witness, and stated that he shipped some fur on the 6th day of February, being the date of the prior examination of the defendant, at the request of Frank L. Davis, the defendant, at Madrid, N. Y., to L. P. Kinney, and that he himself had no fur in the bag, but shipped it in his own name at the request of the defendant.
    The examination was adjourned to February 23, and on that day the defendant swore that he did not know how much fur was in the bag shipped to Kinney, and that Kinney himself did not know, but that Kinney had told him that he would give him credit for it
    L. P. Kinney testified in his examination, at which Davis, the defendant, was present with counsel, which examination was had February 13, 1892, seven days after the injunction order was served on the defendant, that he received a package of furs from Madrid, N. Y., on the 9th day of February, which furs Davis had told him he had shipped the week prior to his (Kinney’s) examination. He further testified that he had not paid for them and. would not pay for them until he or Wight Brothers had examined them. »

      Sawyer & Sawyer (George C. Sawyer, of counsel), for app’lt; Chamberlain & Caldwell (Worth Chamberlain, of counsel), for resp’ts.
   Per Curiam.

It is not claimed that the original order in supplementary proceedings was not properly and regularly issued by A. Z. Squires, special surrogate of St. Lawrence county, under the provisions of § 2434 of the Civil Code. Therefore, the defendant, disobeying that order, may be punished by the judge who issued it as for contempt. Section 2457 of the Civil Code; Piero’s Special Proceedings, 545.

It is w;ell settled that in supplementary proceedings the judge who made the order has full power out of court to punish for contempt. Shepherd v. Dean, 13 How., 173; Lathrop v. Clapp, 40 N. Y., 328.

We think that the affidavits presented to the special surrogate sustained his conclusion on the question of fact in the case.

Order affirmed, with costs and printing disbursements.

Matham, P. J., Putnam and Herrick, JJ., concur.


author: Putnam, J. Herrick, J.

text:
    Charles M. Preston, Assignee, App’lt, v. Reed Fitch, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Partnership — Dissolution — Contribution for subsequent disbursements.
    Pending action to foreclose a mortgage owned by a firm, the members of said firm entered into an agreement by which they discontinued theii partnership and agreed to continue to hold, as tenants in common, the claim represented by said action. All the assets were transferred to plaintiff’s assignor, who agreed to pay all liabilities. Upon the death of the other partner the action of foreclosure was continued in the name of . plaintiff’s assignor as survivor, and he recovered judgment, and on the sale purchased the premises. Feld, that no recovery could be had against the estate of the deceased partner for contribution towards the expenses incurred in the foreclosure action after the dissolution.
    Appeal from judgment dismissing the complaint on the merits. The plaintiff, as assignee of William B. Fitch, brings this action to recover of the defendant Reed Fitch, as sole surviving executor of the last will of Simeon Fitch, deceased, such amount as shall be found due him, as surviving partner of the firm of Simeon & Wm. B. Fitch, for expenses incurred and moneys advanced by his assignor and himself in protecting the interest of the late firm of S. & W. B. Fitch in a claim or demand described in an agreement made by Simeon and William B. Fitch', dated the 25th day of August, 1877, as the Ezra Fitch debt.
    The following is the opinion of the court below:
    Matham, J.—The proof shows that for a long time prior to August 25, 1877, Simeon Fitch and William B. Fitch were co-partners doing business at the cities of Hew York and Kingston, under the firm name of S. & W. B. Fitch, and that for some time prior to and on the 26th day of May, 1859, Margaret Fitch was the owner of a valuable farm situate in the town of Coxsackie, Greene county, Hew York, which on that day she, together with her husband, Ezra Fitch, mortgaged to the Mutual Life Insurance Co. of Hew York, to secure a loan of $10,000, which mortgage was duly recorded.

      On the 25th of August, 1874, Margaret Fitch sold and conveyed her Ooxsaekie farm by deed to William J. Best, subject to the insurance company mortgage, which Best assumed in such deed and agreed to pay, and to secure the balance of the purchase price of the farm Best gave to the said Margaret Fitch two bonds, one for $15,000 and one for $40,000, both of which were secured by a mortgage on the farm conveyed to him.
    Prior to August 25, 1874, Margaret Fitch became indebted to the firm of S. & W. B. Fitch in the sum of about $25,000 for money loaned to her, and on that day in payment of a portion of such indebtedness, she assigned to said firm the $15,000 bond and mortgage given to her by Best, and covenanted in such assignment that it should be a first lien on the farm next after the mortgage to the Mutual Life Insurance Co., and to secure the balance of her indebtedness to S. & W. B. Fitch, at the same time assigned the $40,000 bond and mortgage to said firm, which balance at that time amounted to over the sum of ten thousand ■($10,000) dollars.
    Default having been made in the payment of the interest on these mortgages given by Best on the purchase of the farm, which had been assigned to the firm of S. & W. B. Fitch, on the 24th of May, 1877, an action was commenced on behalf of the firm by King & Hallock, as attorneys, against William J. Best, Margaret Best, his wife, Margaret Fitch and Adam Martin, for the foreclosure of the same.
    To this action the defendants, William J. Best and Margaret Best, interposed an answer alleging various defenses and counterclaims, to which plaintiff’s counsel in that action replied.
    After the commencement of that action and while the same was pending and undetermined, on the 25th day of August, 1877, Simeon Fitch and William B. Fitch executed a writing under seal, in which they recited the existence of a copartnership theretofore and then existing between them, and that they own and possess various chattels, and have claims, demands, debts and judgments, which belong to them as partners. The agreement then states that the parties “ hereby mutually agree to discontinue said copartnership existing between them as aforesaid from the time of the execution of these presents.” The agreement then contains the following clause:
    “ And the said parties hereto of the first and second parts hereby mutually agree to continue to hold as tenants in common the debt, claim or demand, amounting to about the sum of twenty-five thousand dollars ($25,000), known as the Ezra Fitch debt, secured by mortgage and liens on lands known as the Ezra Fitch property at Ooxsaekie, Greene county, 1ST. Y., each of the parties hereto to have and own an undivided one-half interest therein."
    This agreement also transferred and conveyed to William B„ Fitch all other bonds, mortgages, judgments, debts, accounts, stock in trade, tools and chattels, partnership property to William B. Fitch, who, in said agreement, assumed and agreed to pay “ all liabilities, indebtedness and obligations under which said copartnership rests, or owing by them.”
    On the 13th day of July, 1877, Simeon Fitch made his last will and testament, and on the 3d day of September following died.
    On the 2d of October, 1877, this will was duly proved and admitted to probate. The executors named in said will were Jane M. Fitch, Eeed Fitch, William B. Fitch and Elihu Church, none of whom qualified except Eeed Fitch and Elihu Church.
    The will made certain specific bequests to Jane M. Fitch, widow, and devised and bequeathed all the rest of his property to his executors, and the survivors of them. After the death of "Simeon Fitch, the action commenced in the name of Simeon Fitch and William B. Fitch tp foreclose the Best mortgage was continued in the name of William B. Fitch as survivor of Simeon Fitch and William B. Fitch, and such proceedings were therein had that the-issues therein were referred to Peter Can tine to hear and determine, who thereafter, and on the 4th day of February, 1880, made his report, wherein, among other things, he finds as follows:
    “ That the said bond and mortgage for $30,000 is owned by the said William B. Fitch, as survivor of the said Simeon Fitch and William B. Fitch, and that he is entitled to collect thereon the full amount of money secured to be paid thereby."
    On the report, judgment was entered in which it is ordered, adjudged and decreed that the report of the referee be, and each and every part thereof, both as to the facts found and the conclusions of law therein contained, are fully approved, ratified and confirmed.
    On this judgment appeals were taken to the general term of the supreme court and court of appeals, and affirmed in both said courts.
    Under the judgment of foreclosure and sale thus obtained, the premises covered by the mortgage were on the 7th day of February, 1884, duly sold by the referee appointed in such foreclosure action to sell, and were purchased on such sale by William B. Fitch for $10,900, subject to the prior mortgage held by the Mutual Life Insurance Company, and the referee’s deed on such sale was given him.
    After the dissolution of said copartnership, as above set forth, the said William B. Fitch paid out and advanced large sums of money in defraying the expense of the litigation on such foreclosure sale, and in paying interest on that prior mortgage to the Insurance Company.
    William B. Fitch after such sale and conveyance to him continued to hold said premises under his purchase until the 15th day of November, 1884, when he executed to this plaintiff a general assignment for the benefit of his creditors.
    On the 18th day of November, 1885, the Mutual Life Insurance Co. commenced an action in the supreme court for the foreclosure of its mortgage against such premises, on which a j udgment of foreclosure and sale was recovered and pursuant to such judgment on the 26th day of March, 1886, the mortgaged premises were sold under the direction of referee appointed to sell, on which sale the premises were struck off to this plaintiff for $12,500.
    On the-day of June, 1887, the plaintiff as assignee commenced this action.
    The first question pressed upon the consideration of the court in the determination of this action is as to whether the plaintiff’s assignor incurred the expense and made the disbursements, to recover one-half of which this action is brought, or as to which an accounting is demanded, as the surviving partner of the late firm of S. & W. B. Fitch, or as a tenant in common, holding an undivided one-half interest in the Ezra Fitch debt, so called, under the contract of August 25, 1877, between Simeon Fitch and William B. Fitch.
    Two constructions are sought, to be put upon that contract by the respective parties.
    On the part of the plaintiff it is insisted that the parties by that contract dissolved the partnership theretofore existing between them .as to all matters except the Ezra Fitch debt, and as to that the copartnership continued and was not dissolved up to the time of the death of Simeon Fitch, and that William B. Fitch on the happening of that event succeeded to that claim as the surviving partner of Simeon and William B. Fitch, and in support of that contention urges that the language employed by the parties in the instrument itself justifies that construction ; that as equal partners before the dissolution the parties had an equal interest in this debt, and that that equality of interest was in terms preserved in and by the contract; that as they had up to that time held the debt as copartners, the words “ continue to hold ” implies a holding upon the same terms and conditions then existing, and although these words are followed in the same sentence by the words “ as tenants in common ” these latter words should not be given their technical signification, but should be construed so as to give effect to the preceding words “ to continue to hold,” and hence that the contract should be so construed that the words “ tenants in common " should in this agreement be held to signify “ copartners.”
    The plaintiff also insists that this view is also strengthened by the fact that at the time of making this agreement an action was pending in the name of these parties as co-partners, and no reference to that action is made in the agreement, and no suggestion made therein to change the form of the action to conform to any changed relation of the parties, and that when that action was prosecuted to judgment it was adjudged that plaintiff’s assignor held and owned the bond and mortgage representing the Ezra Fitch debt as survivor of the firm of S. & W. B. Fitch.
    On the part of the defendants it is insisted that the dissolution of the firm was complete as to all its assets and effects by the terms of the agreement of August 25, 1877, and that as to the Ezra Fitch debt the parties by that agreement became tenants in common, and that that relation existed at the time of the death of Simeon Fitch, and that William B. Fitch took no interest in it as survivor of the late firm of S. & William B. Fitch.

      Standing upon this instrument alone, it must be conceded that the relation which William B. Fitch bore to Simeon Fitch’s interest, in this debt after dissolution would be involved in grave doubt.
    But I think as between those parties for the purpose of this action that doubt is removed by the judgment and determination of this court in the action to foreclose the Best mortgage, and that as to the representative of William B. Fitch and parties claiming under Simeon Fitch, both of whom were parties to that action, the determination in that action is res adjudicóla.

    At the time of taking judgment in that action, William B.. Fitch stood as the survivor of the late firm of Simeon Fitch and William B. Fitch in an action commenced by them as partners and prosecuted by them as such up to the time of the death of Simeon Fitch.
    William B. Fitch’s right to recover in that action as survivor-depended upon the existence of the relation of co-partnership between him and Simeon at the time of Simeon’s death.
    No step having been taken by the next of kin or personal representatives of Simeon after his death, or by him during his life after the making of the agreement of August 27, 1877, to establish in that action a severance of the relation of co-partnership existing at the time of the commencement of the action, and the same having been prosecuted to judgment in the name of the survivor, and the decree adjudging him to be such survivor, and as owning this claim as such, I think it does not lie with the privies is estate of Simeon to deny the existence of that relation.
    The rule seems well settled that when a question must necessarily have been determined in order to reach the result announced, that determination is conclusive between and as, to all the parties to the action and their privies either as an estoppel or in bar; and such an estoppel is effective, although the judgment was in a court of equity and the parties in the action were both defendants. Tusha v. O'Brien, 68 N. Y., 449-450.
    I must assume that the action commenced in the name of Simeon and William B. Fitch to foreclose the Best mortgage was with the authority of both as members of the firm of S. & W. B. Fitch. Denton v. Noyes, 6 Johns., 295. And the verity of the judgment recovered in such an action cannot be questioned collaterally in another action between the same parties or their privies. Brown v. Nichols, 42 N. Y., 26; Hamilton v. Wright, 37 id., 502.
    If Simeon and William B. Fitch were partners at the.time of the death of Simeon, then the action commenced by the firm in the lifetime of both vested in the survivor, and was properly prosecuted to judgment by him. Code Civ. Pro., § 758.
    This brings us to the consideration of the powers and rights of' a surviving partner to charge the estate of his deceased copartner in the management of the partnership assets after dissolution by the death of a copartner. By the death of a copartner the partnership is ipso facto dissolved, and all the powers of the surviving partner to bind the partnership in the transaction of the ordinary-partnership business is ended.

      But the law imposes upon the surviving partner as an incident of his contract of partnership the duty of collecting the assets and winding up the business of the firm. Ames v. Downing, 1 Brad., 321.
    And when there is no allegation of the insolvency of the survivor, he will be permitted to exercise his judgment and discretion, and the court will not appoint a receiver at the instance of the representatives of the deceased partner. Evans v. Evans, 9 Paige, 178.
    William B. Fitch, therefore, as the survivor of the firm of S. & W. B. Fitch, was clearly charged with the duty of prosecuting the suit for the foreclosure of the Best mortgage, which was pending at the death of Simeon, and in the prosecution of that suit the expense which he necessarily and properly incurred would be a charge on the partnership assets, ana in default of such assets-it would seem to be equitable and just that the estate of his deceased copartner should be held liable to contribute its just proportion of the same, unless, by the terms of the dissolution contract, William B. Fitch assumed this liability as one of the firm liabilities which he covenanted to pay.
    The language used in the agreement is as follows:
    “ The said William B. Fitch, party of the second part, for himself, his heirs, °his executors and administrators, doth hereby covenant and agree to and with Simeon Fitch, his heirs, executors and administrators, that the said party of the second part will pay, satisfy and discharge all liabilities, indebtedness or obligations of the aforesaid copartnership, and will hold the said party of the first part harmless and free from any liability on account-thereof as one of the members of the copartnership of S. & William B. Fitch.”
    As we have held that this Ezra Fitch debt was excepted from the effect of the dissolution of the partnership, and was still held in partnership by the firm, it would seem to follow that any expense incurred in relation to it would fall within the assumed liability of William B. Fitch under the above provisions of the agreement in which he agrees to protect the estate of Simeon Fitch from all liability.
    That being so, he, in paying these expenses, was only performing his own contract, and cannot now be permitted to charge upon the estate of Simeon Fitch a liability against which he expressly covenanted to protect it.
    The payment of these expenses, incurred in the prosecution of the action in the name of the firm by the survivor, would have devolved on the firm had there been no dissolution. As the dissolution, by the contract, did not reach the Ezra Fitch debt, that-still remained a partnership matter, and as William B. Fitch assumed all partnership liabilities, and agreed to indemnify Simeon and his successors in interest from all liability on account of thecopartnership, this became one of the liabilities assumed by him.
    If this view of the case be correct, it follows that the plaintiff' cannot recover in this action.

      The remaining question is, are the defendants entitled to recover on their counterclaim for rents ?
    I think not The lease to plaintiff of the dock was for one year only, and although it was dated March 19, 1885, it was intended to, and did, cover a period of time from December 1, 1884, to December 1, 1885, and the plaintiff covenanted to pay, .and did pay, the tax assessed within that period.
    The tax paid by plaintiff was that which was levied December 6, 1884, during the term for which his lease was intended to operate.
    And the tax levied December 6, 1885, and which was paid by his successor and now sought to be recovered of him, is in no just sense a tax assumed or agreed to be paid by him.
    On the whole case the defendants are entitled to judgment dismissing the complaint, with costs to be paid out of the assigned •estate.

      Howard Chipp, Jr., for app’lt; A. T. Clearwater, for resp’ts.
   Putnam, J.

The exhaustive opinion delivered at special term renders it unnecessary for me to do more than make a few suggestions in regard to this case,

I concur in the result reached by the court below, but with some doubts as to the finding that the partnership between William B. and Simeon Fitch continued as to the “ Ezra Fitch debt ” after the execution of the agreement of August 25, 1877, .although in all other respects dissolved.

That agreement provided that the parties “ mutually agree to •discontinue said copartnership existing between them as aforesaid from the day of the execution of these presents, and the said parties * * * agree to continue to hold as tenants in common the debt, claim or demand amounting to about the sum of twenty-five thousand dollars, known as the Ezra Fitch debt, * * * each of the parties hereto to have and own an undivided one-half interest therein.”

I incline to the opinion that the language of this agreement between the parties should be taken literally. The agreement ■does not provide that the partnership shall be dissolved as to a portion of the assets of the firm and continue as to the residue. It seems an unlimited and entire dissolution of the firm. It provides that the “ Ezra Fitch debt ” shall thereafter be owned by the parties as tenants in common. There is a plain distinction between owning personal property as tenant in common or as partner. If it had been the intent to continue the co-partnership as to the debt in question it would have been quite easy to have inserted in the agreement in the clause dissolving the partnership the words “ except as to the Ezra Fitch debt," or that the parties should continue to own this debt as partners. I am inclined to think, therefore, that by the terms of the contract of August 25, 1877, the co-partnership between the parties ceased as to this “ Ezra Fitch debt ” as well as to all other partnership property.

Hence, on the death of Simeon Fitch, which occurred a few days after, and before the disbursements for which this action was brought were made, the title to an undivided one-half of the “ Ezra Fitch ” claim vested in the personal representatives of Simeon. They should have been made parties plaintiff in the “Best” action. Gock v. Keneda, 29 Barb., 121.

The representatives of Simeon Fitch and William B. Fitch being tenants in common as to the Ezra Fitch debt, plaintiff or his assignor could not charge defendants for expenses and disbursements of the action and other expenses set out in the complaint incurred without the knowledge, consent, privity or procurement of defendants. If while Simeon lived there was any presumed agency on the part of William B. to continue the action and make the expenditures mentioned in the complaint, Simeon having died, such presumed agency was terminated by his death. In the cases cited by the appellant I find no authority holding that a tenant in common can enforce contribution for such disbursements as were made by William B. Fitch, and for which plaintiff claims here, they being made without the knowledge, request or privity of the co-tenant. I also think the judgment rendered in the action to foreclose the “ Best ” mortgage does not estop the defendants from denying that the co-partnership between William B. and Simeon Fitch, as to the “ Ezra Fitch debt,” ceased before the death of Simeon.

It is true that the action was carried on by William B. Fitch as survivor and it was determined in such action that he was the survivor. But the defendants were not parties and hence are not bound by the judgment If in fact the partnership ended on the execution of the agreement, August 25, 1877, as above suggested, the defendants cannot in any way be bound by the proceedings in the action after the death of Simeon Fitch. They could only be-made liable by the result of the action if parties to it. Of course if the partnership in fact continues as to the “ Ezra Fitch ” claim, William B. as survivor could continue the action and the judgment therein would be res adjudícala. But if my impression, as above stated, is correct, I am unable to see how a judgment in an action in which they never had an opportunity to appear could, be binding on defendants.

For these reasons, and without considering those advanced at special term, I think there should be an affirmance of the judgment, with costs.

Herrick, J.

One of the members of the court being disqualified, I concur in the result of the opinion of Justice Putnam in-order that there may be a decision of the case, which there would, not be if I failed to assent.


text:
    George Erwin, App’lt, v. Margaret Dezell, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Slander—Charge of bastardy.
    Words charging a party with having been arrested for bastardy and having paid money to settle it are not actionable per se.

      •2. Same—Pleading—Special damage.
    The complaint in an action of slander, after setting forth the alleged libelous charge as above, alleged that in consequence of these defamatory words plaintífE has been subjected to litigations which would not otherwise have been brought against him, and has been unable to sell property, but no names or specifications were given. Held, that such averments were not sufficient to show special damage fairly arising from the defamatory words.
    Appeal from judgment sustaining demurrer to complaint.
    The following is the opinion of the court below:
    Rüssell, J.—This is a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint attempts to charge a case of slander. The words alleged to have been spoken accuse the plaintiff of having been arrested for bastardy, and having paid $100 to settle it. Inferentially it may be supposed, although the complaint does not charge it, that the offense committed by the plaintiff was of being the- father of a bastard child.
    The words are not actionable per se. It is no crime under the laws of the state of New York. It is within 'the reach of those laws for the protection of the public, so that the child will not become a burden upon the public, or have to be supported at the public expense. For that purpose the process of arrest is allowed against the reputed father, and imprisonment may come, but only in the event that he fails to comply with the order of the court in regard to protecting the public.
    Ft is, however, claimed that the complaint avers special damages. Those averments state that in consequence of these defamatory words the plaintiff has been subjected to litigations which would not have been begun against him; has been unable to sell property ; but in no case are the names or specifications given from which such a presumption may arise.
    The words charged are not spoken of the plaintiff in regard to his vocation in life, and the complaint does not state what that vocation is. It may be fairly inferred that such a charge would, if credited at all, result in injury to the reputation of any person; but this does not give a right of action. Such words fall in the •class of cases which are not actionable, and as to the utterance of which a man must rely upon the good name and repute which he has earned by his life amongst his neighbors, and which serves him in good stead on such occasions. The law cannot take cognizance of every malicious scandal which is uttered by one against his neighbor.
    The only inference which can be drawn from the complaint to justify this assertion in regard to special damages is that the effect of these words, for some reason not disclosed, was magnified far beyond that which it would be in ordinary cases to the all-round detriment of the plaintiff. It is equivalent to saying that his •neighbors and those who might have dealt with him would not have anything to do with him because of the general blow to his reputation by the utterance of these words; not that they had any special, direct or unusual effect.
    I do not overlook the general rule that the détails of times, places and names are obtained in or from a pleading by other remedies than by demurrer. I am considering whether the general averments reach a sufficient statement of cause and effect to justify the court in saying that special damage fairly arose from the defamatory words.
    Upon this inquiry I do not think the averments of the complaint sufficient; and, therefore, the demurrer is sustained, with leave to the plaintiff to amend upon payment of the costs of the .action.

      Forrest K. Moreland, for app’lt; Maurice O. Spratt, for resp’t.
   Judgment affirmed on opinion of court below.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Mayham, P. J.

text:
    The People ex rel. James M. Patterson, App’lt, v. Edward Reed, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    "1. National guard—Delinquency courts—Habeas corpus.
    Where a delinquency court has obtained jurisdiction of the person by service of summons and appearance, the legality or justice of its mandate cannot be inquired into on habeas corpus.

    2. Same—Aggregation of penalties.
    Such court does not exceed its authority by embracing in one warrant several fines, so long as the fine imposed for each delinquency does not exceed the maximum sum imposed as a penalty for any one delinquency.
    3. Same—Charges.
    Section 114 of the Military Code only requires that charges and specifications shall be served on the accused when brought to trial before a court martial. No such requirement is made in trials before delinquency courts.
    Appeal from an order made by the county judge of Warren -county dismissing a writ of habeas corpus and remanding the relator to the custody of the respondent.
    The relator being in custody of the defendant, under a warrant purporting to have been issued by a delinquent court organized under the provisions of the military code, sued out a writ of habeas corpus, and the defendant, by his return to such writ, justified under such warrant. The warrant recites that a delinquency court was duly appointed and held for a trial of enlisted men of the Eighteenth Separate Company of National Guards, and that ■the relator was duly summoned to appear at such court, at a time ■and place appointed, at which time and place such court was held: and the relator was returned thereto as delinquent in not attending certain specified drills and parades. That it appeared to the satisfaction of such court that the relator was a duly enlisted member of such company, and that no sufficient excuse was presented for the delinquency charged against him, and that the court thereupon adjudged him delinquent as charged, and sentenced him to pay a fine of fifty dollars. The warrant required the defendant to collect such fine, with costs, from the relator, and in default of property to arrest and convey him to the common jail of the village of Glens Falls, or the county of Warren, as the case may be, and to deliver him to the jailor for imprisonment according to law.
    The relator, by his traverse of such return, denied the validity of the warrant, and charged and alleged that- the court was not legally constituted, and that it had no jurisdiction of the relator,, or the subject matter of the proceedings.
    Upon the hearing, the only evidence given before the county judge was by the relator, that a summons was served upon him for his appearance before the delinquency court.
    The county judge made an order dismissing the writ, and remanding the relator to the custody of the defendant, and from that order the relator appeals.

      Louis M. Brown, for app’lt; Loyal L. Davis (C. J. Buchanan, of counsel), for resp’t.
   Mayham, P. J.

The relator insists that there was no proof before the county judge on these proceedings that the delinquency court acquired jurisdiction, either of the person of the relator or of the subject matter of the charge, to authorize that court to impose the fine for which the relator was arrested and committed by the defendant under the warrant issued by the president of the court.

We think the summons issued by the president of the delinquency court, which was put in evidence on the part of the relator, and which he swears was served upon him, was sufficient prima facie to establish the jurisdiction of that court, both of the relator and subject matter of the charge.

The statute authorizes the creation and organization of the delinquency court, and the amended return shows that the warrant was issued by the president of that court, and the existence and validity of such court is nowhere expressly traversed by the petition or answer to the amended return, and we therefore conclude that the existence and jurisdiction of that tribunal is established, and by the service of the summons and the appearance of the relator in the delinquency court pursuant to its mandate the court acquired jurisdiction of the person of the relator.

The delinquency court having thus acquired jurisdiction, the county judge on habeas corpus could not, nor can this court on an appeal from his order quashing the writ, inquire into the legality or justice of the mandate, decree or final order of the delinquency court. For any error in the exercise of the jurisdiction relief must be sought either by certiorari or appeal. This was the rule under the Revised Statutes, and it has not been changed by the Code. Section 2034 of the Code of Civil Procedure provides as follows : “ But a court or judge upon return of a writ issued as prescribed in this article shall not inquire into the legality or justice of any mandate, judgment, decree or final order, specified in the last section but one, except as therein stated."’' Section 2033 of the Code provides that where a person is in custody by virtue of a mandate in a civil cause, he can be discharged only in one of the cases mentioned in that section, and this proceeding does not come within any of the cases there enumerated.

It is quite true, that as this delinquency court is not a court of general jurisdiction, its recitals of jurisdictional facts do not furnish prima facie evidence of jurisdiction. But the jurisdiction of this court in this case does not rest upon recitals alone, but upon the summons and proof of service, and the uncon.tradicted allegation in the return of the existence and organization of the court, which stand admitted in the record. While therefore the jurisdiction of this court was open to be attacked in this proceeding, yet when jurisdiction is shown, its proceedings •cannot be collaterally assailed.

Upon this subject Ruger, Ch. J., in People ex rel. Frey, 100 N. Y., 26, uses this language. “ When, however, a court has jurisdiction ■of the subject matter and has acquired jurisdiction of the person by service of proper process or a voluntary appearance of the party, it is competent for it to try and- determine all questions within the issue arising during the course of the trial, and its -decision thereon can be reversed only on appeal in a direct proceeding having that object in view.”

But it is insisted that the delinquency court had no power to inflict penalty amounting in the aggregate to fifty dollars, and that the imposition of this penalty comes within the provisions of the habeas corpus act as contained in sub. 1 of § 2033 of the Code, when the jurisdiction of the court has been exceeded. By § 123 of the Military Code, 2 E. S., 8 edition, 853, it is provided as follows: “ Every enlisted man who shall without proper excuse be absent from, or in any other respect delinquent at any drill, parade, encampment, meeting for instruction or other duty ordered by competent authority, shall be fined by a delinquency court for enlisted men, not more than five nor less than one dollar for each absence or other delinquency.”

The relator denies the right to duplicate offences and try a delinquent for ten offences or delinquencies at the same time; but we see nothing in the act that prohibits such a fine if the same is made of a sufficient number of delinquencies at not to exceed five dollars for each offence to aggregate to that amount

That would not be the exercise of an excess of authority, prohibited by the habeas corpus act, above referred to, so long as each penalty did not exceed the maximum of the penalty for such delinquency. If the duplication of the penalties in one •warrant was erroneous, that was but an error in the exercise of •the jurisdiction which could only be corrected on appeal, and not on habeas corpus, as we have already shown.

If the imposition of a penalty is to be considered in the nature of a conviction for an offense, then the case of the People ex rel. Tweed v. Liscomb, 60 N. Y., 559, would be in point, and the authority of the court would be clearly exceeded, and the want of jurisdiction as to such excess of authority would be good ground for interference by habeas corpus, for, as to such excess, the court would be without jurisdiction and its order would be void. But it can hardly be claimed that the delinquencies charged against the relator were criminal, and that the penalties imposed by the statute for such delinquencies were in the nature of punishments for crimes, and hence the aggregation of punishment for several offenses charged in the Tweed indictments have no direct application to the delinquencies charged against the relator, for which this sum of fifty dollars was imposed as a fine. The case is more nearly like a civil action for the violation of the game 'or excise laws, when several penalties may be recovered in the same action and enforced oh the same execution.

But the military code in itself contains provisions which strengthen the argument that fines may be aggregated and embraced in the same warrant for collection by the marshals. Section 127 is as follows: “For the purpose of collecting any fines or penalties imposed by any court-martial or delinquency court authorized by this act, .the president of the court shall, within twenty days after the expiration of the time in which an appeal is allowed, as provided in this act, * * * make a list of all persons fined, describing them distinctly, and showing the sums as fines or penalties imposed on each person and not paid, and shall draw his. warrant directing the marshal to collect, etc.”

It seems quite evident from the language above emplojmd that the president may in the same warrant aggregate several penalties against the same person in one warrant, and also that he may in the same warrant embrace more than one delinquent. It would seem, therefore, that the delinquency court did not exceed its authority in embracing in one warrant several fines, so long as the fine imposed for each delinquency did not exceed the maximum sum imposed as a penalty for any one delinquency.

It is also urged that there were no charges and specifications served on the relator as required by § 114 of the Military Code. That section only requires that charges and specifications shall be served on the accused when brought to trial before a court martial. No such requirement is made in trials before delinquency courts.

It is also urged that the warrant was irregular on its face, in that it directed the imprisonment of the relator in the Glens Falls or county jail in default of collection or payment of the. fine.

The statute does not prescribe the form of the warrant, but it. defines the powers and duties of the marshal, or sheriff, charged with its execution as follows: “In default of sufficient goods and chattels to satisfy the same, then such marshal of the court, or sheriff or constable of any city or county, * * * shall take the body of such delinquent and convey him to the common jail of such city or county,” etc.

The warrant, therefore, directed substantially the performance of the same act which the statute required the sheriff or marshal to do. without any such direction, and it is difficult to see how the relator could be injured by such direction.

Such direction was not required by statute, but it gave no' direction that the sheriff under the statute was not required to do whether it was contained in the warrant or not.

The order of the county judge directing that’ the writ be quashed and the relator remanded was right, and must be affirmed, with costs.

Order affirmed, with costs and printing disbursements.

Putnam: and Herrick, JJ., concur.


author: O’Brien, J. Andrews, J.

text:
    James Wall, App’lt, v. The Emigrant Industrial Savings Bank, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Savings banks—Negligence—Payment to wrong person.
    The signature of a person presenting a pass book to a savings bank, and demanding payment on account of a deposit made twelve years before, differed in some respects from the signature written in the signature book by the depositor. The holder of the pasr, book correctly answered three of eight test questions written in the signature book, the teller refraining from putting the other five questions. Held, that it would not have been error to hold as matter of law that the bank used reasonable care in making the payment (Andrews, J., dissenting).
    2. Same.
    Even if, under the facts accompanying the payment, the question of defendant’s negligence had been one for the jury, the circumstance that the person presenting the book had acquired the information enabling him to answer the test questions through a response by plaintiff to a letter of inquiry written by a stranger, would have required the direction of a verdict for the defendant on the ground of plaintiff’s contributory negligence (Andrews, J., dissenting).
    3. Same.
    Where a savings bank has paid a portion of a deposit to the wrong person, without negligence on its part, a judgment for the bank will not be reversed, although it appear that the plaintiff has undisputed right to the balance of the deposit, if the plaintiff claimed the whole amount of such deposit, and no demand specifically for the balance was made either before or at the trial, and no motion made for the direction of a verdict for said balance.
    Appeal from judgment in favor of defendant, entered upon a verdict directed by the court.

      Mitchell & Mitchell, for app’lt; Coudert Bros., for resp’t.
   O’Brien, J.

In Kummel v. The Germania Savings Bank, 127 N. Y., 492; 40 St. Rep., 252, it is said: “ Assuming that the bylaws printed in the book are binding upon the depositor and constitute a contract between the parties, we still think that the duty devolves upon the officers of the bank to exercise care and diligence in order that their depositors may be protected from fraud and larceny.’’ In another form the rule is thus stated in Allen v. Williamsburgh Savings Bank, 69 N. Y., 319: “ The officers of savings banks, acting under rules such as those shown to us in this case, are bound to the exercise of care and diligence up to the mark which is fixed for the bank by those rules. * * * The extent of the duty which the savings bank is under will in some degree be measured by the strictness or extent of the rule it has put upon itself. Ordinarily, it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact, as the proofs are conclusive and undisputed or debatable and conflicting.”

Whether or not the defendant failed to comply with the duty devolving upon it of exercising reasonable care and diligence to protect its depositors from fraud or larceny, resort must be had to-the evidence to determine whether it was presented in such form as to make it a question of fact for the jury or one of law for the court.

The circumstances under which the moneys were paid out were detailed by the paying teller of the defendant, who testified : “ The pass-book came to me in the regular course, with a draft ticket in it, signed James Wall; it had been presented at the other window before it came to me, and upon its arrival at my window I took the ticket out of the book, and either at that time or a minute or two afterwards I ran my eye over the account to see if there was money enough in it to pay the demand. * * * I then took the draft ticket signed James Wall over to this book, which lay a little at my right on a desk, and compared the signatures. I then asked the person who presented the book, and who was in the-line, what his name was. He said ‘ James Wall;’ I then asked him what county in Ireland he was born in, and he said, ‘ county Louth ; ’ I asked him what ship he came over in, and he said the' ‘ Somerset; ’ I asked him his mother’s maiden name, and he said Ann Levins.’ Then upon the strength of the comparison and those answers, I paid him the money, after asking him how much he wanted.”

Upon cross-examination he testified that there were some slight discrepancies between the signature upon the signature book of the bank and the ticket presented by the person attempting to-draw the money, and he stated that this put him on his guard,, and it was for that reason that he asked the questions, though, as he stated, he thought upon comparing the signatures that it was Wall’s, although there were one or two slight changes; that eleven years had elapsed, and that this among persons not accustomed to write frequently makes a difference in the regularity of the signature.

Unless the force of this testimony is impaired, rebutted or destroyed, we fail to see, upon such testimony undisputed, how any inference could be drawn by a jury that the defendant had violated the rule which required in paying over money to one in possession of the pass book the exercise of reasonable care ánd diligence. Hot only was it not impaired, but in many respects it was supported by the testimony of the signature' clerk of the defendant, who testified that he heard the teller asking the questions that were on the test book containing the-signature and test questions. The plaintiff offered no testimony to contradict these witnesses showing the conduct of the defendant’s employees at the time the money was paid, and assuming-such testimony to be true, no inference could be drawn therefrom that the bank was wanting in that degree of care and diligence which the law would exact to prevent fraud upon depositors. The only question which upon this testimony could, remain for the jury would be the credibility of the witnesses,, which was in no way assailed or impugned, or in any way affected, unless it is to be assumed, that their relations as employees of the defendant, and the interest therefrom resulting, would subject their testimony to scrutiny and suspicion. There are cases holding that where a cause of action is supported by the testimony of a single witness, who is interested in the result thereof, and no evidence is presented to the contrary, that the jury is not obliged to credit such testimony, or to find a verdict thereon, but that the question of credibility of such witness is to be left to the jury, and a verdict against such witness will not for that reason be disturbed.

Those cases we take it, however, are cases where the burden of proof is upon the plaintiff to establish a cause of action. Here, it is true, the manner in which the moneys were paid out raised a presumption in plaintiff’s favor which shifted the affirmative of establishing its defenses upon the defendant, and the defendant having assumed the affirmative and presented evidence tending to support its defense, which was in no way contradicted or impaired, a verdict under such circumstances for the plaintiff would have been against the weight of evidence, and would necessarily have to be set aside. We do not regard the conclusion to be reached upon such evidence as either debatable or conflicting, and it therefore properly presented a question of law for the court, and justified the direction which was made.

But, however this may be, if there was any question of fact to be presented to the jury as to defendant’s negligence, it would have been error to have submitted it in view of the other testimony in the case, showing conclusively that the proximate cause of the fraud or loss that resulted to the plaintiff was due to his own negligence. It appeared that prior to the presentation of the pass-book to the bank the plaintiff had received a letter requesting him to furnish to a stranger the very information which enabled the person presenting the book to answer the test questions which were in the defendant’s test or signature book. Even though we assume, therefore, that the discrepancy • in the signatures was sufficient to demand scrutiny, and an inquiry into the right of the one presenting the pass-book to the money, the suspicion thus aroused in the employees of the bank was allayed by ■correct answers given to the test questions relating to the plaintiff’s birth place, mother’s maiden name, and the ship upon which he came over. These had been furnished to the stranger, who it would appear had obtained the plaintiff’s pass-book, and being in possession of the latter and of the necessary information, was placed in a position to perpetrate the fraud which resulted in injury to the plaintiff. As to plaintiff’s carelessness in thus supplying the information to a stranger no question is presented, and however strongly we may hold the rule to be in respect to the •degree of care required of a savings bank or bank of deposit, it Is equally well settled that it is the duty of a depositor, upon his side, to use all reasonable care against fraud upon the bank. 'There being no dispute but that this duty which was imposed upon the plaintiff had been violated, and the plaintiff’s own testimony having shown that he was negligent, this alone was sufficient to bar his right to a recovery and justified the verdict which was directed for the defendant bank.

A more difficult question presented on this appeal relates to the right of the plaintiff to recover the balance of his deposit with the defendant, which he is, and was, undoubtedly entitled to receive. It was conceded, that in addition to the $540 which had been fraudulently withdrawn, that plaintiff had still to his credit with the defendant bank the sum of $141.08 and interest. Had the plaintiff .requested a direction for this amount it should have been granted. In his complaint he claimed the-whole amount, and the demand alleged upon the defendant related to the whole amount, and the refusal to pay had reference to the whole amount, the defendant, so far as the evidence shows, never having been requested to pay this sum of $141.08, which still remained to the credit of the plaintiff. It is true-that this amount was included in the entire amount demanded by the plaintiff, and the right to recover the entire amount was-denied by the defendant. Plaintiff did not make any claim for this balance on the trial, although it was conceded that that amount stood to the credit of his account, and at the end of the trial he asked to go to the jury upon “issues of fact denied.”. The testimony showed that the only issue of fact denied was as to the defendant’s liability for the $540 which had been withdrawn by some third person from the defendant bank. There was no evidence that any demand had ever been made for this specific sum, but, on the contrary, the evidence was that the demand had been made for the entire amount which had been deposited by plaintiff, which included this together with the $540 withdrawn. We do not agree with the respondent that to have obtained this amount it would have been necessary to produce the pass-book, or that it would be unreasonable to require it to take the risk of payment of this $141.08-without the presentation of the pass-book, for the reason that upon the facts appearing on the trial it was evident that the-pass-book had been taken from the plaintiff’s possession, and its absence could not be regarded as destroying the plaintiff’s-right to the balance of the deposit.

As held in Kummel v. The Germania Savings Bank, supra, “The passbook of a savings bank cannot be regarded as negotiable, and its possession does not constitute proof of a right to-draw money thereon. The book imports a liability of the bank to the depositor for the amount of moneys entered therein as deposited, and an agreement to repay at such time and in such manner as he shall direct." We think, however, that a trial which proceeded entirely upon the question as to plaintiff’s right to recover $540 which had been withdrawn under the circumstances appearing from the testimony, and the court’s attention being directly solely to that contention presented between the plaintiff and the defendant, that it would be violating the rules relating to the conduct of litigations and the proceedings upon a trial to destroy the. whole effect thereof by giving undue weight to a point which, however good, was not then presented, but is presented for the first time upon the appeal. This amount the plaintiff can obtain from the bank, and while it may be regarded as a hardship that, with this balance in his favor, he should have suffered a judgment for costs, we do not see that the court below was to blame, nor can we, without doing violence to what we regard as the settled roles of practice, afford any relief. The effect of holding that this point was well taken would be to require a new trial of a question which was once litigated because the court had failed to consider a question which could have been resolved in plaintiff’s favor, but which was never either raised or suggested to the court.

We are of opinion, therefore, that the judgment should in all. respects be affirmed, with costs.

van Brunt, F. J., concurs.

Andrews, J.

(dissenting.)—This action was brought to recover the sum of $681.08 with interest, being the balance of moneys deposited by the plaintiff with the defendant. The answer set up several defenses: First, that at the time the plaintiff opened an account with the defendant he received a pass-book, and that one of the conditions upon which the defendant received plaintiff’s deposits, and which was printed in the pass-book, was as follows: “ The pass-book shall be the voucher of the depositor, and the possession of the pass-book shall be sufficient authority to the bank to warrant any payment made and entered in it. The bank shall not. be liable or called on to make any payment without the presenting of the pass-book at its counter, that the proper entry may be made in it. ” That at the time the plaintiff demanded payment of the moneys sued for he did not present the pass-book. A second defense was, that among the articles or conditions of the agreement made between the bank and the plaintiff at the time of the deposit and the acceptance thereof was the following: “Although the bank will endeavor to prevent fraud on its depositors, yet the payments to persons producing the passbooks issued by the bank shall be valid payments to discharge the bank; ” that on September 8, 1889, a person representing himself to be the plaintiff produced the pass-book issued by the bank to the plaintiff, and the defendant, believing such party to be the plaintiff, paid him the sum of $540. The third defense was, that when such party presented the pass-book the defendant, in order to fully discharge its duty to plaintiff, made various inquiries touching his identity, the answers to which satisfied the defendant that he was entitled to receive the money; that the answers so given were based upon information received from the plaintiff himself, and that the payment of the money was due to the negligence of the plaintiff in confiding to the person who obtained the $540 information which should not have been confided to a stranger.

Upon the trial the defendant claimed and was awarded the affirmative. The undisputed facts established by the testimony were as follows: The plaintiff made his first deposit with the defendant, and received a pass-book, on January 10, 1878. The conditions or agreement upon which it is claimed the deposit was received and the pass-book issued were printed in the inside of the cover of the pass-book, and contained, among other things, the two paragraphs set up in the answer, and above quoted. At the time of such first deposit the plaintiff was asked certain questions, and the answers to those questions were entered in the signature book. The questions asked were as to the plaintiff’s residence, occupation, the year when he was born? where he was born, what vessel he came over in, his father’s Christian name, .and his mother’s maiden name.

The answers to these questions were written down in the signature book and were as follows, respectively : 12 Little Twelfth street; laborer; 1845; County Louth; 1867; per “ Somerset; ” Christopher; Ann Levins; and the plaintiff was required to and did write his name, James Wall, in such signature book. On September 4, 1889, the plaintiff had on deposit to his credit the sum of $681.08; and on or about that day a person appeared at the bank with the pass-book, and represented that he was the plaintiff, and was paid the sum of $540, leaving to. the plaintiff’s credit the sum of $141.08. The person drawing the money signed a receipt for the same with the name James Wall. *

Mr. Connell, paying teller, was called as a witness on behalf of the defendant. He testified that at the time of paying the $540 he compared the signature on the receipt given by the party who received the money, with the signature of the plaintiff in the signature book. He said that upon the comparison he saw there were one or two slight changes; that when he made the comparison he saw a slight discrepancy, though not as clearly as shown him at the trial; that such discrepancy was sufficient to bring the matter to his mind and to put him on his guard. He also testified that after such comparison of the signatures he asked the person presenting the pass-book the following questions: where be was born; the name of the ship he came over in, and his mother’s maiden name; and that these questions were correctly answered ; that is, the answers were the same as those given by the plaintiff when he made the first deposit and entered in the signature book. On cross-examination this witness was asked the question: “ It was a sufficient discrepancy to bring the matter to your mind and to put you on your guard? ” and he answered: “To put me on my guard; and for that reason I asked carefully the other questions to corroborate my judgment.” On cross-examination he was also interrogated closely as to the differences between the signatures, and admitted that there were some quite material differences.

Mr. Crowley, signature clerk, was called and examined on behalf of the defendant. He testified that he was present at the time the $540 was paid, but heard.the paying teller ask but one question, and that was in reference to the vessel in which the party applying for tho money came over from Europe.

The papers on appeal contain a photograph of the signature written by the plaintiff at the time he made the first deposit, and also of the signature made by the party who drew the $540, upon the receipt therefor. It is obvious, upon inspection of these two signatures, that there are material differences between-them.

At the close of the testimony, on motion of defendant’s counsel, the court directed a verdict for the defendant, to which-direction the plaintiff excepted. The plaintiff’s counsel also moved for leave to go to the jury upon the issues of fact, and upon the question of negligence; which motion was denied, and plaintiff’s counsel excepted.

We are of the opinion that the judgment appealed from must be reversed because of the denial of the application on behalf of plaintiff to go to the jury upon the question of the negligence of the officers of the defendant.

Notwithstanding the notice printed on the inside of the cover of the pass-book, that all payments to persons producing the passbooks issued by the bank shall be valid payments to discharge-the bank, nevertheless it is well settled that the defendant and its officers were bound to exercise ordinary or reasonable care in making payments, although the' passbook was presented by the person to whom the payment was made. Appleby v. Erie Co. Savings Bank, 62 N. Y., 12; Kummel v. Germania Savings Bank, 127 id., 488; 40 St. Rep., 252. Although the testimony in the case at bar is not conflicting, still, it was of such a character that different inferences might be drawn from it by different persons as to whether or not the officers of the defendant exercised ordinary care in paying the $540 to the person who presented the book. The signature made by the plaintiff in the signature book when he made the first deposit, and the signature made by the party who produced the pass-book, and to whom the $540 was paid, were quite dissimilar; and different persons might reach different conclusions as to whether, in view of such dissimilarity, the paying teller of the defendant was not negligent in paying out the $540.. Moreover, the dissimilarity of the signatures was such that it attracted the attention of the paying teller and put him, as he testified, “ on his guard;” and different persons might reach different conclusions as to whether it was not negligence on the part of the teller to pay the money without asking other questions besides the three which he did ask.

It is true that he asked three questions and received correct answers thereto ; but there were other questions, which had been answered by the plaintiff when he made the first deposit, and which might have been put to the party who presented the passbook. These questions were: The residence; the occupation; the year when he was born; the year he came over in, and the-father’s name. So far as appears by the evidence, if these questions had been asked, the ■ party presenting the pass-book could not have answered any of them.

Under these circumstances, the authorities are clear that the question of negligence should have been submitted to the jury.

In Shearman on Negligence, § 54, the law upon this subject is stated as follows : “ The question of negligence must be submitted to the jury as one of fact, not only where there is room for difference of opinion between reasonable men as to the existence ■of the facts from which it is proposed to infer negligence, but .also where there is room for such a difference as to the inferences which might fairly be drawn from conceded facts. Where this is the case the issue must go to the jury, no matter what may be the opinion of the court as to the value of the evidence or the credibility of the witnessesand many cases are cited in support of this doctrine.

In Willis v. Long Island R. R. Co., 34 N. Y., 670, the court said: “ On the trial of an issue of that nature (negligence), _ if there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion in respect to the fact of negligence that may be drawn legitimately from the circumstances proved by the average of men of common sense, ordinary experience and' fair intentions, the case should not be taken from the j ury. It is only where the case is entirely clear upon the testimony, where there is no room for rational doubt either as to the circumstances proved or as to the conclusions of fact which may properly be drawn from them, that a judge is justified in deciding the question of negligence as matter of law.”

In Wait v. Agricultural Ins. Co., 13 Hun, 371, the court said : “ The facts and circumstances are such that different minds will ■come to different conclusions on the question of occupancy, and that makes it a very proper case for a jury. It does not follow that because there is no contradictory testimony the court must take the question from the jury and determine it as one of law ; ■on the contrary, if different results will be reached by different minds the question must go the jury.”

In Appleby v. Erie County Savings Bank, supra, which was a case similar to the case at bar, the court directed a verdict for defendant, and such direction was held to be correct in that particular case. Church, Ch. J., delivering the opinion of the court, however, said: “ The only point upon which I have entertained any doubt in this case is upon the question whether the teller was negligent in not observing the dissimilarity between the signature upon the receipt, upon which the money was paid, and the signature of the plaintiff upon the book when the first deposit was made should not have been submitted to the jury.

“ In this case, if the two signatures were so dissimilar as when compared the discrepancy would be easily and readily discovered by a person competent for the position, then the failure to discover it would be evidence of negligence which should have been passed upon by the jury. It would not be evidence of negligence if the difference were not marked and apparent, or if it would require a critical examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion.

“ The plaintiff is the appellant, and must establish that an error was committed on the trial, and the difficulty is that it does not appear affirmatively that the difference in the signature was so manifest as to require the question to be submitted under the foregoing views. There was no direct evidence that it was of that character, and we cannot have, as the court below had, the benefit of a personal inspection. The difference in certain letters may not have been such as to indicate a different handwriting, and the same remark is applicable to evidence that one was better than the other. We have no means of determining but that the ■court decided that the dissimilarity was of such a character that negligence could not, within the views above expressed, be predicated upon a failure to discover it, and such decision would not be erroneous in law. The tendency of the evidence is in that direction.”

Kummel v. Germania Savings Bank, supra, was also a case in which the officers of the defendant had paid money belonging to the plaintiff to a person not entitled to receive it, upon the presentation of the pass-book and upon a forged receipt. In that case the question of the negligence of the officers of the defendant was submitted to the jury, and the plaintiff had a verdict in his favor. Haight, J., delivering the opinion of the court, said: “ The question thus presented for the determination of the jury was as to whether the officers of the defendant had exercised ordinary care and diligence in, seeing that the person to whom the money was paid was authorized to receive it. The first question which we are called upon to consider is as to whether the evidence was of such a character as to justify the submission of this question to" the jury. The $350 item was paid by the cashier, Frederick Koch. He states that he asked the person presenting the bank book where he lived, and that he at first answered Hew York, and that afterwards he stated that he had lived in Brooklyn, before that, at 56 Tillary street; that he did not ask him any further questions but paid him the money. The other payment was made by Oscar Thomas, a clerk, who assisted the cashier. He judged from the first that the signature to the receipt was not exactly right, and asked the person presenting it if he could not write with a more fluent hand, and received the answer that he , was not feeling well. He thinks he put the other questions to him appearing upon the signature book, and that they were .answered correctly. As to the payment of the $350 receipt, the question of negligence was clearly for the j ary. It affirmatively ■appears that the cashier did- not avail himself of the means at hand to identify the person presenting the pass-book and forged receipt. As to the $100 payment, the question is involved in more doubt, but in view of the fact that the acting cashier making the payment was an interested witness, that the signature to the receipt was such as to lead him to judge that it was not right, and that upon the trial the signature of the plaintiff, as well as that upon the receipt, was before the court and the jury for comparison, upon which the variance may have been so great as of itself to put a prudent person upon inquiry, we are inclined to the view that this question was also one for the jury, and that no error is apparent that would justify a reversaland the judgment was affirmed.

■ In the case at bar, the dissimilarity of the signatures attracted the attention.of the paying teller and, as he testified, put him on his guard, and he asked but three questions out of eight which might have been put. Under the authorities above mentioned, and many others that might be cited, we are of the opinion that the question of negligence should have been submitted to the jury.

It was set up in the answer that the payment to the wrong person was caused partly by the negligence of the plaintiff in disclosing the. answers to some of the above mentioned questions to a stranger, and there was some evidence upon the trial that tended to support this allegation. If, however, the question of. contributory negligence on the part of the plaintiff was involved, that question also should have been submitted to the ju^y.

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

Judgment affirmed, with costs.


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    John L. Brewster, Resp’t, v. William L. Boyle et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Default—Opening—Affidavit.
    A motion to open a default was denied with leave to renew on further papers. Held, that a subsequent motion would not be granted on an affidavit which failed to outline any defense. .
    2. Contract—Purchase of mortgages—Tender—demand.
    In consideration of an extension of time within which certain mortgages were to be made payable, defendants agreed in writing to purchase two subsequent mortgages within thirty days. Held, that it was of no consequence whether a demand for the money was made within the thirty days, and the question of tender would only affect the matter of interest.
    Appeal from order denying motion to open default and vacate judgment.
    Action to enforce contract for the purchase of certain mortgages. A motion to open a default was denied, with leave to renew on further papers. On the second motion the following affidavit was presented:
    “ Camille Weidenfeld, being duly sworn, deposes and says that, he is a member of the copartnership of L B. Newcombe & Co., bankers and brokers, doing business at No. 54 Wall street, in the city of New York; that he is one of the defendants in this action and that the summons and complaint were served upon him, to the best of his recollection, upon the 23d day of February, 1892, and he thereupon and on said day delivered the copy so served to his-attorney, Frank Sullivan Smith, with the statement that they had been served as aforesaid. Deponent further says that he has a good and substantial defense to this action, and that the facts upon which such defense is based, and which this defendant will prove at the trial hereof, are these, to wit: That heretofore, and on or about the 10th day of December, 1891, this defendant entered into a contract with the Squires & Whipple Co. for the purchase of the premises mentioned in the complaint, upon the consideration of the conveyance to said Squires & Whipple Company of a certain house owned by this defendant in Orange, N. J., and his assumption of an indebtedness of $47,000, then stated to be a lien upon said premises and held by the plaintiff; which said indebtedness said plaintiff at that time, and prior to the execution of said contract, agreed, and which agreement was part of the consideration of said contract, that said indebtedness should be secured by mortgage upon said premises (consisting of two lots), as follows: A first mortgage of $20,000 upon each of said lots, and a second mortgage of $4,000 upon one of said lots, and a second mortgage for $3,000 upon the other lot. That said first mortgages were each to mature in three years after the execution of the deed to be delivered, and said second mortgages were to mature one year after Such execution. That relying upon said agreement, and the good faith of the plaintiff in the performance thereof, this defendant thereupon entered into a contract for the sale of said premises to the defendant William Lewis Boyle for the sum of $20,000, and thereafter said Boyle assigned said contract with plaintiff to William W. McFarland ; all of which contracts of sale were made upon the consideration, among other things, of the agreement of the plaintiff regarding the adjustment of the mortgage debt as aforesaid. That upon the 15th day of December, 1891, the date when, under the contract to this defendant, a deed was to be given of the premises in the complaint mentioned, and said William W. McFarland being ready and willing to carry out his part of said contract, the plaintiff sought to relieve himself from his agreement to adjust the mortgage debt as aforesaid, and then and there refused absolutely to make such adjustment, notwithstanding the fact that his undertaking so to do was the moving cause for the execution by this defendant of said contract for purchase; but plaintiff insisted that $7,000 of said principal sum secured by second mortgage as aforesaid should be paid immediately, but agreed that in case this defendant would pay to the plaintiff the sum of $500 he would then carry out his contract, which this defendant refused to do. Deponent further says that having received from said defendant Boyle the sum of $20,000, according to the terms of the contract between these defendants, and said Boyle having assigned his interest in said contract to said McFarland, this deponent, not because he recognized any liability, but for the purpose of avoiding unnecessary delay and embarrassing negotiations, and not with the intent of releasing any of his rights, wrote said plaintiff a letter on said 15th day of December, 1891, copy whereof is hereto annexed, which was also signed by said Boyle. That in and by the terms of said letter these defendants agreed to pay for and take an assignment of the second mortgages, as aforesaid, within thirty days from the date of said letter. Deponent further says that as appears by the complaint herein, and the letter ■of 0. L. Westcott, dated January 29, 1892, * * * no tender of said mortgages or bonds was made to these defendants within said thirty days, and that bv reason of the failure to make such tender deponent is advised that any subsequent ténder is of no avail, and that he is relieved ■ from whatever liability he might have incurred by writing the letter of December 15, 1891, hereto annexed. Deponent further says that there was no mutuality of engagement growing out of said letter of December 15,1891, and the same is insufficient in law, for the reason, among others, that said letter was without consideration, and fraudulently extorted from these defendants by duress practiced upon them as aforesaid by the plaintiff.
    “ Camille Weidenfeld.”

      F. S. Smith, for app’lts; C. L. Westcott, for resp’t.
   Per Curiam.

When the motion to open the default in this-case was originally denied, leave was given to the defendants to renew upon further papers. They were thus plainly advised that, an affidavit of merits was insufficient to entitle them to be relieved. They evidently understood that they would be required to present a good prima facie defense, and also to show good faith in making the application. But they have done neither. The affidavit of the defendant Weidenfeld, conceding its absolute verity, fails to outline any defense.

The defendants, for a valuable consideration, viz., the extension of the time within which certain mortgages were to be made-payable, agreed to purchase two second mortgages for $3,000 and $4,000. respectively, within thirty days from the 15th day of December, 1891. These facts are uncontradicted. The agreement was in writing, and specified the extension of the prior m'ortgages from one to three years as the consideration for the contract to purchase. The original contract providing that these first mortgages should run for one year was also in writing, and a copy is to be found in the record. There is not, therefore; a suggestion of a defense, nor of good faith in the making of this application. It was of no consequence whether a demand for the money which the defendants agreed to pay was made within the-thirty days, and the question of tender would, under the circumstances, only affect the matter of interest. It is plain that the defendants have no substantial merits, and their application was. properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

Yam Brunt, P. J., O’Brien and Barrett, JJ., concur.


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    Frederick A. Ringler et al., Resp’ts, v. William M. Reynolds and Jessie Reynolds, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Fraud—Agency—Contracts for purchase of land.
    Plaintiffs employed defendant Reynolds to purchase certain land for them.- He represented that the and belonged to a distant relative of his-wife, and could not be bought for less than a specified sum, but subsequently procured a contract for it-in the name of his wife for a much less-sum, and procured plaintiffs to take a contract from her, concealing the fact that she was his wife. In an action to vacate the latter contract and for an assignment of the contract held by the wife, Held, that the burden. ■was upon her to show that she was a bona fide purchaser and not a mere shield for her husband’s deceit, and that in the absence of such proof, a judgment for plaintiffs was properly granted.
    Appeal from judgment in favor of plaintiffs entered after trial at special term.
    The facts appear fully in the opinion of the special term, as follows :
    Patterson, J.—The facts appearing by the proofs in this cause entitle the plaintiffs to the judgment they aslc for. Some technical criticism may be made of the complaint, and if the success of the plaintiffs depended upon the establishment of the allegations of the complaint that Mrs. Reynolds had knowledge of the imposition practiced by her husband upon the plaintiffs, it must be conceded that no adequate proof thereof appears upon the record. But the plaintiff’s right of recovery does not depend upon any conscious participation of Mrs. Reynolds in the alleged fraud, nor upon her accepting the fruits of it with knowledge that it was committed. All the averments of the complaint on that subject may be disregarded, and a cause of action of equitable cognizance remains, the facts alleged being substantially and in brief as follows, viz.: That the plaintiffs employed Mr. Reynolds to negotiate for them as their agent the purchase of the land mentioned in the complaint; that he accepted the agency and began the negotiations; that during their pendency'he represented to the plaintiffs that the property belonged to a distant relative of his wife, and could be bought for not less than $55,000; that these statements were false, and were fraudulently made to induce the plaintiffs to agree to give that sum for the land; that, on the plaintiffs agreeing to that price, Reynolds procured from the owners of the property a contract to sell the same to his wife for $49,000, which fact he concealed from the plaintiffs, and procured them to enter into a written contract to purchase from Mrs. Reynolds at $50,000, which contract they signed in ignorance of the fact that Mrs. Reynolds was the wife of their agent in the transaction, and was not the actual owner; that they paid $5,500 on account in a check to the order of Mrs. Reynolds, part of the proceeds of which was actually used by Reynolds to make the first payment on account of the contract through which Mrs. Reynolds was to acquire the title; and they ask that the contract between themselves and Mrs. Reynolds be canceled, and that she be compelled to assign to them the contract taken in her name as purchaser. All the facts thus generally stated have been proven in detail to my entire satisfaction. It is of no consequence that Mr. Reynolds was not a broker. He undertook to negotiate a purchase of the property for the plaintiffs, and it is evident that, some time during the progress of the negotiations with Mr. Embree, who represented the real owners of the land, he formed the scheme of making a profit out of the transaction by taking a contract in his wife’s name, inducing the plaintiffs to believe that the real owner was a distant relative of his wife, and then to procure the enhanced price from them. The several stages of the development of this scheme may almost be traced in the testimany. It is clear from what Mr. Embree says that Reynolds did not pretend to be acting for himself or for his wife until just before the contract with her was signed. He stated to Mr. Embree that his principals were out of town, and lived in Boston, and it was not until the matter was about being closed that he said, in substance, that the purchase was a good thing, and he would have the contract made in the name of his wife.
    The case is simply one of an agent employed to buy specific property for a principal taking for his own benefit the title in the name of a third party, also advancing nothing, holding such third party out as the real owner and seller, and then selling that same property to the principal at a greatly increased sum; the principal paying all that is to be paid to the real seller, and also the profit to the agent’s alter ego. It cannot be doubted that if the agent had taken the contract in his own name a court of equity would give the principal the benefit of it. Taylor v. Salmon, 4 Mylne & C., 138. If the third party is the mere cover for the agent, and it appears clearly that the interposed title or right of such third party is only colorable, and one taken to conceal the acts of the agent, the technical rules of rescission do not apply ; for in equity the real nature of the transaction will be regarded, the purchase will be considered as made for the principal, and, all the parties being before the court, substantial justice will be done. If Mrs. Reynolds were a bona fide purchaser of the land, and as between her and the original vendors there had been, not only a formal contract, but an actual authorized purchase and an honest transaction, a different question would arise, and the points argued by the learned counsel for the defendants would then require serious consideration. But such is not the case. Although Mrs. Reynolds has answered the complaint, there is not a syllable of reliable testimony to show that she ever authorized her husband to buy this property for her, or that she ever knew anything about it prior to her signing the agreement. She did not present herself as a witness on the trial, although she might have cleared up the whole matter, and it is not for her husband to constitute himself by his mere statement her agent in a transaction in which he was acting on his employment by others, and necessarily in 'such a way as would prevent his acting for her. Agency for his wife seemed to have occurred to him after he had planned the scheme of injuring the plaintiffs. His real principals were the plaintiffs. From all that appears, Mrs. Reynolds may have been innocent of any intent to do wrong to the plaintiffs; but she stands on the record as a mere technical vendee of the land, as the person used to cover her husband’s design, as one introduced as a third party through and by whom the additional price of the property might be extorted from the real purchaser. The burden of proof was thrown upon her to prove that she was in reality a purchaser from the owners, and not only a nominal buyer, and that the transaction was honest and fair, and that she actually had constituted her husband her agent to buy this land, and that she was not a mere shield for his deceit. She has not even attempted to do this. I think there can be no doubt of the power of the court to cancel the contract of the plaintiffs with Mrs. Reynolds under the circumstances, and to go further, and determine that they are entitled to an assignment of the contract made by their agent in her name with the others; for the plaintiffs, in effect, paid everything that was paid to the vendors. They are entitled to a decree, but, all things considered, with costs only as against Mr. Reynolds.

      A. R. Dyett, for app’lts; H. Daily, Jr., for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of Mr. Justice Patterson at special term.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.