text:
    GEORGE WELLS and SOLOMON WELLS, Appellants, v. WILLIAM VAN AKEN, Respondent.

      Bill of particulars— may be ordm'ed in an action on an account stated.

    In this action brought on an account stated, the plaintiff} pursuant to a demand of the defendant, served a general bill of particulars without items giving the aggregate of their account at $2,985.77, and the aggregate of the defendant’s account at $2,127.18, leaving $858.64 as the balance claimed on an account stated. The defendant moved for a further bill of items averring that the accounts of the parties ran back for a period of about twenty-five years ; that there had been no complete and full settlement or adjusting of them, nor any balance struck or agreed upon, and that their truc and full amount was unknown to him; that he supposed that items had been omitted therefrom, and that if he found on full examination that an indebtedness existed against him, he desired to offer judgment for the amount thereof. The court ordered the plaintiffs to give the items of the account, unless they would stipulate to stand by their complaint on an account stated.

      Held, that the defendant was under the circumstances of the case entitled to have a bill of items.
    That the motion should have been granted without allowing the plaintiffs to withhold the bill of particulars by giving the stipulation referred to, but that as the defendant did not appeal this court would affirm the order as made.

      Hoffv. Benin (1 Abb. N. 0., 288) distinguished.
    Appeal by the plaintiff from an order denying a motion for a bill of particulars, made by the defendant, in case the plaintiffs should stipulate to stand on the complaint on an account stated and the bill of particulars as served, and ask no amendment authorizing proof of any items antecedent to the date when the balance is claimed to have been struck, and granting the motion in case plaintiffs failed to so stipulate.

      John E. Van Etten, for the appellants.

      Bernard é¡ Fiero, for the respondent.
   Bocees, J.:

This is an appeal from an order granting a motion for a further bill of particulars of the plaintiffs’ account, unless the latter should stipulate to stand by their complaint on an account stated, and ask for no amendment to allow proof of the items constituting the account.

The action is on an account stated. The defendant, before answering, made demand for a bill of particulars, in answer to which the plaintiffs served a general bill, without items, giving the aggregate of their account at $2,985.77, and the aggregate of the defendant’s account at $2,127.13; leaving $858.64 as the balance claimed on an account stated. A motion was then made for a further bill of particulars, giving the items of 'the account, which motion was granted, unless the plaintiffs should stipulate to the effect above stated.

It is in the power of the court to require the furnishing of a bill of particulars in all cases, to be exercised in its discretion with a view to meet and answer the ends of right and justice. It was so held in Tilton v. Beecher (59 N. Y., 176) and in Dwight v. Germania Life Insurance Company (84 id., 493), and in many other cases. It was said in the last case cited that the power of the court to order bills of particulars extends to all descriptions of actions, and could be exercised in behalf of either party thereto; and indeed such right is expressly declared by the Code of Civil Procedure (§ 531). It may well be that in general a bill of’ particulars will be unnecessary in an action on an account settled and stated. But whether necessary or not will depend on the issue the party may desire to raise by his pleading. If he intend to rest on a simple denial of the fact charged that the accounts had been examined and a balance struck, a bill of items of the account would be unnecessary. But he may wish to open the account — may wish to assail the balance of the account as stated, and this whether he does or does not intend to deny that the 'account was looked over and a balance struck. Tie may wish to have a re-examination of the accounts in order to have errors, mistakes and omissions in the former examination corrected and thus have the case disposed of at the trial on the merits. So a case may well be made in any action on an account stated wherein justice would require an order for a bill of particulars giving the items of the account. Then how stands this case in that regard % Has the defendant made a case showing his claims for a bill of particulars to be meritorious ? He avers in his moving papers in substance, that the accounts of the parties run back for a period of about twenty-five years; that there has been no complete and full settlement or adjustment of them, nor any balance struck or agreed upon, and that their true and full amount is unknown to him, that he supposes items which should enter into the accounts and into the adjustment of them have been omitted in making the balance claimed, and that on full examination of them, if it should be found that an indebtedness exists against him, he is desirous of offering judgment for the amount. Such is the ground of the application for the order in substance and effect.

Now on this state of facts it seems but right and just that the defendant be informed as to the items of the plaintiff’s account referred to in the complaint, which account constitutes the basis and consideration for the recoveiy claimed.

If right in what he believes to be the condition of the case on the facts, he is entitled to have the entire case fairly and fully tried on the merits, that is, on the items of the account, and this although ;lie complaint be on an account stated. The defendant is not debarred this light, because of the fact that the complaint is on an account stated. He may by his answer so frame and tender issues as that if supported, the entire accounts of the parties will be brought under examination. Even if he should defeat the plaintiffs’ action on an account stated, he may still insist, if his answer be framed with that end in view, that the merits of the controversy be determined by the trial of the case on full examination of the accounts, as he has the right to counter-claim in this action, instead of bringing a new action himself, or awaiting a new action by the plaintiffs.

Therefore, according to his showing on his application for a bill of particulars, the case must be considered the same as if in court on an unsettled account.

The case of Hoff v. Pentz (1 Abb. N. C., 288, to which we are cited, a Special Term decision by the way, or what is equivalent, a decision by a judge at chambers), differs materially from the present on the facts. In the account there rendei’ed was an item as follows: “Contract, 14,500.” The plaintiff claimed that the account was defective in respect to this item, in that it did not specify what the contract was for, or to whom, or when, or for what it was paid.

The learned judge held that the information sought for should be obtained by an examination of the party, and on that ground refused the application for a more specific bill of particulars. Such was the real point of that decision. A state of facts like the present was not there presented; and it may be added that if anything was then said in conflict with our conclusion on the facts here before us, we are unable to give the remark our concurrence.

Comment has been indulged on both sides, as to that part of the order which provides for the giving of the stipulation as an alternative for the furnishing of a bill of particulars. This provision was doubtless intended for the plaintiffs’ benefit. We are of the opinion that the motion should, in justice and right, have been granted, without the alternative given to the plaintiffs to stipulate and thereby affect its denial. The defendant was entitled, as we conclude on the facts here presented, to have a bill of particulars according to the ordinary practice, to the end that he might shape his proceedings in the action, after having the plaintiffs’ claim made specific and certain on the record as to the details of the account. But the defendant has not appealed, hence cannot be heard to complain of the order in any respect, and the plaintiffs may avoid the giving of the stipulation if they so prefer, by giving a bill of particulars. We therefore conclude that the order appealed from should be affirmed.

Present — Learned, P. J., Bockes and Landon, JJ.

Order affirmed, with ten dollars costs and disbursements for printing.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    JOHN CRAIGHTON, Appellant, v. THE AGRICULTURAL INSURANCE COMPANY of Watertown New York, Respondent.

      Policy of fire insurance — proofs of loss — when the company cannot object to their service after the expiration of the tim • fixed by the policy — what objections are waived by not being specified when the proofs are offered.

    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    The action was brought to recover for loss by fire of property insured by the defendant. The plaintiff was nonsuited, the court holding that he had failed to make proof of loss to the company, as required by the policy, and had not been excused from so doing.
    The plaintiff had procured a policy from defendant through Pond, their agent, to the amount of $300 on dwelling house and furniture and other things in Greenfield, about March third. There was added thereto, April second, forty dollars on potatoes and sixty dollars on cows, and the premium for the whole was then paid. A fire occurred Tuesday, April eighth, by which the property was destroyed. The next Monday, plaintiff went to Saratoga and notified Pond. Pond said he would notify the defendants and the adjuster would come. In about two weeks the adjuster,' Dewey, came where the fire had been and talked with plaintiff and asked him to come to Saratoga next morning and put in proofs of loss; said he would be at the Arlington. Plaintiff went there about eight, inquired for the adjuster and learned that he had paid his bill and gone, lie then called on Pond and stated these facts. Pond told him to go home and rest easy; that the adjuster would come and he would get his money; that if the adjuster did not come he, Pond, would send plaintiff blanks for proofs of loss; told plaintiff not to go to a lawyer. Plain tiff returned and waited. The adjuster did not come nor the blanks.
    Before May seventeenth, Pond wrote to Dewey of plaintiffs’ having been to Saratoga, to which Dewey replied, and Pond informed plaintiff of the reply. Pond in that letter told plaintiff that the affair had bee i taken out of his, Pond’s, hands by the adjuster; that the adjuster had come to the conclusion that plaintiff was the incendiary and wanted Pond to have nothing more to do with the affair. To this plaintiff replied, May seventeenth, acknowledging receipt, and Pond wrote him the eighteenth that he had mailed the plaintiff’s letter to the adjuster, and perhaps the adjuster would forward blank proofs of loss and perhaps would come again and see plaintiff. Plaintiff heard nothing more from Pond or the adjuster. On the seventeenth of August plaintiff sent proofs of loss to defendant, which they received the twentieth. They wrote to plaintiff’s attorney that they could not accept these proofs, as the time for service of proofs had expired by limitation. On the trial the plaintiff asked to go to the jury on the question of waiver. This was refused. The time for serving proofs of loss was forty days after loss, viz., May eighteenth.
    The court at General Term said : “ The principal question must be whether anything done by the company before that time might justly have been inferred by the plaintiff to be a waiver of the limitation as to time, so that he was induced to delay till the time had gone by, because, when the proofs were afterwards sent, they were refused by the company. There 'was, therefore, no such acceptance by the company at a subsequent time, as would bring the case within the principal point decided in Goodwin v. Mass. Mutual Life Insurance Company (73 N. Y., 480).
    “ If we look at the facts in Underwood v. Farmers J. S. Ins. Go. (57 N. Y., 500), we shall find that those were not stronger in that plaintiff’s favor than these of the present case are in favor of this plaintiff. It was there held that the question of waiver before expiration of the limited time was for the jury. If we compare the facts in the present case with those in Bloosom v. Lycoming Fire Insurance Company (64 N. Y., 162), cited by defendant on this point, we shall see several differences. In that case, the visit of the adjuster was not known to the plaintiff, and, therefore, could not have influenced his action. It was casual and without direction from defendant. The adjuster did not by act or declaration intimate that defendant was liable. There was no communication between plaintiff and defendant’s agents till the actual service of proofs of loss. In all these particulars, the present case is directly contrary to that. The plaintiff might have reason to believe, up to the time when he received the letter from the agent, just before May seventeenth, and even when he received that of May eighteenth, that the matter was under the consideration of the company. And the very day that the agent wrote that letter of May eighteenth was the last day to serve proofs of loss. Of course, on the appeal from a nonsuit, the plaintiff is entitled to all inferences which the jury might have drawn from the evidence. And we think that they might have found that the plaintiff delayed to serve his proofs of loss in a justifiable reliance on the expectation that the adjuster, who had failed to keep his appoinment at Saratoga, would come again or would send blanks through Pond. "We think the plaintiff had a right to go to the jury on the question of waiver.

      “ The defendants take the further ■ objection that the certificate of the magistrate or notary living nearest the place of the fire was not attached. The company, refused to accept the proofs of loss because the time of service had expired. They made no other objection.- In Qilligan v. Commercial Fire Insivrance Company (27 N.Y. Sup. Ct. [20 Hun], 93; affirmed, 87 N. Y., 626), the defendants objected to the certificate. Plaintiff sent another, to which defendant also objected on the ground that the person signing was not the nearest to the place of fire.

      “ In the present case the defendant made no objection to the form of the proofs. Had they done so the plaintiff might have remedied the defect, as was attempted in the case last cited. Further, the proof given on the trial does not show what the residences were at the time of the fire or of signing the certificate. Lawton, who signed, was the nearest notary public, and the language of the policy is open to the construction that the certificate may be signed by the nearest notary or by the nearest magistrate.

      “ The judgment should be reversed, new trial granted, costs to abide event.”

      William H. McCall, for the appellant.

      A. B. Sawyer, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bookes and Landon, JJ.

Judgment reversed, new trial granted, costs to abide event,


author: Per Curiam :

text:
    JULIA NUGENT, as Administratrix, etc., Respondent, v. LUCY VANDERVEER, Appellant.

      Act for the protection of human life at public bathing places —1879, chap. 828 — does not justify a recovery where the party is reckless or negligent.
    Although chapter 828 of 1879, providing for the protection of human life at public watering and bathing places, imposes upon the proprietors of bathing establishments a duty which they are bound to discharge, and for a failure to comply with which an action to recover the damages (hereby occasioned would result, yet the statute does not declare that such liability shall follow from the death of a person by drowning, or an injury from any other cause ' occasioned by the act of bathing or using the bathing place of a proprietor, when the person injured or drowned shall have been reckless- or negligent, and shall have caused his own peril or death by such recklessness or negligence.
    The rules of law governing actions brought under the statute giving a right of action for death occasioned by the negligence of another, are applicable to actions brought under this act.
    Motion for a reargument.
    Tbe action was brought to recover damages for the loss of the plaintiff’s husband, who was drowned while bathing at Coney Island. The opinion of the General Term reversing the judgment of the court below was delivered at the January term, and is reported in 3S Hun, page 487.

      James A. O' Gorman, for the respondent, for the motion.

      T. G. Cronin, for the appellant, opposed.
   Per Curiam :

The application for a reargument cannot be granted, for the reason that the learned justice upon the trial of the cause declared the rule of law applicable to the case, to be that if the intestate were careless and brought his life into peril and danger and consequently lost it, the defendant was liable if he was negligent and failed to comply with the provisions' of the statute when such compliance would have resulted in saving the decedent's life.

This enunciation of the doctrine controlling this case cannot be sustained. The obligations imposed by the legislature by the act passed May 19, 1879 (chap. 328), devolved a duty upon the proprietors of bathing establishments which they were bound to discharge, and, as held in the case of Willy v. Mulledy (78 N. Y., 310), a right of action would result from a breach of these obligations by which damages Avere sustained. The statute does not declare that liability shall follow, however, from the death of a person by drowning, or an injury from any other cause occasioned by the act of bathing or using the bathing place of a proprietor, even although the person injured or drowned shall have been reckless or negligent and have caused his own peril or death b}7 such recklessness or negligence ; and there is nothing in the statute itself which indicates that there was any intention on the part of the legislature to provide for compensation under such circumstances. The object was the security of life and person, and in the construction of the statute as to its requirements and obligations this must be kept in view, and so far as its provisions will justify it the persons whom it affects held accountable. This view makes the rules of law governing actions brought under the statute for death occasioned by the negligence of another applicable to this case and cases of a kindred character.

By the reference in the former opinion herein, to the second section of the act mentioned, it was not intended to suggest that the only consequence resulting from a failure to comply with the requirements of the act was punishment for a misdemeanor. Indeed, the consideration of that section was not necessary to the determination of the question presented.

The application must, therefore, be denied.

Present — Davis, P. J., Brady and Daniels, JJ.

Motion for reargument denied.


text:
    PETER GROTH, Respondent, v. THOMAS J. WASHBURN, Appellant.

      Evidence — when a husband, cannot avail himself of a judgment recovered by his wife against the same defendant for the same accident.

    This action was brought by the plaintiff to recover damages, claimed to have been sustained by him in respect to payments for medicines, medical expenses, etc., for his wife which were rendered necessary because of injuries resulting from the negligence of the defendant’s driver. Upon the trial the court refused to allow the defeiidant to call witnesses to disprove the negligence of which he was accused, upon the ground that the plaintiff’s wife had previously recovered damages against the defendant for the same accident.

      Eeld, error ; that the former judgment was neither an estoppel in favor of the plaintiff, nor was it conclusive on the subject of the defendant’s negligence.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the New York Circuit.
    Thornton, Tarle & Kiendl, for the appellant.

      J. H. Whitelegge, for the respondent.
   Per Curiam :

This action was brought by the plaintiff, as husband of the defendant, to recover damages claimed to have been sustained by him in respect to the payment for medicines, medical expenses, etc., for his wife, rendered necessary by alleged injuries to her resulting from negligence of the defendant’s driver. The plaintiff’s wife had previously recovered damages for the same accident.

On the trial the defendant’s counsel offered witnesses to disprove —to use the language of the offer — the negligence of which he Was accused. This offer was rejected, and the defendant excepted.

The rejection of the evidence seems to have been predicated of the conclusion that the judgment record in the action against the defendant for injuries received by her brought by the wife, had been introduced in evidence and ‘was conclusive upon the subject of the defendant’s negligence. This, we think, was an erroneous ruling, and one which requires that the judgment should be reversed. The action was not between the same parties or those in privity with them. It was not in reference to the same subject-matter. It involved it only incidentally, and it was not an adjudication of the rights of the plaintiff. His action was entirely different from that of the wife. The judgment record was neither an estoppel in favor of the plaintiff nor was it conclusive evidence on the subject of negligence. The defendant had the right to present any proofs upon that subject he could command, and the denial of this right, as already suggested, was error.

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

Present — Davis, P. J., Brady and Daniels, JJ.

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


author:
Daniels, J.:
      Davis. P. J.: Brady, J.

text:
    JAMES W. WHITNEY and Others, Appellants, v. EMIL HIRSCH and TILLIE STERN, Respondents.

      Attachment —■ in what actions it may he issued — Code of Civil Procedure, sec. 635 — when affidavits made in another action may he used on a motion for an attachment.

    In this action, brought against the defendants Hirseh and Stern, who were alleged to have been carrying on business as partners, to recover the value of goods and merchandise sold to them, an attachment was issued upon the ground that the defendant Hirseh had disposed of his property with intent to defraud his creditors, by making a general assignment in which he preferred his co-defendant Stern.
    It was alleged in the complaint, and in the affidavits upon which the attachment was granted, that the plaintiffs were induced to sell and deliver the goods by fraudulent representations concerning the defendants’ financial condition.

      Reid, that the action was one in which an attachment might properly be issued, it being an action to recover damages for a breach of an express contract other than a contract to marry, within the intent of subdivision 1 of section 685 of the Code of Civil Procedure, and that the insertion of the allegations of the fraudulent representations did not convert it into an action in tort. (Brady, J., dissenting.)
    That if it were considered to be in tort and not on contract the attachment might still be issued, as it would be an action to recover damages for “fraud ” or for “an injury to personal property,” within the meaning of subdivision 8 of section 635 of the Code of Civil Procedure. (Per Daniels and Davis, JJ.) Wittner v. Von Minden (27 Hun, 234), distinguished and criticised.
    Some of the affidavits used upon the hearing were not made in this' action, but in part consisted of copies of affidavits and extracts from others, made and filed in an action against the same defendants, brought by Horace B. Claflin and others. These copies and extracts were included because of an alleged inability to obtain affidavits in this action from the persons whose affidavits were used in the Claflin action.

      Held, no error.

      Bennetts. Edwards (27 Hun, 352) followed; Würnerdingv. Cunningham (65How., 345) distinguished.
    Appeal from an order, made at Special Term vacating an attachment.

      Charles II. Smith, for the appellants.

      Blumensteil <& Ilirsch, for the respondents.
   Daniels, J.:

According to an affidavit of one of the plaintiffs, on which with others the attachment was issued, and the amended complaint in the action, the plaintiffs sold and delivered to the firm of Emil Hirsch, alleged to be composed of the defendants, goods and merchandise amounting in value to the sum of $1,080.25, and it is for the recovery of that amount that judgment was demanded in the action. But it has been insisted that an attachment could not issue in the action brought for the recovery of this indebtedness, for the reason that it is alleged in the complaint, and also stated in the affidavits, that fraudulent representations were made concerning the financial condition of the business, by which the plaintiffs were induced to sell and deliver the goods. This, however, under section 635 of the Code of Civil Procedure, did not deprive the plaintiffs of the right to an attachment upon complying with what has been further required to be shown by the next succeeding section. For a warrant of attachment has been allowed to be issued in an action for the breach of a contract express or implied, other than a contract to marry, and such a breach of contract has been alleged in the complaint and sustained by the affidavits upon which the attachment has been issued. For it has been made to appear that the goods were sold and delivered at the request of the defendants, and that the price to be paid for them was agreed upon, and the debt has become due and that price has not been paid.

These facts present the case of a contract made to pay the purchase-price of the goods, and0 the omission on the part of the defendants to perform their contract and entitled the plaintiffs to an attachment under the first subdivision of the section, by complying with the additional requirements contained in the next section. And the action for the recovery of the debt was not deprived of its character as an action upon contract, by reason of the further fact that the debt had been fraudulently contracted, and the defendants upon the recovery of a judgment could be arrested and imprisoned upon the execution. But if this action should-'be held to depend upon the allegations of fraudulent representations inducing the sale, it would still be one in which an attachment could issue. For by subdivision 3 of the same section, an- attachment has been authorized for fraud, negligence or other wrongful act, as well as for any other injury to property not mentioned in subdivision 2 of the same section in which an attachment has also been allowed. And an injury to property has been defined by subdivision 10 of section 3343 of the Code to include an actionable act whereby the estate of another is lessened, other than a personal injury or the breach of a contract.” The fiaudulent representations made were certainly not a personal injury nor a breach of a contract, but they did constitute an actionable act for fraud whereby the estate of the plaintiffs was diminished or lessened, so far as they ware induced to part with their goods in reliance Upon the truth of the representations. And under this definition of an injury to personal property an attachment might be issued in an action based upon it, under subdivision 3 of section 635 of the Code. This subject was considered in Bogart v. Dart (25 Hun, 395), where it was held, by this G-eneral Term, that an attachment might be issued to recover for 'advances made upon the faith of forged bills, notes and acceptances, and it was followed in Weiller v. Schreiber (63 How., 491).

It has been supposed that Wittner v. Von Minden (27 Hun, 234) by its language restricted this section of the Code so far as to exclude from it an action of the present description; but it did not, and if it did, as the cases have been prescribed by the statute in which attachments may be issued, the act itself would be required to be followed, rather than a determination tending to abridge its’ effect. As the present case has been presented, it is included within the first subdivision of section 635. But if any doubt could exist as to the correctness of that construction, it would surely be within the provisions contained in the third subdivision of the same section.

■ The attachment was issued upon the further ground that the defendants had disposed of their property with intent to defraud their creditors, and that charge was chiefly made to depend upon a general assignment executed by Emil Hirsch himself, in which he preferred the other defendant Tillie Stern, in the amount of $3,144.31. This preference has been assailed as unlawful for the reason that she was in fact a partner with the assignor in the business carried on in his name and assigned by the assignment. And affidavits have been produced tending veiy directly to establish the fact that she was a partner in this business. These affidavits were not all made in this action, but in part consisted of copies of affidavits, and extracts from others, made and filed in an action against the same defendants, brought by Horace B. Claflin and others. These copies and extracts have been included, because of an alleged inability to obtain affidavits in this action from persons whose affidavits were made in the Claflin suit. And it has been held in Bennett v. Edwards (27 Hun, 352) that such extracts may be used under this state of the facts, and the correctness of that conclusion was in no manner doubted in Wilmerding v. Cunningham (65 How., 345) where only the results deemed to be supported by the affidavits were contained in that upon which the attachment was based, and that was held not to be sufficient and the same rule was followed in Greenbaum v. Dwyer (66 How., 266.)

Under the facts as they have been disclosed, therefore, the extracts from the affidavits on file may lawfully be made use of to ¡support the plaintiffs’ right to the attachment. The statements extracted and the affidavits copied were made under the restraints ■of oaths administered for that purpose, and if they could be shown to be willfully false, tbe persons making them would be liable to conviction and punishment for the crime of perjury, under the laws of the State, as much so, certainly, as though the affidavit containing these extracts and those copied was made in this action. These extracts and copies, to a reasonable degree of certainty, establish the fact that the defendant Stern formed a partnership with the defendant Hirsch in the business, and she probably continued to be a partner through the time when the plaintiffs’ goods were sold and delivered. The only qualification of her relation to the business was stated by her husband to be that he informed Mr. Hirsch that he wanted to withdraw the moneys which had been invested in the business on behalf of his wife. That was objected to by ITirsch, because it would break him up to withdraw the capital, and he is stated by her husband to have added : “You remain here; I will engage you as assistant clerk in the business, under a salary; arranging that the money was to remain in the business until January 1, 1884, which I consented to on behalf of my wife.” This was not considered by Hirsch to exclude her from her rights as a partner in the business, and he is so stated to have informed the plaintiffs’ attorney on the 21st day of July, 1884, when, according to his affidavit, Hirsch said Tillie Stern and himself were partners. And a like statement is verified by Leo Frank, a copy of whose affidavit, made in the Claflin suit, was. contained in the papers upon which the attachment was issued.

As the case was presented, there was certainly reasonable ground for believing that Tillie Stern continued to be a partner with Hirsch all through the times when the plaintiffs’ goods were sold and delivered, and the assignment was subsequently made, which was on the 22dof November, 1883, and, being a partner in the business, it was fraudulent to prefer her as a creditor in the general assignment made for the benefit of creditors. Substantially the same state of facts was presented in the case of Claflin v. Hirsch, where it was held by this General Term that the attachment could legally be issued and sustained, for the reason that there had been this fraudulent disposition of the debtors’ property. The attachment issued in this action ought not to have been vacated, and the order vacating it should be reversed, with the usual costs and disbursements, and an order entered denying the motion.

Davis. P. J.:

My brothers Brady and Daniels not concurring in their views in this case, it becomes necessary that I should state the grounds on which I think the disposition of the appeal should be made.

The action is brought to recover for goods sold and delivered. It is therefore an action upon contract. In such an action under the provisions of section 549 (sub. 4), where for the purpose of arresting the defendant it is claimed that the defendant was guilty of á fraud in contracting or incun'ing the liability, it is necessary that the allegations of fraud should be made in the complaint in issuable form so that they may be tried by á jury or by the court, but this fact does not change the action from one upon contract. It only affects the remedies, provisional and final, and subjects the plaintiff if he fail to prove the alleged frauds to a new action upon the contract as one not fraudulently contracted.

As the action notwithstanding the allegation of fraud continues to be one upon contract, there seems to me to be no reason why the i attachment may not be sustained. The case relied upon by Brady, J., is not applicable. (Wittner v. Von Minden, 27 Hun, 234.) That was a case where the action was brought to recover damages for an alleged fraud, and not to recover the purchase-price of goods sold and delivered.

If the question decided in Wittner v. Von Minden were an open qne, it might well be doubted whether the attachment in this case could not be upheld under the third subdivision of section 635 of the Code, which gives an attachment in an action for any injury to personal property, in consequence .of negligence, fraud or other wrongful act; and under the definition of injury to personal property (sec. 3343, sub. 10 of the Code),'the inducing of a sale and delivery of property by fraudulent representations is clearly an act for which an attachment is allowable.

I concur, therefore, with my brother Daniels, that the order in this case should be reversed.

Brady, J.

(dissenting):

The complaint herein alleges that the defendants fraudulently contracted the debt for which judgment is demanded, and it is thus brought within the provisions of subdivision 4 of section 549 of the Code, which distinctly provide that where such an allegation is made the plaintiff cannot recover unless the fraud is established ; and further, that a judgment for the defendant is not a bar to a new action upon the contract only. In such an action this court held distinctly that an attachment under the provisions of the Code could not be maintained. (Wittner v. Von Minden, 27 Hun, 234.)

The judgment under the complaint in this action in favor of the plaintiffs would authorize the imprisonment of the defendant if it were not paid. This view renders it perhaps unnecessary to consider any other question suggested upon the appeal. But it may not be improper to observe, it appearing from the affidavits that there is a further suggestion that the property of .the defendants was disposed of by them, in whole or in part, for the purpose of defrauding their creditors, that if the action were simply to recover a sum of money founded upon a contract, and the court were satisfied that a fraudulent disposition of the property had been made, it would grant an attachment as one of the provisional remedies secured to litigants by the provisions of the Code. But this, as already shown, is not such an action. Nothing either in the case of Muser v. Lissner (MSS. opinion in this Dept., October, 1884) or in Ledwich v. McKim (53 N. Y., 307), at all conflicts with the results stated.

The plaintiffs are bound, in the prosecution of their remedy, by the allegations in the complaint, and their success, as we have seen, is dependent upon the proof of those allegations. If not successful they are not deprived, as we have seen also, of a new action founded upon the contract alone, by which the defendants became responsible. They would not be entitled, therefore, even if the evidence sufficiently established the fact, to an attachment in this action, upon the ground that the defendants had fraiidulently disposed of their property with the intention to defraud their creditors.

For these reasons the order appealed from should be affirmed.

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


author:
Daniels, J.: Davis, P. J.:
      Tan Brunt, J.

text:
    ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant, v. JAMES E. SMITH, Respondent. SAME v. CARROLL PHIPPANY, Respondent.

      Assessors’oath — what defeats in form will not invalidate the tax — power of the assessors to correct the oath after the time fixed by the statute — an injunction to restrain the collection of a tax only allowed in case of great necessity.

    This action was brought to restrain a tax collector from collecting a tax imposed upon the plaintiffs property in the year 1885, upon the ground that the oath of the assessors attached to the assessment-roll was defective in that it was made in the form prescribed by section 8 of chapter 176 of 3851, instead of that prescribed by chapter 201 of 1885. The two forms were the same, except that the latter did not, as did the former, require the assessors to state that they had assessed the property at the value they would appraise it in payment of a just debt due from a solvent debtor, and that the words “full value” are used in the latter in place of the words "full and true value ” in the former act.

      Held, that as the oath contained all that w'as required by the act of 1885, its failure to strictly comply with the form therein prescribed did not invalidate the tax.
    After the roils had been completed and on August 28, 1885, the assessors took the oath prescribed by the act of 1851. On October 23, 1885, another oath to the same roll was taken by the assessors which conformed literally to the requirements of the act of 1885.

      Held, that even if the first oath was irregular or wholly defective, the assessors had power to and did correct and supply the defect by taking the second one, the provisions of the statutes relating to the time at which the oath should be taken being directory and not requiring literal compliance therewith.
    That a temporary injunction was properly refused upon the ground that it was not shown that irreparable damages would otherwise be sustained, or that the circumstances, showing the necessity for the injunction, existed.
    Appeal from an order denying a motion to continue an injunction and vacating the injunction previously granted.

      William J3: Ilornblower, for the appellant.

      Edmund L. Pitts and John Cuneen, for the respondent.
   Daniels, J.:

The. defendant is the tax collector of the town of Rendall, in the county of Orleans, and an injunction was issued against him to restrain the collection of a tax imposed upon the plaintiff’s property in the year 1885. The collection of the tax was resisted by the plaintiff as unlawful because of tlie alleged omission of the assessors to indorse or attach their oath to the assessment-roll in the form in which that was provided for by chapter 201 of the Laws of 1885. When the roll was completed, instead of making and attaching the oath in the form provided by this act, they made the oath in the form prescribed by section 8 of chapter 176 of the Laws of 1851. That act was passed to amend certain provisions of the Revised Statutes relating to the assessment and collection of taxes; and after the time fixed for the hearing of objections to their assessments by the assessors, and the determination of such objections and the completion of their roll, they were severally required to appear before any officer of their county authorized to administer oaths and severally to make and subscribe the oath prescribed by the statute.

This direction was so far complied with by the assessors that on the 28th of August, 1885, and after the completion of their roll, they appeared before a justice of the peace of the county and took the oath in the form prescribed by the act of 1851; and because of the oath being taken in that form and not under the act of 1885, their assessments, so far as they affect the property of the plaintiff, have been objected to as unlawfully imposed. But it by no means follows, from the fact that the assessors took the oath in the form provided by the act of 1851, that the assessment was on that account either void or irregular, for the oath prescribed by the act of 1885 is the same as that directed to be taken by the act of 1851, except that the assessors are not now required to state that they have assessed the property at the value they would appraise it in payment of a just debt due from a solvent debtor. That requirement has now been omitted, and the assessors are no longer directed to add to the statement that the property has been assessed at its full value, the additional phrase, “and true,” as that was required by the act of 1851. But these changes in the oath required to be attached to the roll are of an unimportant character, for the duty resting upon the assessors is still the same to assess the property at the full value thereof, and to swear in the oath that the assessment has been made at this valuation. In this particular both the act of 1851 and that of 1885 are practically the same. For the assessors, by the former, have been required to swear that “ we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof.” While by the later act they are still required to swear that “ we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full value thereof.” The duty imposed upon the assessors is the same in each of the acts. The assessment required to be made must be according to their estimate or determination the full value of the property, and the oath in each instance has been prescribed to authenticate the performance of that duty. And adding to the oath the further statement that the assessment is also of the “true value,” and made at an amount at which the assessors would appraise the property in payment of a just debt due from a solvent debtor, in no manner either diminished or enlarged the duties or acts of the assessors The latter phraseology which is contained alone in the act of 1851 was used as an equivalent of the full and true value of the property. And that it was so understood by the legislature and intended to be acted upon in that manner by the assessors, is very evident from the language in which the act of 1851 was enacted. For care was taken by it in the first instance to require the assessors to estimate the value at the full and true value of the property. And the further requirement was apparently added to secure the intelligent observance of that obligation, for it was another appeal directty to the conscience of the assessors themselves requiring them to swear, in addition to the fact that their assessment of the property was of the full and true value, that they would also appraise the property at the same value to pay a just debt due from a solvent debtor. That this additional requirement was understood by the legislature as only the equivalent of the other branch of the oath is further evident from the act of 1885 omitting this particular phrase. For the same duty is still enjoined upon the assessors, to estimate the property included in the assessment-roll at the full value thereof. And no more, nor less' than that, was enjoined upon them by the act of 1851. In taking the oath, therefore, prescribed by the act of 1851, the assessors swore to all that was required of them in the act of 1885, and, in addition thereto, that the valuation was the “ true value ” of the property, and that they would appraise it at the same sum in payment of a just debt due from a solvent debtor. They did all that the act .of 18S5 had directed they should do, and then made these additional statements to their oaths, showing still more clearly that they had discharged the duties required to be periormed by them by the act of 1885 in a more particular manner than that act had directed it to be done. By the addition no change whatever was made in the assessments, or the basis upon which the valuations were adopted, but the roll and its verification still remained a compliance with all that the act of 1885 had directed.

. But if any doubt could be entertained upon this subject, it would be removed by the oath taken by the same assessors and indorsed upon the same roll on the 23d of October, 1885. For that oath was taken in the form as it was literally given by the act of 1885. And the fact that the assessors had previously made and indorsed the oath in the form mentioned in the act oi 1851, did not prevent them from making this further oath, and in that manner literally complying with the act of 1885. The roll was still subject to the control of the assessors. It had not passed under the action of the board of supervisors, and was evidently recalled from the hands of the supervisor of the town, if it were in fact in his possession, to add to it the oath last taken by the assessors. And as the act of 1885 does not direct that the oath shall be indorsed and taken at any specified date, the assessors still possessed this authority. What the law has directed is that the oath of the assessors shall be taken after they have completed their roll, without mentioning any period within which that shall be done. And as this roll was still subject to their authority, a reasonable construction of the act of 1885 will sanction what they did in the way of indorsing and making the oath in the form prescribed by this act. Even if the preceding oath had been irregular, or wholly defective, the assessors had the authority to correct it or supply its defects, and comply with the act of 1885, at the time when the last oath was taken by them. Upon this subject the statutes directing the performance of official duty, even where a time for that purpose may have been stated, are not in all cases to be literally carried into effect. For where the act contains no negative provision, and time does not appear to have been deemed essential, and the duty relates to the interests of the public, it may be performed even after the time in which the law may have directed that it shall be done. In other words, the time mentioned in the statute will in these cases be considered to be not mandatory, but directory. (Parish v. Golden, 35 N. Y., 462.) And this rule has been applied to the assessment of taxes. In Rawson v. Van Riper (1 T. & C., 370), the statute required the school trustee to make the assessment for a tax voted for, within thirty days after the votes had been taken. The trustee failed to comply with this direction, but the assessment was afterwards made, and it was sustained by the couit upon the construction that the statute, as to time, was to be held to be directory. A point of the like description arose in Witheril v. Mosher (9 Hun, 412), and the same conclusion,was adopted and acted upon by the court

In no view, therefore, was the plaintiff entitled to an injunction to restrain the collector in the collection of this tax under his warrant. The proceedings of the assessors were entirely regular, so far as they have now been drawn in question; and the order from which the appeal has been taken should be affirmed, with the usual costs and disbursements.

In the case of the same plaintiff against Carroll Phippany, who is the collector of the town of Yates, in the same county, the facts are substantially the same as those in the preceding case. The first oath was taken by the assessors on the 25th of August, 1885, and the second, in the literal form required by the act of 1885, on the twenty-third of October of that year. There was accordingly the same compliance with the law as there was in the other case, and the order likewise in this should .also be affirmed, with the same costs and disbursements.

Davis, P. J.:

While I concur in the views expressed by my brother Daniels, touching the validity and sufficiency of both of the oaths taken by the assessors and annexed to the respective assessment-rolls, and in the opinion that if the first was in any respect illegal or irregular all error was cured by the making of the second oath, which was a literal compliance with the requirement of the act of 1885, yet I think prominence should also be given to the grounds upon which the continuance of the injunctions were denied by the court at Special Term. Those grounds were expressed in the opinion of the court below, as follows :

Tan Brunt, J.

The ordinary rule is that an injunction will not issue to restrain the collection of a tax, unless some irreparable injury will ensue. The plaintiff in this action has failed to show that any irreparable injury will ensue if the defendants are not enjoined. They have already availed themselves of the statute of 1880 to review this assessment, assigning the same errors which form a basis of the action. They have chosen the remedy for the redress of whatever wrongs they have suffered and they should be held to heir eleclion. If they are compelled to pay this tax and it should finally be adjudged under proceedings now pending to be erroneous, ample means of restitution are provided by the statute. There seems to be no valid reasons why these officers should be dragged from the western part of this State, where the defendants live and the plaintiffs carry on their business, to answer these proceedings.

It has long been the established rule of the courts of equity of this State, that no injunction shall issue to restrain the collection of taxes except under circumstances of great necessity to prevent irreparable damage. (Mutual Benefit Life Ins. Co. v. Supervisors of New York, 3 Keyes, 182; Heywood v. City of Buffalo, 14 N. Y., 534; Howell v. City of Buffalo, 2 Abb. Ct. App. Dec., 412; Mutual Benefit Life Ins. Co. v. Supervisors of New York, 20 How. Pr., 416; Pacific Mail Steamship Co. v. The Mayor, 57 id., 515; Bouton v. City of Brooklyn, 15 Barb., 375; Betts v. City of Williamsburgh, 15 id., 255; Guest v. City of Brooklyn, 69 N. Y., 506; Western R. R. Co. v. Nolan, 48 id., 513; Messech v. The Board of Supervisors, 50 Barb., 190.) Public policy requires that the collection of the taxes adjudged by the proper authorities to be necessary for the maintenance of the local and State governments, should not be prevented or interfered with by injunction suits in equity to test the legality of assessments when there is any other possible redress. In this case other legal redress exists and proceedings have been instituted to enforce it. The fact that cars in transitu may be levied upon, does not show a case of irreparable injury, because it is obviously in the power of the railroad company to prevent any such injury by placing money or other property sufficient to pay the tax where it may be levied upon by the collector without subjecting itself to any interference with its trains.

The justice at Special Term was right therefore in placing the decision on the ground that no case was shown for an injunction, and in condemning the obtaining of an injunction in the courts of this city against the collectors of distant towns of the State.

Brady, J., concurred.

In each case order affirmed, with ten dollars costs and disbursements.


author: Brady, J.:

text:
    In the Matter of the Application of the NEW YORK AND HARLEM RAILROAD COMPANY.

      Taking of a; street by a railroad — the owner of a lot fronting on the street at a point beyond the limits of the part taken, is not entitled to-notice or compensation — a party by accepting the award waives his right to appeal from the order appointing the commissioners.

    The city of New York and the owner of a lot fronting on Fourth avenue appealed from an order appointing commissioners to ascertain and appraise the compensation to he made to the mayor, aldermen and commonalty of the city of New York, for the taking of portions of certain streets therein, by a railroad ■company, under chapter 261 of 1884. The act authorized the company to enlarge its passenger depot, by extending it easterly to a line parallel with and eighty feet easterly from the then existing easterly line of Fourth avenue, ■and extending from the northerly line of Forty-second street to the southerly line of Forty-fifth street. The portions of Fourth avenue and the intersecting .streets, which were to be taken, had been opened in proceedings instituted pursuant to the provisions of the city charter, and the costs and expenses of so doing had been assessed upon the property benefited. The lot owned by the ■party appealing, was situated on Fourth avenue, eighty-five feet five inches ■northerly from Fifty-third street. It did not appear that any assessment for ■opening any of the stfeets had been paid by him or that he was the owner of the lot at the time any of such assessments were levied.

      Held, that as the fee of the street was vested in the city, and as the only interest that the lot owner liad in it was that it should be kept open for a street and used only for street purposes, and as his lot did not abut upon any portion of the street to be taken, he was not entitled to any notice of the proceedings or ■to receive any compensation for the closing of the street.

      It seems that if he were an abutting owner along the line of the street to be taken he would be entitled to compensation for any damage which the change of the avenue in front of him might occasion.
    'That as it appeared that the city had received the compensation made in the proceedings taken for the purpose of acquiring the land, it could not appeal 'from the order appointing the commissioners.

      Appeal from an order made at a Special Term appointing commissioners to ascertain and appraise the compensation to be made to the mayor, aldermen and commonalty of the city of New York, under chapter 261 of the Laws of 1884.

      John O. Shaw, for the appellant.

      Henry H. Andersen, for the respondent.
   Brady, J.:

The Fourth avenue was opened from Thirty-eighth street to One Hundred and Twenty-fifth street by various commissions, beginning in 1853, and the property owners fronting upon it were assessed for the extension. The New York and Harlem Railroad Company were incorporated pursuant to chapter 263 of the Laws of 1831, and the several acts amendatory thereof, and by chapter 261 of the Laws of 1884 the company was authorized to enlarge their passenger depot by extending it easterly to a line parallel with the then existing easterly line of the Fourth avenue and eighty feet easterly therefrom, extending from the northerly line of Forty-second street to the southerly line of Forty-fifth street. The land which the company were thus authorized to acquire embraced portions of the blocks of land between Forty-second and Forty-fifth streets and the easterly portion of Fourth avenue between those streets, and portions of Forty-third and Forty-fourth streets. Section 5 of the act of 1884, already mentioned, provided that nothing should be so construed as to allow the company to take any part of the street belonging to the city without compensation, to be ascertained as provided by the first séction of the act, and the commissioners appointed were directed to appraise the value of the strip of land to be acquired for a new street, and to award the value thereof toward the payment for lands taken which then formed a portion of the public streets. Under this act proceedings were had, and a petition was presented in reference to the loeus in quo already described.

Mr. Buckley appeared to oppose, and an affidavit was read on his behalf to the effect that he was the owner of a lot on Fourth avenue eighty-five feet five inches northerly from Fifty-third street,' and that he was informed and believed that the lot owned by him was assessed for the opening of Fourth avenue from Thirty-eighth street to One Hundred and Thirty-fifth street, confirmed in 18S3. But it does not appear that an assessment, if any were levied, was paid by him, or that he was the owner of the lot at the time that assessment was levied.

An affidavit was also read by Arthur Berry on behalf of the corporation, showing that proceedings by commissioners for opening the avenue were confirmed in 1853, and subsequently, and that property owners representing thousands of lots were assessed for the expense thereof, between Thirty-eighth street and One Hundred and Thirty fifth street, and that Forty-third, Forty-fourth and Forty-fifth streets were opened from the East river to the Hudson river in the years 1837 and 1838 ; that property owners representing over two thousand lots fronting on the streets were assessed for the openings; and further, that none of the property owners had been made parties to this proceeding, or had been served with notice of it.

Notwithstanding the opposition thus made commissioners were appointed. From the order expressing that result an appeal was taken by the counsel to the corporation and also by Mr. Buckley. Jt is asserted in the brief of the respondent, however, as affecting its appeal, and it was not gainsaid upon the argument, that after the commissioners were appointed proceedings were had before them, in which the corporation was represented and awards miffie to it, and also that their report was confirmed on notice to the city, and the award made to it paid to and accepted by it.

There can be no doubt that, under the act of 18.13 (cliaji. 86), the fee of the land forming the Fourth avenue, apart of which the company sought to obtain, was, by the ceremony of laying out the street, vested in the city. Mr. Buckley, though an abutting owner on the avenue, was not of that part of it which was desired by the company, and for the acquisition of which the commissioners were appointed. His premises fronting on the avenue were some distance north of the locus in quo. The only interest he had in it, therefore, entitled to any consideration in this proceeding, is suggested by his counsel, namely, that the avenue upon which he is an abutting owner “ should be kept open for a street, and used only for street purposes.” If he were an abutting owner along the line of the part of the street taken, he would no doubt be entitled to compensation for any damage which the change of the avenue in front of him might occasion; and to this extent the authorities cited by his counsel would justify the proposition which he asserts in that regard. But, as already said, he is not an abutting owner of the locus in quo, and it is not understood, therefore, that he was entitled to any notice of this proceeding. The fee being vested in the city, of the part of the street which was appropriated for the enlargement of the company’s depot, the corporation was entitled to notice as such owner, which was properly given in that respect, and, as appears, the city was not only given but received a compensation for that part of the street which was obtained by the company. No other owner, if any there be having the right to do so, appears to object. The proceedings seem to have been in accord with the act of 1884 (supra) therefor.

The city has no standing upon this appeal, however, for the reason that it has received the compensation made in the proceedings taken for the purpose of acquiring the land appropriated, and Mr. Buckley, the other appellant, not being an abutting owner as to the locus in quo, as already stated, has no interest other than in the continued use of the whole street an interest in common with the citizens of the city of New York, and for the interference, or supposed interference, with which he is not entitled to any compensation. The corporation represented his interest in such proceedings.

For these reasons the order should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.


text:
    ULRICE LESSER, Appellant, v. FREDERICK E. PERKINS, Respondent.

      Practice — when counsel should not he allowed to read from a text-hook to the jury.

    In this action, brought to recover a balance alleged to be due upon a contract for the sale of wrought scrap iron, a verdict was rendered sustaining a counterclaim interposed by the defendant which set up a failure of the plaintiff to perform the written contract in which the weight and quality of the iron were guaranteed. In addressing the jury the defendant’s counsel was allowed, against the objection and exception of the plaintiff, to read to the jury extracts from Bliss on Insurance, which stated the doctrine of warranty and the necessity of strictly .complying therewith, as applicable to policies of insurance.

      Reid, that this was error, as the doctrines of warranty governing policies of insurance were not applicable to sales of chattels.
    That although counsel may, perhaps, be allowed in this State to read to the jury when what is read is the law of the case and can by no possibility prejudice the adverse party, yet it is a custom more honored in the breach than in the observance, and should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court.
    Appeal from a judgment in favor of the defendant on his counterclaim, entered on a verdict rendered at the New Tork Circuit, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the action was tried.

      Lewis Sanders, for the appellant

      Flamen B. Candler, for the respondent.
   Brady, J.:

This action was brought to recover a balance alleged to be due upon a contract for the sale of wrought scrap iron, and the defense was a counter-claim, predicated of the failure of the plaintiff to perform the contract, which was in writing, and by which the weight and quality of the iron was guaranteed.

Numerous exceptions were taken during the trial and to refusals to charge, but in the view that is forced upon the court, upon an examination of the case, it will be necessary to consider but one, for the reason that that is fatal to the maintenance of the judgment. The defendant’s counsel, in addressing the jury, read extracts from Bliss on Insurance (§ 36), which was objected to on the ground that it was an entire misapplication of the law of this controversy. The objection was overruled and an exception taken. What was read is as follows:

“ Section 36. Effect of warranty. A warranty must be strictly complied with. It makes no difference whether it is as to a material or a trivial fact. It forms a part of the contract, and the parties have a right to introduce into their contract any provisions (not inconsistent with public policy), which they choose. By introducing them, they stipulate in effect that they are so material that if not strictly complied with the whole contract is rendered void. A misstatement in a warranty is, therefore, fatal to the contract, although arising from the most innocent mistakes or from false information afforded by others, or from mere inadvertence, and as much so as if made with the most willfully fraudulent intent. Lord Mansfield says that in a warranty £ nothing tantamount will do or answer the purpose. It must be strictly performed.’ Mr. Justice Buller says: ‘It is a -matter of indifference whether the thing warranted be or not material, but it must be literally complied with.’ Mr. J ustice Ashhurst says: ‘ The very meaning of a warranty is to preclude all question whether it has been substantially complied with. It must be literally so.’ Lord Eldon says: ‘ If there is a warranty, it is a part of the contract that the matter is such as it is represented to be.’

“ Lord Mansfield says, in one case, ‘ The contract depends on an event taking place. There is no latitude, no equity; the only question is, has that event happened; ’ and in another ‘a warranty in a policy of insurance is a condition or a contingency, and unless that is performed there is no contract. It is perfectly immaterial fur what purpose a warranty is introduced, but being inserted the contract does not exist unless it is literally complied with.’ And Lord St. Leonards says, ‘ it is simply sufficient, and ought to be sufficient to avoid the policy that any one thing- warranted is not true.”

It relates entirely to policies of insurance. ■ There is no case to be found in the books which applies the doctrines of warranty governing policies of insurance to sales of chattels accompanied with a warranty. Warranties in policies of insurance are supposed' to influence the formation of a contract upon the subject of the risk to be taken by the company and the company only, and therefore are regarded as material and of vital importance-to it for its protection and security. No such element enters into the dealings of parties upon a sale of chattels, and the consideration of a guaranty, its effects, results and the rights and obligations of the parties under it ■ are entirely different. This must be so apparent to the legal mind that it is not necessary to elaborate it, and the learned justice presiding in the court below undoubtedly misapprehended the character of the extracts.

The practice of reading to the jury, as done here, has been con.deinned by a number of adjudged cases. (People v. Anderson, 44 Cal. 70; Tuller v. Talbot, 23 Ill., 357; Sprague v. Craig, 51 id., 288; Reich v. Mayor of the City of New York, 17 Weekly Dig., 141; Allaire v. Allaire, 39 N. J. Law Rep, 113; Koelges v. Guardian Life Ins. Co., 57 N. Y., 638.) Perhaps in this State it may be done where the matter read is the law of the case and can by no possibility prejudice the adverse party. (Koelges v. Guardian Life Ins. Co., supra.) Put nevertheless it must be said that it is a custom more honored in the breach than in the observance, and further should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. If a counsel desires to call the attention of the court to rule, doctrine or maxim, and to illustrate by treatise or adjudication, it is proper to do so, but the jury if addressed on the subject by counsel may confuse the instruction and the reading and thus obstruct, if they do not defy, the administration of justice. In this case, as already suggested, it cannot be said that the extracts set out did not prejudice the plaintiff, and for the reasons stated, namely, that the contract between the parties was not governed by the rigorous rules which the extracts presented for consideration. ’For the same reason, namely, that the extracts read were not expressive of the law of the case, the exception taken to the reading with the approbation of the court was one to a declaration in effect that the extracts were expressive of the law of the case and therefore it was effective and fatal.

For these reasons the judgment must be reversed, and a new trial ordered with costs to abide the event.

Daniels, J., concurred.

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


author: Daniels, J.:

text:
    GEORGE B. MEE and HORACE E. BILLINGS, Respondents, v. JAMES McNIDER, Appellant.

      Contract for the sale of goods — when the delivery is complete upon the loading of the goods on the vessel — when testimony is not admissible to aid in construing a contract.

    This action was brought to recover the difference between the price at which the plaintiffs, residing in London, had sold to the defendant, residing in New York, 500 bags of cocoa, and the amount realized upon its sale, after the defendant’s refusal to receive it upon its arrival in New York. The contract, which was made by a broker, read as follows:
    New York, January 3, 1882.
    Sold por Account op Mee, Billings & Co., London.
    To James McNider:
    Five hundred (500) hags prime fermented Bahia cocoa, at 59s. per cwt., C. F & I., by steamer to New York, buyers to forward cable credit or to pay banker’s commission.
    ARTHUR KYTE, Broker.

    It was proved upon the trial that the letters O. F. and I. were the initial letters of the words “ cost, freight and insurance.’’ The defendant refused to receive the cocoa upon the ground that it had been damaged by salt water.

      Held, that the plaintiffs’ contract was performed when cocoa, of the kind and quality and amount specified in the contract, was delivered on hoard of the steamer at London, and that thereafter it was at the risk of the purchaser.
    That as the agreement, when considered in the light of the evidence explaining the meaning of the initial letters, and detailing the circumstances under which it was given, was reasonably free from ambiguity or doubt, the court properly rejected evidence offered by the defendant to show how it would be understood by the witnesses whose testimony was thus rejected.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury directed by the court at the New York Circuit.

      A dóljph L. Sanger, for the appellant.

      Wheeler II. Peokham, for the respondents.
   Daniels, J.:

The verdict was recovered for the difference between the purchase-price and the amount obtained upon the sale of 500 bags of' prime fermented Bahia cocoa. The plaintiffs resided in London, England, and the defendant was a merchant residing and doing business in the city of New York.

The contract for the cocoa was made through the intervention of a broker, and it was in the following words, figures and characters:

New York, January 3, 1882.

Sold for Account of Mee, Billings & Co., London,

To James'MoNider :

Five hundred (500) bags prime fermented Bahia cocoa, at 595. per cwt., C. F. & I., by steamer to New York, buyers to furnish cable credit or to pay banker’s commission.

ARTHUR KYTE, Broker.

It was proved upon the trial that the letters O. F.andL, inserted in the body of the contract, were the initial letters of the words, “ cost, freight and insurance.” That the cocoa was laden on board of a steamer for New York at its place of shipment; and that it was of the quality and description known as “prime fermented Bahia cocoa,” was proven upon the trial. Upon its arrival at the city of New York it was tendered to the purchaser, but he declined to accept or receive it, for the reason that seventy-one bags had been damaged by salt water. The cocoa was afterward sold upon notice to the defendant, and for the difference between the price mentioned in the contract and the price obtained at the sale the verdict in the action was recovered, and the defendant was legally liable for this difference if the plaintiffs’ contract was performed by the delivery of the cocoa upon the steamer, to be carried by her and delivered at the city of New York. For if that is the true construction of the contract, then the property was not at the risk of the plaintiffs after it was laden on board the steamer; but so far as it was injured, it was at the risk of the purchaser, who was the defendant. There is no doubt but that the defendant was entitled to examine and inspect the condition of the cocoa upon its arrival, before he could be held liable to receive it. But the object of that examination and inspection would legally be to determine whether the property was of the quality and amount he was entitled to have under the agreement; and if it were, then he was bound to receive it if the plaintiffs’ agreement was performed by the delivery of that description of cocoa for him on board of the steamer. For where an agreement may be made for the sale of property, which is to be performed by its delivery to a carrier for the purchaser, it will not be at the risk of the seller after such delivery, provided it be of the quality and description and in amount as it is agreed by the contract to ship. (Krudler v. Ellison, 47 N. Y., 36.)

That the plaintiffs’ contract was to be performed by the delivery of the cocoa, answering the description and corresponding in amount to that mentioned in the agreement, is reasonably well supported by the language of the agreement itself. For it has not been expressed as a contract for the sale of the cocoa to the defendant upon its arrival in the city of New York, but it is expressed as an agreement which should be executed or performed by the delivery of the cocoa on board the steamer. It was for so much property sold and not in future to be sold, and the price to be paid for it was made so large as to include not only the cost of the property itself, but the freight and insurance upon it, by steamer to New York. Then it was provided in it that the buyer was to furnish a cable credit for it or to pay the banker’s commission in case that was not done, and this obligation was not made dependent upon the delivery of the cocoa in New York, but followed the performance of the plaintiffs’ obligation to deliver it on board the steamer. No credit was given for the purchase-price as the law construes the agreement. The performance of the act of delivery on board the steamer and the obligation to pay on the part of the defendant were simultaneous. In other words one was immediately to follow the other. The object of insurance was to protect the defendant, as the plaintiffs by the agreement had no further concern for the property after its safe delivery and insurance on board the steamer.

The defendant offered evidence upon the trial concerning the agreement and what might be its understanding by the witnesses, whose evidence was rejected. But there was no error in excluding this evidence, for the agreement itself, with the explanation given of tlie signification of the initial letters contained in it, and the circumstances under which it was made, appears to be reasonably free from ambiguity or doubt as to what was intended by it at the timé when it was made And where that is the nature of a written instrument, oral evidence as to its meaning or effect, is not entitled to be received.

It was quite clear from the agreement what the parties designed should be accomplished by it, and that was that this cocoa, should be placed on board tlie steamer to be carried to New York for the defendant and there delivered to him, and that ic should be at his risk while it was in the course of its transportation or, in other words, that the responsibility of the plaintiffs for its condition should not be extended beyond the time after it was properly shipped to be conveyed by the carrier to the purchaser. The defendant was legally liable to perform that part of the agreement obligating himself to pay the purchase-price of the cocoa, and if the injury to it was caused by the carelessness of the carrier, the purchaser was entitled to look to him for redress or obtain indemnity through the insurance effected upon it at the time when the shipment was made.

The judgment appears to have been right and it should be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.