author: Lewis, J. Childs, J.,

text:
    John F. Gates, Assignee, App’lt, v. The Citizens’ Bank of Perry, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Assignment for creditors—Attachment.
    In an action by an assignee for creditors for wrongful attachment, the defense set up was that the assignment was fraudulent in law and fact. The assignment preferred certain notes which were claimed to be the individual indebtedness of one of the assignors. On motion, in the actions brought by defendant, to vacate the attachment the general term held that the assignment was void by reason of the preference, but this was reversed by the court of appeals. Prior to the decision of the latter court this action was tried, and the referee dismissed the complaint. In addition to the question of such preference, the evidence showed that the-agent who managed the business transferred certain private accounts of the partners to firm account a few days before the assignment, but without the knowledge of one of the assignors; that neither knew of the-financial condition of the business; that both drew small sums of money, and that the agent overdrew his account and transferred some real estate to his wife. Held, that the referee undoubtedly followed the decision of the general term, and this having been subsequently reversed, defendant’s main defense is eliminated, and the judgment should be reversed and a new trial granted.
    (Childs, J., dissents.)
    Appeal from a judgment entered upon the report of a referee, dismissing the plaintiff’s complaint, and from an order of the Wyoming special term, granting the defendant an extra allowance of costs.
    This action was commenced May 5, 1890, to recover $15,000-damages alleged to have been sustained by the plaintiff on account of the levy by the sheriff of Wyoming county of three warrants of attachment issued against the property of Helen A. and L. Sophia Williams, in three actions in the supreme court, in which •they were the defendants, and the defendant in this action was the plaintiff, which warrants were levied by the said sheriff, after being indemnified by the defendant, on a stock of merchandise-claimed by the plaintiff herein as such assignee. Issue was joined by the service of the defendant’s answer, July 23, 1890, alleging the issuance of such attachments, a recovery of judgments in said actions, and the issuance of executions thereon, and that the said assignment is fraudulent in fact and fraudulent in law, and the issuing of attachments, seizing of goods by virtue thereof. The issues were thereupon duly referred to a referee, to hear, try and determine. The action was brought to trial, and the referee-decided the case April 23, 1891, dismissing the plaintiff’s complaint, with costs against the plaintiff. An order was made at a special term of this court awarding to the defendant and against the plaintiffs an additional allowance of $800 costs.
    B. Frank Dake, for app’lt; F. C. Peck and Eugene M. Bartlett, for resp’t.
   Lewis, J.

—Helen A. and L. Sophia Williams, in September, 1886, formed a copartnership under the firm name of Williams & Co., to conduct the dry goods, cloak and carpet business in the village of Perry, N. Y. They continued in business as such co-partners down to the 81st day of January, 1890, when the firm was dissolved by the making of an assignment to the plaintiff, of their property, for the benefit of their creditors. Their assignment provided, first, for the payment of the expenses of executing the assignment, the salaries of employees, and them directed the assignee to pay out of the assigned, property, next after the above mentioned .costs, expenses and wages, two promissory notes, held and owned by E. M. Clark, of Perry, N. Y, amounting in the aggregate to the sum of $600. The assignee took possession of the assigned property and entered upon the discharge of his duties as such assignee. The defendant was, at the date of the assignment, a creditor of the assignors in the amount of six or seven thousand dollars.

Three actions were commenced by the defendant against the assignors to recover such claims, and an attachment in each action was procured, and the assigned property attached. The affidavits on which these attachments were granted stated the facts out of which the indebtedness to Mr. Clark, represented by the notes, arose, and claimed that it was the individual indebtedness of Helen A. Williams. A motion was made by the defendants,in said action to set aside the attachment on the ground that the facts stated in the affidavits upon which the attachments were issued did not establish-that the Clark claim was the individual debt of Helen A. Williams. The motion was denied and upon an appeal the ordels were affirmed by the general term of this department. An appeal was thereupon taken to the court of appeals, and pending that appeal this action was tried and decided by the referee. The referee found as facts in his report, the indebtedness of the assignors to the defendant, the recovery of the judgments by the defendant against the assignors, the issuing and levy of the attachments, the assignment to the plaintiff, who took possession of the assigned property, and that the only right or interest he had in the property was by virtue of the assignment, and found that the assignment was made with intent to hinder, delay and defraud the defendant and others, creditors of the assignors, and, as a conclu-' s-ion of law, that the assignment was void, and that the plaintiff’s complaint should be dismissed.

At the time of the making of the referee’s report, it was held as the law of this case, as decided by the general term of this department, that the facts stated in the affidavits mentioned proved that the preference of ■ the Clark claim made the assignment void. 'The referee undoubtedly followed that decision in making his report.' Since then the court of appeals has handed down a decisión in the appeal from the general term, deciding that the facts .stated in the affidavits upon which the attachments were issued ■did not warrant the issuing of the attachments, but that the Clark indebtedness was one which the assignors could legally prefer. The defendant, however, contends that, notwithstanding the failure of its defense under the attachment, there was other evidence sufficient to sustain the report.

There was evidence tending to show that during the four or five years the copartnership existed the copartners resided in the village of Perry, and were accustomed to make purchases for supplies for themselves and their families in the village, which were charged to them individually, and that the merchants of whom they made these purchases made purchases at the store of the firm, which were charged to them upon the firm books, and that these accounts were annually adjusted, by having the parties to whom these accounts were owing credited the amount thereof on the books of the firm, and charging, upon the books of the firm, the partners respectively with the amounts of the accounts so settled. The accounts for the year immediately preceding the assignment were thus adjusted during the few days immediately prior to and after the making of the assignment. The record shows that neither of the copartners, with unimportant exceptions in the case of Helen A. Williams, paid any personal attention to the business. It was mainly managed by Fred. 0. Williams, a son, and Clarence M. Smith, a son-in-law, of Helen A. Williams. These transfers of accounts in 1890 were made by these agents, without the knowledge or consent, so far as the record shows, of L. Sophia Williams. There is evidence tending to show that Helen A. Williams knew that this .settlement of accounts was being made.

There is no evidence that at the time she was so informed, that either member of the firm had any knowledge or information as to the firm’s financial condition. There was also .evidence tending to show that the assignors withdrew from the assets of the firm, a short time prior to making the assignment, small sums of money and goods; not, however, of sufficient amount or value to justify an inference of a fraudulent intent. The evidence tends to show, that at the time of the settlement of these accounts, about the time of the making of the assignment, Fred C. Williams and Clarence M. Smith, the agents, knew that the firm was financially embarrassed. It is contended by the defendant that the assignors are chargeable with the guilty intent of their agent, Fred C. Williams, in making these settlements. The referee has failed to make any findings as to this branch of the evidence. There are authorities holding that, under some circumstances, the guilty intent of an agent may be imputed to his principal. The real question here is the intent with which the assignors made the assignment, and assuming that their agents were guilty of fraud in the management of the affairs of the firm, it does not necessarily follow that the assignors are to be chargeable with such fraudulent intentions.

There was evidence that Fred C. Williams had overdrawn his account with the firm to a considerable amount; and there was also evidence admitted, under the objection of the plaintiff, that, a short time prior to the assignment he transferred to his wife some real estate in the village of Perry. This evidence, it is claimed, was competent as tending to show the fraudulent intent-upon the part of the agent. Had such a transfer been made by one or both of the co-partners just prior to the assignment, it would have been important evidence; but it is quite doubtful whether the evidence of this transfer by the agent was competent.

The plaintiff was in possession of the attached goods under an assignment which was valid as between himself and the assignors. The defendant, under attachments which were, by the decision of the court of appeals, declared to be invalid, attached and took the goods into their possession. This action was commenced before the defendant obtained judgments in the attachment actions. It is the contention of the plaintiff that the attachments having been declared invalid, that the entire defense fails.

Without further reviewing or discussing the main points and authorities referred to in the very voluminous briefs of the counsel, in view of the fact that the defendant’s main defense is eliminated from the case by the decision of the court of appeals, the judgment, we think, should be set aside, and a new trial had before a referee who will not be embarrassed -with the question of the preference of the Clark claim.

Judgment reversed, new trial granted, with costs to abide the event.

Dwight, P. J., concurs.

Childs, J.,

(dissenting.)—The answer of the defendant contains numerous allegations of fraud on the part of the plaintiff’s assignors, and upon the trial testimony was given by the defendant in' support of such allegations, from which testimony the referee has found as a fact that the assignment under which the plaintiff claims “was made by said Helen A. Williams and L. Sophia Williams with intent to hinder, delay and defraud the defendant and others, creditors of said Helen A. and L. Sophia Williams.”'

It is claimed by the appellant, in substance, that such finding was influenced wholly by the decision of this court adjudging that said assignment was fraudulent in law by reason of the preference of the Clark notes to be paid from the copartnership assets. If this contention was supported by an examination of the case, it would of course lead to a new trial of the action, the court of appeals having reversed that determinaion.

My examination has led to a different conclusion. As before indicated, the defendant gave testimony in support of numerous-allegations in the answer attacking the bona fides of the assignment, one of such allegations' having reference to the Clark notes. Upon the whole of the evidence the referee has made the finding; above quoted. That this is so, and that the referee did not regard as controlling the testimony or decision in regard to the Clark: notes, is made clear by the fact that the referee declined to hold in response to the plaintiff’s request, “ that in the making and execution of said general assignment neither the said Helen A. Williams nor L. Sophia Williams had any intent to hinder, delay or defraud their creditors or the creditors of the firm of Williams & Co. any further than the presumption of fraudulent intent on their part in the making of said general assignment may arise from the fact that the said general assignment contains a direction for the payment of the said promissory notes to the said Ephraim M. Clark out of the copartnership assets of the firm of Williams & Co.”

Under these circumstances, the reversal of the decision in regard to the Clark notes can have no other or greater effect than to strike from the case all the testimony in relation thereto as tending to support any allegation of fraud on the part of the plaintiff’s assignors, and to leave the defense of fraud resting upon the other testimony in the case, which, if sufficient to support the finding of the referee, must lead to an affirmance of the judgment. An examination of the case will show that the finding of the referee is supported by the evidence, excluding all reference to the Clark notes, and it appearing that the referee entertained this view of the case and made his findings accordingly, I think the judgment entered on his report should be affirmed.

Judgment reversed and new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Enos G. Laney, Individually and as Adm’r, Resp’t, v. Mary K. Laney, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Payment—Y oltjntaby.
    Where an administrator, without authority, collects rents of premises which belonged to his intestate, and with full knowledge of the facts pays them over to one net entitled to receive them, without any agreement for their repayment, such payment will be considered as voluntarily made, and cannot be recovered.
    Appeal by the defendant from a judgment entered in Monroe county upon the report of a referee, on the 26th day of October, 1891.
    Action to procure an adjudication that a decree directing the plaintiff to pay certain moneys to defendant, made on a final accounting, h.as been paid, and that defendant account for moneys advanced to her by plaintiff as administrator.
    The following is the opinion of the referee:
    E. M. Morse, Referee.—On the facts of this case the plaintiff is equitably entitled to relief, but not to the extent he claims. He has had two accountings, as administrator, in the surrogate’s court of Monroe county and these adjudications apparently cover his entire liabilities to the parties interested in the estate of James Laney. He was charged in the first decree with the amount which, in the opinion of the court, should then be distributed; and this is the basis of the defendant’s judgment for $5,881.30. The remainder of the estate in his hands was left in the business then being conducted by plaintiff and Barker, under the peculiar co-partnership agreement executed before James .Laney’s death; and the second decree charges the plaintiff with all the personalty in his hands, not embraced in the first decree, including interest, and profits of the business, as well as the capital invested when the co partnership was formed. This decree awards the defendant $6,878.49 as her distributive share, and cancels and discharges the bonds given by the plaintiff, administrator, with the Fidelity & Casualty Company of New York. These accountings were in all respects regular, all parties interested were represen ted,, and the defendant widow, and the next of kin, filed objections, and the decisions of the court were made after long and evidently bitter contests. The decrees following the accountings, are the adjudications of a competent tribunal, and concerning matters within its jurisdiction, and are conclusive as to the amounts with which the plaintiff was chargeable and with which he should be credited as administrator.
    Neither of these decrees has been paid, in the ordinary signification of payment of a decree. The judgment debtor has not paid, or tendered, to the judgment creditor, or her attorneys, the sums due, stating them to be in payment, and asking a satisfaction and discharge. But since James Laney died, the defendant in this action has received from the plaintiff a large amount of money, and considerable merchandise, none of which came from the estate in such manner that plaintiff has been credited with it as administrator. He is liable to pay both decrees, unless he has already advanced the amounts due on both, and under such circumstances as require this court to adjudge.that defendant has been, in equity, fully paid, and that plaintiff’s payments should beset off against the decrees, and the decrees discharged and satisfied of record. But if the plaintiff has already paid the defendant,, or in any way advanced her moneys which he did not otherwise owe her, then he certainly ought not to be compelled to pay a second time.
    The distributive shares of thé defendant widow, and of the next of kin, as adjudicated by both decrees, are the same as though plaintiff had let defendant have no money or merchandise. The questions in this controversy therefore arise out of facts not involved in the plaintiff’s administration of the estate. Those facts are simple. The defendant has received from the plaintiff, by way of checks, $28,650.00, and the interest of this sum is $5,-846.27. She has received merchandise of the'value of $1,405.90 on which no interest is chargeable. These sums aggregate $30,-902.17, and were advanced at different times from April 10, 1885, to January 28, 1890. During that period plaintiff collected rents of the real estate owned by James Laney at his decease, amounting to $13,122.50. The interest on those rents is $3,120.77. The checks given defendant represented rents as far as the rents would go, and the rents and interest, amounting to $16,243.27, deducted from the $30,902.17, leave the sum of $14,658.90. From this deduct the amount now due on the first decree, $7,112.46, and we have $7,546.44, due from the defendant to the plaintiff, at the date of this report. In other words, the defendant has received that sum from the plaintiff in excess of what plaintiff has received from all sources, except what he has been charged with on his accountings in surrogate’s court. I can discover no reason why he should not have judgment for this sum, and satisfaction of the defendant’s judgment based on the decree of $5,881.30 and on which is now due said sum of $7,112.46. The further remedies of the parties, each having a judgment against the other, is a matter which is not in issue here, the • first decree only being within the pleadings. Against that should be set off enough of the moneys advanced by plaintiff over and above rents, to extinguish the plaintiff’s liability. That decree, like all other final decrees of a surrogate’s court against administrators, adjudging moneys in their hands due and payable to parties entitled, runs against him personally and de bonis propriis, Power v. Speclcman, 126 N. Y., 354; 37'St. Rep., 474, and all payments made, or moneys advanced, by him as an individual, are proper matter of set-off against the decree.
    The plaintiff, in his complaint, alleges a much smaller amount advanced than was proved on the trial, and demands judgment for $4,567.77 with such interest as might be properly allowed.
    The complaint contains no allegation concerning rents, and ■ on the evidence a judgment is asked for the difference between the total advances and interest thereon, and the amount of the decree with interest on the same. I do not think the plaintiff is entitled to such judgment. He paid the defendant $13,122.50 from the rents of the real estate belonging to James Laney, at his decease. These rents he had received from his partner, Barker, and from the firm of Laney & Go. He also owed $1,560.00 for rent of premises of the decedent occupied by himself, but it cannot be said he had collected these rents, nor that he paid them to defendant. Of course he had no authority, from any source, to collect any rents whatever, unless they had become due before James Laney died. Nevertheless he collected them; and after such collection he was under no obligation to pay them to defendant; but he did pay them to her, and the amount of them must be eliminated from his advances. The only person entitled to" these rents was the general guardian of the infant heirs, who owned" the property. The defendant as dowress had no right to any part of them, for her dower had not been admeasured.
    The fact that plaintiff had no right to the rents is immaterial. He received them, and the heirs may have the power to compel the lessees to pay a second time. But that does not affect the rights of the parties of this action. The heirs cannot compel plaintiff to pay them; and if they could it would be of no consequence. The lessees have paid a person who was destitute of authority, and he has subsequently paid to another person not entitled. No one’s legal rights in these rents have been affected ; but the sum collected illegally, and paid defendant illegally, can neither be recovered back nor set off in this action. Plaintiff swears the rents were charged to him as administrator, but that does not aid him. As administrator he had no right to the rents, unless they had accrued before James Laney died. He paid them to defendant, and she received them; neither party can now repudiate the transaction, nor can either base any legal proceeding on it. The plaintiff has not loaned these rents to defendant, nor advanced them to her; he paid them, he so swears, and both so understood it. He supposed they belonged to the estate, and that he could legally pay them to the defendant; she labored under the same delusion.
    Had the evidence shown, as one of the facts, that the tenants paid their rents to the plaintiff, and as another fact and an independent one, that plaintiff let defendant have money from time to time, as she requested, and with no connection proved between the two facts, then the plaintiff would be entitled to allowance for all the moneys so advanced subject to no deduction on account of illegally received rents. But, to the extent of the rents, all he did was to pay to a person, not entitled,.moneys he had no right to receive. The difference between the aggregate of the checks delivered to the defendant, with interest, and the amount he received for rents, with interest, is what must be considered in this action, and the only way of stating that difference properly, under the peculiar manner of transacting business adopted by the parties, is to charge the defendant with the aggregate of the sums received from the plaintiff, with the interest on each sum, from the date of its receipt, and charge the plaintiff with the rents and interest on the several items from date of receipt. That defendant should pay interest on all sums received by way of checks requires no argument; and it is equally certain that plaintiff must be adjudged to do the same on the rents from the time he received them. Had he turned them over at the dates of their payment to him, then there would have been no interest on either side; but he did nothing of the sort He paid defendant such sums, and at such times, as she requested, and kept the rents without keeping a separate rent account; and the only equitable way of doing justice between the parties is to charge interest on receipts and payments. It must be assumed as a matter of law that the rents were in plaintiff’s hands as a fund from which he made payments to defendant, so far as the fund would go; then he used his own money. He had the use of the rents from the times they were paid, and should allow for that use; and defendant should pay interest on all receipts by check, or where otherwise liquidated.
    The advances to the defendant as alleged in the complaint were not made on account of her distributive share in James Laney’s estate. The surrogate’s court has so adjudged, necessarily, by granting a decree which gave the widow and next of kin their legal shares in the moneys then in plaintiff’s hands for distribution diminished by no payments to any of them. • The moneys for which the plaintiff claimed credit on the first accounting were a part of those proved in this action, and the surrogate’s court expressly adjudged that they be stricken out of the plaintiff’s account, because they related to transactions not involved in that proceeding and of which the court had no jurisdiction. In the second accounting the plaintiff did not include advances in paymente made since the first accounting and of the same character as these stricken out in the first one.
    The surrogate’s court has not decided whether these advances be allowed or disallowed; it has simply declined to consider the question, and this court has at both special terms and general terms approved the dectsion of the surrogate’s court. The doctrine that any relief which the surrogate’s court ought to have granted on plaintiff’s accounting cannot afterward be obtained by him by action in another court needs no authority in its support. Hyland v. Baxter, and kindred cases, contain, of course, the settled law of the state; but they only decide that the decrees of surrogate’s courts are conclusive on such matters as are- within their jurisdiction. Whether that court decided correctly in regard to these advances is a question with which I have no concern. The decision must be considered final, and this controversy must be settled on that basis.
    These payments and advances were, not made defendant as administrator of James Laney’s estate, but were made to her individually; she so understood, for she charged herself with only $175 on her accounting in 1887, after a large portion of the money and merchandise had been received by her. One administrator does not pay to another. He can only discharge his duty and relieve himself from responsibility by paying creditors, widow or next of bin. The fact that plaintiff paid these moneys and delivered this merchandise to the defendant for the support and maintenance of herself and sons does not contribute any defense here. The defendant might do what she chose with what she received, but she continued liable to account for it. It was not paid to the next of kin nor to their guardian. The plaintiff had no right to pay the infante and did not pay them, and the defendant had no authority to receive money from the other administrator in their behalf. She might under the two orders of the surrogate’s court have properly received moneys from the general guardian during two years, but no claim is made that she did or did not.
    Were it not for the fact that plaintiff has accounted for the $3,000 'represented by the checks drawn in favor of defendant, as administrator, and that he has been adjudged to pay that sum, with the other moneys of the estate, to the defendant and her children, I should be disposed to hold that so much of what plaintiff claims had been paid by the firm, under the strange provisions of the co-partnership agreement. But after an adjudication by a competent court, in a proceeding to which defendant was a party, and in which she and her sons have once received the benefit of the moneys represented by these checks, there is no equity in adjudging that plaintiff must lose the benefit of his advancements of that amount to defendant.
    The sum paid for feed, repairs of wagons, veterinary bills, etc., were all at defendant’s request, and for debts contracted for her since James Laney’s decease, and for which she was personally liable ; she may, perhapr, be properly credited with them on her accounting as administrator, but the plaintiff could not have had credit for them. The personal property affected was not in his hands, and he, had no right to feed horses, mend wagons, or do any other act relating to them. As to taxes and repairs on real estate, neither administrator, of course, had any authority, but as to all these the defendant substantially borrowed-of plaintiff the moneys used in these various matters, and she must account for them.
    On the whole case, there seems to be no way of doing justice to the parties, except on the basis which I have adopted; and, in view of the extraordinary facts developed by the evidence, an absolutely just judgment cannot, probably, be awarded. After a careful and diligent examination of the facts and the law, I must hold that plaintiff should have the relief he asks so far as set-off and injunction are concerned, but that he should be allowed a smaller money judgment against the defendant than he demands since the trial though larger than his complaint calls for.

      Q. Van Voorhis, for app’lt; Fred. W. Smith, for resp’t.
   Lewis, J.

—We agree with the conclusions of the learned referee, with the exception that we think he should have deducted from the advances made to the defendant by the plaintiff the items of the rent of the Elm street house occupied by the plaintiff.

The referee correctly held that the plaintiff was not entitled to recover of the defendant the payments made to her which were represented by the rents of the real estate owned by the estate of James Laney, deceased, which had been occupied by the firm of Laney & Co., and by Mr. Barker.

These rents were not actually paid to the plaintiff by the firm or by Mr. Barker, but as they came due, by a system of bookkeeping adopted by the plaintiff, he in effect charged himself with the rents of the several pieces of real estate belonging to the estate and occupied by the firm, by Mr. Barker and by himself, respectively.

He did not pay his rent as it came due in any way except by charging himself with it on the books of the firm of Laney & Co., of which firm the plaintiff and Barker were members, and the estate of James Laney was interested.

There was no distinction made, so far as the entries in the books were concerned, between the rentals owing by the firm, by Mr. Barker and by the plaintiff. He paid to the defendant money, from time to time, as she called for it, and charged her with it.

The referee found, upon evidence sustaining his finding, that these advances were made by the plaintiff under circumstances entitling him to recover them of the defendant, with the exception of so much of said advances as equals the aggregate of the rentals of the real estate aforesaid, occupied by the firm of Laney & Co. and Mr. Barker, amounting to $13,122.50.

He did not deduct from the advances the amount of the rent of the house the plaintiff had occupied, being the sum of $1,560 and interest.

The referee very properly held that as the plaintiff had no authority to collect the rents, but having charged himself with them and assumed to pay them to the defendant, knowing all the facts of the case, the payments must be considered as having been made voluntarily and that he could not recover them of the defendant.

The facts upon which the referee based this finding came from the plaintiff as a witness.

He testified that he charged himself with the rents as they came due and paid them to the defendant.

He testified that he charged himself with the rent of the house belonging to the estate, which he occupied, upon the firm books, in the same manner as he charged the other rents mentioned, received from the other real estate, and he paid it to the defendant just as he paid the other rents as rents, understanding, so he testified, that he had the right to collect the rents and pay them to Mrs. Laney.

Having paid the rents to the defendant voluntarily in every instance, and there being no.express or implied agreement for their repayment, we find no reason for permitting the plaintiff to recover the payments made, represented by the rent of the house occupied by himself.

James Laney died on the 1st day of March, 1885, and the referee finds that the rent of the Elm street house, occupied by plaintiff, amounted, after the death of Laney, and before the 1st of February, 1887, to $1,170, and that subsequent to that date it was $390, making an aggregate of $1,560.

The account of rents produced by the plaintiff shows that the part of the rents which go to make up the $1,170 fell due before the death of Mr. Laney. The error is not important, as the plaintiff testified that the rent of the Elm street house, occupied by him, appeared in that account as rent received after Mr. Laney’s death, and was paid by him to the defendant as so much rent received.

The principle adopted by the referee in the computation of interest on the accounts requires that there should be added to this sum of $1,560 four years interest amounting to $374.40, making in all $1,934.40, which should be deducted from the $7,546.44 found by the referee as the sum for which the plaintiff was entitled to judgment against the defendant.

The finding of the referee that the payments to the defendant, by checks, amounted to $23,650, is correct, as the addition of the items of the amount will show.

He was in error when he found, at the request of the defendant’s counsel, that they aggregated but $23,050.

The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to deduct from the amount of his recovery, the sum of $1,934.40, but in case the plaintiff give the stipulation suggested, the judgment should be affirmed for the sum of $5,612.04 damages, with interest thereon from the 1st day of August, 1891, and for that amount affirmed, without costs of the appeal to either party.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    Charles F. Mattlage, App’lt, v. The New York Elevated Railroad Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    Railroad—Elevated—Appeal.
    From a judgment in an action against an elevated road both parties appealed, plaintiff claiming that damages for loss of rental value were insufficient, and defendant that certain items were improperly allowed. The defendants’ appeal was first heard, and the judgment was modified. Held, that as that decision substantially disposed of all the questions raised on plaintiff’s appeal, the judgment should be affirmed on that appeal.
    Appeal from a judgment entered on the verdict of a jury rendered at trial term.

      Charles D. Ridgway, for app’lt; Julien T. Davies and Brainard Tolles, for resp’ts.
   Per Curiam.

—The plaintiff is now, and for many years has been the owner of the premises on the southwest corner of Warren and Greenwich streets in this city. The lot, on which is erected a five-story brick building, is twenty-six feet six inches on Greenwich, and eighty feet deep on Warren street. The defendants had erected on. Warren street, opposite the top of the second story windows of plaintiff’s building, a station which had extended down that street in front of plaintiff’s premises sixty feet, and which, with its projecting roofs, cover the whole of Warren street from curb to curb. To compel the removal of this structure, and incidentally to recover damages for its erection and maintenance, the plaintiff commenced an action in this court, in equity, which resulted in a judgment in favor of the plaintiff. When that judgment was entered, the defendants obtained an injunction against its enforcement until the general term had affirmed it, and then a further stay pending an appeal to the court of appeals. When that appeal was about being reached, the defendants withdrew it and paid the judgment. Thereupon the present action was brought to recover the damages sustained by the plaintiff after the judgment, and before the station at Warren street was removed.

The jury found a verdict in favor of the plaintiff on the following items of plaintiff's claim, to wit:

Fur loss of rental value.......................... $1,000 00

For gas bill.................................... 50 00

For exemplary damages........................ 06

For legal expenses.............................. 450 00

Making an aggregate of $1,500 06

For which judgment was entered, and from which both parties take an appeal; the plaintiff’s appeal being on the ground that the damage for loss of rental value was insufficient, and the defendants’ upon the ground that the gas bill, legal expenses and exemplary damages were improperly allowed.

The appeals were separately argued, the plaintiff’s having been argued at the May general term, 1891, and the defendants’ at the November term. This court handed down a decision in the latter case in February last modifying the judgment. 44 St. Bep., 289. Owing to the death of Judge Allen who sat with the other judges the decision was overlooked, but the decision on defendants' appeal has substantially disposed of all the questions raised upon this appeal. We have, however, carefully examined the record and do not think that any sufficient reason has been shown for disturbing the verdict of the jury in regard to the loss to the rental value of the premises, and the judgment appealed from is, therefore, affirmed as to this, with one bill of costs to the defendants, respondents on that appeal

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Ann McManus, Resp’t, v. William H. Woolverton, Pres’t of the New York Transfer Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    1. Negligence—Street accidents—Fast driving.
    The evidence tended to show that plaintiff attempted to cross the street at a distance from the crosswalk with a shawl over her head, but so that she could see; that before crossing she looked both ways, and again when half way across, but saw nothing to excite apprehension of danger, and when a few steps further she was knocked down by one of defendant’s wagons which was being driven at a running rate of speed. Held, that the questions of negligence were properly for the jury, and that a motion to dismiss was properly denied.
    2. Same—Fog.
    _ The fact that a prevailing fog obscured the street and travellers from view does not lessen the effect of evidence of the driver’s carelessness, as such circumstance calls for the exercise of greater vigilance on the part of both drivers and foot passengers.
    3. Same—Charge.
    A charge that pedestrians and owners of vehicles have equal rights in the street; that “ you have as much right in the center of the street as a coach driven by a millionaire and drawn by four horses," and that each is to exercise ordinary care, is proper.
    4. Same.
    It is not improper for the court to call attention to any seeming conflict in a witness’ statements.
    5. Same—Reading from opinions.
    Nor is it error for the court in its charge to read the law on the subject from an opinion of the court of appeals.
    Appeal from a judgment for plaintiff entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial.
    Action to recover damages for injuries, which plaintiff claims to have sustained, while she was attempting to cross the public highway, from a collision with defendant’s "express wagon alleged to have been negligently and carelessly managed and driven by defendant’s servant.

      Henry Schmitt, for resp’t; John L. Hill, for app’lt.
   Bischoff, J.

—The complaint alleged specifically, and the answer did not deny, that the horses and wagon with which plaintiff collided were owned by defendant’s association, and that they were at the time of the collision in the care and under the control of one of its servants. These facts must therefore be taken to have been admitted upon the trial, Code Civ. Pro., § 522, and the inquiry was confined to the negligence of the driver of the wagon, the contributory negligence of the plaintiff and the nature and extent of the latter’s injuries.

Pedestrians and drivers of vehicles have equal rights to the use of a city street, and the duty to exercise such a degree of care and prudence as to avoid injury to themselves or to others, which the circumstances of the case demand, is reciprocal. Barker v. Savage, 45 N. Y., 191; Belton v. Baxter et al., 54 id., 245; Brooks v. Schwerin, id., 343. Nor is it negligence per se for a person on foot to cross a city street at any hour of the day or night elsewhere than at the crosswalks, Brusso v. The City of Buffalo, 90 N. Y., 679, or to omit looking both ways for approaching danger, as in the case of a person about to cross a railroad track. Moebus v. Herrmann, 108 N. Y., 349; 13 St. Rep., 648. If, therefore, the driver of a vehicle, with the exercise of ordinary caution, could have seen a person crossing at a point where' there is no crosswalk, and fails to do so, or if, seeing him, he could have avoided the collision with the exercise of ordinary care, and does not do so, he will be adjudged guilty of negligence. Moebus v. Herrmann, 108 N. Y., 349; 13 St. Rep., 648; Murphy v. Orr, 96 N. Y., 14.

It appeared from the testimony of the plaintiff that on the 28th day of February, 1890, between ten and eleven o’clock in the morning, she attempted to cross Hudson street, at a point distant from the cross-walk, intending to visit a store on the westerly side of the street opposite her own residence, which was about seventy-two feet in a northwesterly direction ; that it was raining at the time, in consequence of which plaintiff had covered her head with a shawl, leaving, however, her eyes exposed; that before she ventured to cross she looked up and down the street and perceiving nothing to excite apprehension of danger, proceeded at an ordinary gait until she got as far as the railroad track running along the centre of Hudson street, where she says she again stopped to look, and feeling reassured from the absence of - anything inconsistent with her further safety she continued on her way until she reached a point about four or five feet west of the westerly track, when she heard a shout, turned1 about, and was instantly knocked down, thus sustaining the injuries of which she has complained. ■

Tillie Stumpf, a witness for the plaintiff, testified that at the time of the collision she was standing in front of her own residence, which was but a few doors above that of the plaintiff and the point where the latter attempted to cross; that she observed the plaintiff crossing the street; that she saw her look up and down the street and proceed as far as the railroad track, where she stopped to allow a car approaching in a northerly direction to pass, and then continued back of the car to the westerly side of the tracks, where the plaintiff was run into by an express wagon and horses attached thereto; that when plaintiff had reached the tracks the witness observed the express wagon about' the distance of half a block (or upwards of one hundred feet, as appears by the diagram submitted), south of the point plaintiff was crossing, being driven along the westerly side of Hudson street in a northerly direction at a running rate of speed, and, as the witness also described it, “like a fire engine going to a fire; ” that,the driver of the wagon was seated on the top thereof, and that there was nothing to obstruct his view of the plaintiff.

Eosenberg, another witness for plaintiff, testified that he was on the street at the time when his attention was attracted towards the plaintiff by a scream; that he instantly turned about and saw the plaintiff lying prostrate on the street near the gutter, while the wagon was being driven awaj from the scene of the accident and in a northerly direction with unusual rapidity.

Upon the foregoing facts, it was pre-eminently a question for the jury whether plaintiff had taken all the precautions which a prudent person would have employed under like circumstances, and whether or not the accident would have been avoided, but for the immoderate rate of speed at which the wagon was driven through a city thoroughfare, or the failure on the part of the driver to exercise due care to avoid injury to travellers thereon, and the motion to dismiss the complaint was properly denied.

Hor was the evidence of the carelessness of the driver impaired by the evidence subsequently introduced for the defense. It then appeared that at the time of the accident a prevailing fog partly obscured the street and travellers thereon from view, a circumstance which, instead of justifying a relaxation of caution, only called for the exertion of greater vigilance on the part of both plaintiff and the offending driver to avoid the risk of injury, and it thus still remained a question of fact for the jury whether ordinary prudence should have prompted plaintiff to still further precaution, or due regard for the life and limb of those entitled to an equal use of the street required the driver of the express wagon to abstain from even the rate of speed which, under less dangerous conditions, may be tolerated.

Grilbride, the driver, called as a witness for the defense, attempted to shift responsibility for plaintiff’s injuries upon the driver of another wagon which he claimed preceded the one driven by him, but his testimony in this respect is wholly uncorroborated by that of any other witness, and is doubly subject to discredit because it is that of an interested person and in conflict with the admissions made by him to Police Officer O’Brien who apprehended him shortly after the accident. The jury were, therefore, not bound to believe him. So, also, was the attempt to show that plaintiff’s injuries were sustained by her through collision with a wagon other than one owned by defendant’s association and under the control of its driver in direct conflict with the admissions resulting from defendant’s failure to deny the allegations of the complaint hereinbefore referred to.

It follows, therefore, that when both sides rested the learned trial judge again properly refused to dismiss the complaint.

Defendant urges as ground for a new trial that the learned trial judge unduly emphasized the duty of the driver of a vehicle upon a city street to avoid injury to pedestrians, but a perusal of the charge shows that the jury were properly instructed touching the correlative rights and duties of such persons. We quote from the charge: “ It is extremely important, right here, that you should understand the relative rights and duties of pedestrians and. drivers of vehicles in the street or highway. I charge you here, the rights of pedestrians and of the owner of a vehicle in the public street, and I don’t mean the sidewalk, are equal. You have as much right.in the center of the street as a coach driven by a millionaire and drawn by four horses. . You have equal rights in the street. No more the one than the other. What is the duty that the owner of a vehicle owes to the pedestrian ? It is the duty to exercise ordinary care, that I have already defined to you, to avoid injury to the pedestrian. And what is the duty of the pedestrian to the owner of the vehicle ? It is to exercise and observe ordinary care to avoid being injured by the owner of the vehicle,” and elsewhere the ordinary care is defined by the trial judge to be that degree of care which a prudent person would exercise under like conditions.

Next, defendant urges that the charge was prejudicial to him because it assumed that the injuries to plaintiff were the result of a collision with a team owned by defendant’s association and in control of its servant. In view of defendant’s admission, as hereinbefore pointed out, that such was the fact, an instruction to that effect would not only have been justifiable, but proper. As it is, however, the charge gave defendant the advantage of a defense which he was precluded from making upon the pleadings, for the judge said, “ I repeat to you, it is obligatory upon you in order to give a verdict for the plaintiff to find that it was the negligence of the defendant that caused the injury. And here pardon me for a moment to revert to the point whether the vehicle of the defendant caused the collision. You will remember the evidence, and my statement of it you must not ialce if it does not concur with your recollection. Reject it utterly, for it is for you to say what the evidence is in this case, and whether it be sufficient to establish any requisite proposition.''

Again, defendant urges that in contrasting the testimony of Tillie Stumpf, a witness for the plaintiff, with that of Grilbride, a witness for defendant, the charge tended to impress the jury with the fact that the trial judge discredited Grilbride. But be that as it may, it was not improper for the court to call attention to any seeming conflict in the witness’ statements, and an instruction that the jury were at liberty to reject Grilbride’s testimony altogether though wholly uncontradicted would not have been error, since the fact that Grilbride was the person charged with the negligence which resulted in plaintiff’s injuries made him an interested witness. Elwood v. Telegraph Co., 45 N. Y., 549; Honegger v. Wettstein, 94 id., 252; Bank v. Diefendorf, 123 id., 191; 33 St. Rep., 389.

So, also, defendant complains that it was error for the trial judge in charging the jury to read from an opinion of the court of appeals. It would be sufficient to dispose of this as a ground for reversal to say that no objection was made to the reading at the time, but this court has expressly held in Anderson v. McAleenan, 15 Daly, 449; 29 St. Rep., 406, that, "It is the duty of the judge to guide the jury, and whether he states the law from his own knowledge and memory, or reads it from decisions, treatises, or his own manuscript, is immaterial. It is within the province of the court to say that a certain case is in, its facts very like the •case at bar, provided, of course, that it be left to the jury to pass upon the facts.”

A number of other alleged errors in the charge and refusals to charge remain, but we have not sufficient time to discuss them in detail Each of them has been carefully considered, and our conclusion is that the rulings of the trial judge were correct in each instance.

The judgment and order appealed from should be affirmed, with costs.

Daly, Ch. J., concurs.


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    Elmira Fulton, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    1. Insurance (line)—Action to recover premiums paid on void policy —Notice to insurer.
    Defendant’s rules provided that a policy should be void unless the application was signed by the applicant and the persons whose lives were insured. Plaintiff took out policies on the lives of her sister and stepbrother, and signed their names to the application, on the assurance of the agent that this was a compliance with the conditions of insurance. In an action to recover the premiums paid on such policies, on the ground that they were void, Held, that the knowledge acquired by the agent at the time of taking the applications was chargeable to the defendant, although never communicated to it.
    2. Same—Waiver op condition.
    Defendant having elected to treat the' policies as void, could not be allowed for the first time on appeal to claim that the condition had been waived and that the policies were valid.
    3. Same—Forgery.
    Under such circumstances a claim that the subscriptions were forgeries cannot be sustained, as it does not appear that plaintiff represented them to be those of her sister and brother, and the agent in fact knew that they were not.
    4. Same—Negligence.
    The premiums having been paid under a mistake of fact, and defendant having received and had the benefit of them with knowledge of the invalidity of the policies, plaintiff’s neglect to read the conditions of the contract furnishes no bar to her right to recover.
    Appeal from a judgment for the plaintiff recovered in the district court of the city of Hew York for the third judicial district.
    Action to recover premiums paid under two certain policies of insurance issued by defendant to the plaintiff, and alleged to be void for non-compliance with the conditions of insurance at the time the same was attempted to be effected.

      Albert I. Sire, for resp’t; W. H. Arnoux, for app’lt.
   Bischoff, J.

—Plaintiff procured from defendant two policies of insurance in her favor, one upon the life of a sister, the other upon the life of a step-brother. She continued to pay the premiums for several years, when she claimed to have ascertained that the policies were valueless, because of a provision in the conditions of insurance to the effect that the policies should be null and void -unless the applications therefor were signed by the applicant, as well as by the persons whose lives were proposed for insurance, the signatures of the last mentioned persons having been omittted from the applications for the policies issued to her. She thereupon demanded return of the premiums paid, and that being refused brought this action to recover the amount.

On the trial plaintiff testified that the applications for insurance were solicited of her by one Walsh, who was conceded to have been defendant’s authorized agent for that purpose. She further testified that said agent represented to her that the conditions of insurance would be sufficiently complied with if the names of the persons whose lives were proposed for insurance, as well as her own, were subscribed to the applications by her, and that relying upon such representations and at the agent’s request she did' subscribe the names of all. She admitted that at the time, or about the time, the policies were issued to her she received from defendant, with each, a book intended for the entry of the receipt of the weekly premiums to be thereafter paid by her, and that she had ever since continued in possession of these books. The books were produced on the trial, and endorsed thereon was what purported to be extracts from defendant’s rules for this class of insurance, among them the one which provided that the policy should be null and void unless the application therefor was signed by the applicant and the persons whose life was to be insured. Plaintiff, however, denied that she had ever read these rules, or that she had any knowledge of the particular rule referred to before payment of the last of the premiums she sought to have returned to her.

There was evidence to show that at the time of applying for the insurances plaintiff knew of the condition which rendered the policies void unless the applications therefor were also signed by the persons whose lives were to be insured; but with the trial justice’s determination of the facts, upon conflicting evidence, we do not interfere, unless the determination is the result of palpable error, or a disregard of the preponderance of the evidence, Weiss v. Strauss, 39 St. Rep., 78, and the return does not indicate the existence of either of these grounds.

Walsh, defendant’s agent, knew that the names of the persons whose lives were proposed for insurance were subscribed to the applications not by them, but by the plaintiff, and that the candi-. tian of insurance in this respect was not complied with. This knowledge he acquired while engaged in the transaction of defendant’s business, and, though the facts were never communicated to the defendant, it was alike chargeable with such knowledge. Cox v. Pearce, 112 N. Y., 637, 640; 21 St. Rep., 808.

It was within the power of the defendant to waive the condition requiring the signatures of the persons whose lives were proposed for insurance to the application, Titus v. Glens Falls Ins. Co., 81 N. Y., 410, 419; and upon such waiver the policies issued to-plaintiff would have been effectual and obligatory upon defendant. Ho such defense, however, was attempted on the trial, and it is not for that reason available for the first time on appeal. Varian v. Johnston, 108 N. Y., 645; 13 St. Rep., 651. The pleadings in the court below were oral, and for the ascertainment of the nature of the action and defense our only recourse is to the proceedings on the trial.

The bringing of the action to recover the premiums paid assumed the policies issued to the plaintiff to be void for noncompliance with' the condition already referred to, and the attitude of the defendant on the trial was consistent only with a like assumption on 'its part, thus repelling the inference of a waiver of the condition from receipt and retention of the premium, and precluding the obligation of the policies issued from being raised as. a defense to the demand for return of the premiums. Having elected to treat the policies as void, defendant will not be permitted on appeal to change the theory of its defense and to assume a. position inconsistent with that taken on the trial. Home Ins. Co. v. Western Trans. Co., 51 N. Y., 93, 96; Stapenhorst v. Wolff, 65 id., 596; Lockwood v. Quackenbush, 83 id., 607; Wangler v. Swift, 90 id., 38, 44; Wines v. The Mayor, 70 id., 613; Codd v. Rathbone, 19 id., 37, 39.

But in attempted justification of its refusal to refund the premiums paid, and unmindful of its own turpitude in so doing, defendant urges that plaintiff’s recovery enables her to take advantage of her own wrong. What wrong ? That she was deluded into the payment of premiums to the defendant by its own agent ? Plaintiff is charged with the forgery of the names of her sister and stepbrother to the applications. But to constitute the crime of forgery an intent to deceive and to impose the subscription of the applicant as that of the persons whose lives were proposed for insurance must be apparent. Penal Code, § 509, etc. It nowhere appears, however, that she represented the subscription of the names of her sister and stepbrother to the applications to be their signatures, and that the subscription was not so was a fact known to defendant’s agent, at whose request and upon whose representation that it would answer defendant’s requirements she affixed the names. Instead of being the deceiver, she was the deceived, for, unless defendant consented to - waive the signature of the persons upon whose lives the insurances were intended to be effected, the policies issued to her were void, and she received no value for the premiums subsequently paid by her.

Hext, defendant urged that plaintiff should not be permitted to recover, because in the payment of the premium she negligently omitted to read the conditions of defendant’s contract of insurance endorsed on the books issued to her. Assuming plaintiff to have been negligent in this respect, we fail to perceive therein any justification of defendant’s refusal to return the moneys paid to it, and which it ought never to have received, since it elected to treat-the policies as void. It is elementary that money paid under a mistake of fact may he recovered, and the mistake of fact under which plaintiff paid the premiums sought to he recovered by her was that her applications for insurance complied with the conditions upon which the policies were issued to her, a mistake which in part at least was induced "by the misrepresentations of defendant's own agent. Neglect to ■examine or read a contract before it is entered into has sometimes been held a bar to relief, but only when the granting of relief would have worked injury to others, and in such cases the relief has been denied upon a proper invocation of the rule that as between two equally innocent persons, he through whose fault the injury was occasioned should suffer the loss. But when, if the relief is afforded, no injury will happen to. others, and particularly when the person to whom money was paid by mistake knew, or ought to have known, that he was not entitled to receive it, the neglect to read the contract will constitute no bar, and restitution of the moneys paid will be compelled, since under such circumstances a refusal to return the moneys would be unconscionable. Lawrence et al. v. American Nat. Bank, 54 N. Y., 433; Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 id., 452; Mayer v. The Mayor, etc., 63 id., 455.

The judgment appealed from should be affirmed, with costs.

Pryor, J., concurs.


author: Bookstaver, J.

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    Carlton H. Montanye, App’lt, v. George W. Montgomery et al, Resp'ts.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    1. Conversion—Mistake in delivery.
    A firm which was under contract to manufacture certain articles exclusively for plaintiff's assignors out of material furnished by them by mistake delivered some of said articles to defendants, who refused to return them on demand and kept and used them in their business. Held, that this amounted to a conversion, and that the delivery of a memorandum of the goods gave defendants no right to retain them.

      2. Counterclaim—Action by assignee.
    In an action brought by the assignee of a claim, a counterclaim for a debt due from the assignor cannot be allowed.
    Appeal from a judgment rendered in the district court of the ■city of New York for the first judicial district in favor of the respondent against the plaintiff for the sum of $53.92.

      Charles E. Hill, for app’lt; Edgar F. Brown, for resp’ts.
   Bookstaver, J.

—The complaint was for the conversion of goods alleged to belong to the firm of Church & Sleight upon which the respondents were entitled to a credit, leaving a balance of $56.08 due appellant, which cause of action was by Church & Sleight assigned to appellant. The answer was in effect a general denial, and asks for a dismissal of the complaint. From the return it appears that William Lang & Co., of Brooklyn, had for .some years previous to May 1, 1891, manufactured for the firm of Montgomery & Co., which then consisted of George W. Montgomery, one of the respondents in this action, and George W. Church, one of the plaintiff’s assignors, a patented machine known as the Church Double Speed Indicator. On the 1st May, 1891,, the partnership between Montgomery and Church expired by limitation, and the respondents formed a copartnership under the firm name of Montgomery & Co., and the plaintiff's assignor Church formed a copartnership with Sleight under the firm name of Church & Sleight. Previous to this 1st of May, the plaintiff’s assignor Church, on behalf, of his firm, entered into an agreement with Lang & Co. whereby they were to furnish to the latter firm the-steel necessary for the manufacture of the indicators, and the latter firm agreed to manufacture them exclusively for the firm of Church & Sleight. After this arrangement had been made, the new firm of Montgomery & Co. applied to Lang & Co. to make the same article for them, and were informed by the latter of their agreement to make exclusively for Church & Sleight, and that the-machines could not be made for or sold to the new firm of Montgomery & Co. It further appeared that on or about the 28th day of May, 1891, the shipping clerk of Lang & Co., by mistake, marked a box containing one hundred of the machines to Montgomery & Co., and gave the same to the carman, who, in accordance with the mark, delivered them to Montgomery & Co. about 1:30 P. M., on the same date: within a short time thereafter the firm of Church & Sleight notified the respondents of the mistake,, and demanded the return of the goods, which was refused. They kept the goods and used them in their business.

It also appears that before the cause of action was assigned to-the appellant, the firm of Church & Sleight had purchased from the respondents in this action goods to the amount of $43.92, which they credited upon the value of the indicators, assigning as-before stated the balance only of $56.08.

We think it clear from these facts that the appellant was entitled to recover, for the machines did not belong to Lang & Co., but to appellant’s assignors. It was proved and not denied that the goods were delivered to respondents by mistake; the subsequent notice of the mistake and demand for the return of the goods and its refusal amounted to a conversion. Conversion is the unauthorized assumption and exercise of the right of ownership over the goods of another to the exclusion of the rights of the owner. Laverty v. Snethen, 68 N. Y., 524; Pease v. Smith, 61 id., 477.

The contention of the defendants that the delivery of the goods and the memorandum made to defendant gave them authority over the goods, or right to retain them, is not well founded. A plaintiff may deliver bills for goods and still maintain trover. Richard v. Wellington, 66 N. Y., 308.

The plaintiff was an assignee of a claim merely, hence there could be no judgment against him for a claim against the assignors. Pendleton v. Johnson, 21 Civ. Pro., 272, does not sustain defendants’ contention, for in that case the judgment was for costs, only, which was authorized by § 3247 of the Code. It is a novel contention that an assignee of a claim can be held for the debt of the assignor, and we know of no authority to support it. Besides no counterclaim, was set up in the answer, and there can be no peco very by way of counterclaim where there is no demand for ■affirmative relief in the answer. Read v. Decker, 5 Hun, 646; aff’d 67 N. Y., 182.

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

Bischoff, J., concurs.


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    Horton A. Chapin, App’lt, v. Louis M. Allen, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 27, 1892.)

    Bills and notes—Condition precedent.
    Defendant, in part payment for a heater, gave a note payable in six months or -‘sooner, provided that the heater proves to work, satisfactorily.” At the same time plaintiff signed a written warranty of the heater pursuant to the original agreement. In an action on the note it was shown that the heater consumed more coal than was represented; that it leaked, and otherwise worked unsatisfactorily. Held, that the note was .subject to a condition precedent; that such condition was not performed, and that plaintiff could recover nothing on the note except what might be left over after putting the apparatus in complete working order.
    Appeal from a judgment rendered in favor- of the defendant in the district court of the city of New York for the third judicial district.

      Rockwell & Pearson, for app’lt; Sherman Evarts, for resp’t.
   Bookstaver, J.

—This action was brought upon a promissory note. On the trial the following facts appeared: Early in the .spring of 1890 appellant entered into a contract with the respondent to place a steam-heating apparatus in his house at W estwood, N. J., the whole to cost $409.72. When the work was done, the respondent paid all but fifty dollars in cash, and at the same time gave the promissory note in question in the words and figures following:

-“ $50.00. Westwood, June 20Ih, 1890.

“ Six months after date I promise to pay to the order of Horton A. Chapin fifty dollars, at Westwood, for value received; payable ■sooner, provided that the heater in my house at Westwood proves to work satisfactorily.

“L. M. Allen.”

At the .time this payment was made, the appellant signed the following special warranty, endorsed upon a letter written by him in April, 1890, containing specifications for the heater and a portion of the terms :

“ P. S.—The above apparatus to thoroughly heat your house to ;a temperature of seventy degrees in zero weather, and to work to your satisfaction.

“Yours, etc., H. A. Chapin.”

On the trial the appellant maintained that this warranty was ■demanded on the day the payment was due for the first time, that is, in the month of June; while the respondent maintained that it was only the embodiment in writing of a previous oral warranty made at the time of the oral contract and omitted from plaintiff’s letter containing specifications, etc. There being this •conflict of evidence, the finding of the court below is conclusive upon us, and we are bound to hold that the warranty was a part of the original agreement, and hence appellant’s contention that it was without consideration fails.

In December, 1890, there was an interview between the respondent arid appellant, and during that month several letters passed between them ; the respondent asserting that appellant’s apparatus was leaking and otherwise working unsatisfactorily. Late in that month the appellant sent a mechanic to the respondent’s house, who performed certain work on the apparatus in Mr. Allen’s absence, but which did not, as he claims, remedy the defects in the boiler. At maturity the note was presented for payment, which was refused; hence this action.

The judge who tried the case rendered a judgment in favor of the respondent on his defence to the note, but dismissed the counterclaim which was set up, without prejudice, for lack of evidence from which to compute the exact extent of respondent’s damages. From what has been said it is apparent that the promissory note sued upon was subject to a condition precedent, the non-performance of which would be a bar to a recovery in this action. It was not an ordinary commercial note made as part payment. It was a conditional one, the condition being that the apparatus put in should work satisfactorily. In other words, a part of the purchase money was withheld until the apparatus could be tested in cold weather. And as security for its satisfactory working, this note was given in .pursuance of the warranty before mentioned; and if there was a failure of the apparatus to properly heat, then of course the note was not to be paid in whole or in any part, if it required the whole of the note to put the apparatus in proper working order.

That this was the understanding of the parties at the time we think is established by the admission of the plaintiff, who says: It was understood this note was to take the place of a guarantee and the language of the note, which was made payable sooner provided the heater proves to work satisfactorily;” this would never have been inserted had it been given simply to obtain credit. We think it necessarily implies a condition, the full expression of which would be, “ payable in part only, or not at all unless the apparatus works satisfactorily.” The rule of law that between maker and payee conditions precedent can be proved by paroi is unquestioned, even where the face of the note is absolute. Steph. Dig. Ev., Chase ed., 163; Denniston v. Bacon, 10 Johns., 198; Bookstaver v. Jayne, 60 N. Y., 146; Juilliard v. Chaffee, 92 id., 529; Aldrich v. Stockwell, 9 Allen, 45. On the trial it appeared from the respondent’s evidence, which the court believed to be the most reliable, that the apparatus did not work satisfactorily; that it did not heat the house as it should; that it consumed more .coal than had been represented, and that it leaked and otherwise worked unsatisfactorily. These defects were substantial, and such as a reasonable man would have a right to object to, and largely diminished the value of the apparatus and the work done in putting it up. Hence, the appellant failed to perform the condition precedent, and had no right to recover upon the note anything except that which might be left after putting the apparatus in complete working order. It does not appear from the return how much this would have been, but we think there was quite enough evidence in the case to sustain the judgment rendered in the court below, and that to cure the defects Would have cost at least the amount of the note in controversy, and properly gave a verdict in his favor upon that ground.

The learned judge who tried the case having found that the warranty was a part of the original contract, which was verbal throughout, and was subsequently by the appellant only in part reduced to writing, the question of paroi evidence to vary a written instrument does not arise. It is not analogous to the case of Lamson Consolidated Store Service Co. v. Hartung, 45 St. Rep., 50, and the cases there cited. See also the opinion in the same case handed down at the last general term of this court. 46 St. Rep., 191.

The question of a counterclaim having been litigated in the court below, and the learned judge having dismissed it for want of proof, we think it the end of that counterclaim. It cannot be again litigated, as the matter is res adjudicata between the parties ; there having been evidence offered upon that subject, they cannot' be permitted to again litigate it. But we do not think it is necessary to reverse this judgment for that reason.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.


text:
    Oscar Y. Babcock, App’lt, v. Fay Smith, Resp’t.

      (New York Common Pleas, General Term,

      Filed July 11, 1892.)

    Conversion—Boarding house keeper’s lien—Judgment.
    An action to enforce a boarding house keeper’s lien upon property of a boarder which he has clandestinely removed is one for conversion of personal property within the meaning of sub. 2 of £3 2895 of the Code, and the justice is bound to insert in the judgment the liability of the defendant to arrest upon execution.
    Appeal by the plaintiff from a judgmentin his favor, rendered in the district court of the city of Hew York for the eighth judicial district. The action was commenced by the personal service of the summons .and a copy of the complaint upon the defendant. Upon the return of such summons and copy of the complaint, namely, on the 12th day of May, 1892, the defendant failed to put in an appearance, and the justice heard proof of plaintiff’s cause of action, which was substantially as follows: That the plaintiff was a boarding-house keeper in the city of Hew York) that the defendant was a boarder, occupying a room and taking .his breakfast with plaintiff; that defendant, after becoming indebted to plaintiff, clandestinely left the house unknown to plaintiff or his family, and in a secret manner removed all his baggage and wardrobe, except an old pair of pants and a vest. The fact that he had left did not become known until some time after he had gone away. When found, the defendant refused to pay his board. Plaintiff claimed a lien against the defendant’s baggage and wardrobe not in actual use under the law giving boarding-house keepers a lien upon all baggage and personal effects of their boarders for unpaid board. Upon the close of the proofs the justice reserved his decision, and on the 14th day of May, 1892, rendered judgment in favor of the plaintiff and against the defendant for $19.04 damages and $2.50 costs, making a total of $21.54. The counsel for the plaintiff thereupon requested the justice to render a judgment on which an execution could be issued against defendant’s body, which the justice refused to do, and to which refusal the plaintiff’s counsel excepted. From the judgment plaintiff thereupon appealed to this court. On the argument of the-appeal plaintiff only appeared by counsel, the defendant not appearing.

      John A. Grow, for app’lt.
   Per Curiam.

—The precise question involved in this appeal was presented in this court in the case of Searing v. Goodstein, 11 Daly, 236, and it was there held that the manner of commencing an action does not determine the question as to whether the plaintiff is entitled to have the clause “ defendant liable to execution against his person ” inserted in the judgment, and that where, as in this case, the cause of action is for the wrongful conversion of personal property, the same is one of the actions specified in subd. 2 of § 2895 of the Code of Civil Procedure, and consequently the justice was bound to insert in the judgment the liability of the defendant to arrest upon execution.

The judgment is therefore reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

Bischoff and Giegerich, JJ., concur.


author: Giegerich, J.

text:
    Samuel P. Ferree, App’lt, v. Edward Ellsworth et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed July 11, 1892.)

    ■Contract—Mistake—District courts.
    District courts have no power in an action on a written instrument which completely expresses the agreement of the parties to receive proof that the same was made under a mistake of fact or ignorance of a material fact, as they have no equitable powers and cannot relieve on the ground of mistake.
    Appeal from a judgment of the district court in the city of Uew York for the first judicial district in favor of the defendant.
    This action was brought by the appellant, who is doing business under the name of The Street Railway Advertising Co., against the defendants, who are the proprietors of “ H-0 ” and “Sweet Glover Flour,” to recover $130, the first monthly payment on a written contract of advertising. The further facts are stated in the opinion.

      Douglass & Minturn, for app’lt; Charles A. Murphy, for resp’ts.
   Giegerich, J.

—The plaintiff, who was in the advertising business, had leased the advertising privilege in certain street car lines and then solicited advertisements for space. On the 21st day of October, 1891, one Bender, a soliciting agent, received from defendants the following written proposition, namely:

“ (Dictated by E. E.) “New York, October 21, 1891.

Street Railway Advertising Co., %31 Broadway, City.

“ G-entlemen—Please insert one double H-0 and one double Sweet Clover card in ninety-eight (98) full time cars of your lines in one-half of the following: Bergen street, 22 cars; Butler street, 13; Fifth avenue, white line, 28; Fifth avenue, green line, 22; Fifteenth street line, 14; Hicks street, 13; Park avenue, 11; Sackett street, 16; Seventh avenue, 33 ; Vanderbilt avenue, 24. The H-0 card is to be on one side of car and the Flour card on the other. A complete list is to be furnished us on November 1, 1891, or on date of placing our card there after that date, and to continue six months. Terms to be $130 per month payable monthly after the expiration of first month. Size of cards 11 by 22.

“ Very truly yours,

“Edward Ellsworth & Co.”

This letter was submitted by Bender to the plaintiff’s general manager in New York, who accepted the same. This is the contract on which the action is based. It is admitted that the advertising has been done, but the defendants claimed that they wrote the figures “ 130 ” by mistake and intended to write instead “ $65.” Edward Ellsworth, one of the defendants, was permitted on the trial, notwithstanding the plaintiff’s objection and exception, to testify that when he dictated the letter in question the figures “ $130 a month” were inserted by mistake.' The witness was further asked: “ How did this mistake occur ; have you any explanation as to how it occurred ? ”

To this question counsel for the plaintiff objected, but the court admitted it, to which exception was duly taken, and the witness answered, “ the mistake occurred in this way, the contract price being $65, and double the amount of space being specified, I doubled the figures $65.” Pryor, J., in delivering the opinion of this court in Lamson Consolidated Store Service Co. v. Hartung, N. Y. Law Jour., June 23, 1892; 46 St. Rep., 191, well says: “The rule is fundamental and familiar that if the paper appear on its face to be a complete contract, then, in the absence of fraud, accident or mistake, paroi evidence is inadmissible to enlarge its terms, the conclusive presumption of law being that such paper embodies the entire agreement between the parties.” In Thomas v. Scutt, 127 N. Y., 133; 38 St. Rep., 692, it was held that tq bring a case within the rule admitting paroi evidence to complete an entire agreement, of which the writing is only a part, two things are essential; first, the writing must not appear, on inspection, to be a complete contract, and second, the paroi evidence must be consistent with and not contradictory to the written instrument.

The writing in question appears upon its face to completely express the agreement of the parties. The respondents, however, urge that the ruling of the justice should be sustained because the agreement was made under a mistake of fact, and the appellant, on the other hand, contends that if there was a mistake in the written contract, it could only be corrected in an action to reform the instrument, which action must be brought in a court of equity, and that a district court has no such equitable powers. The question thus arises whether district courts have the power to entertain the defense that the contract was made under a mistake of a material fact, and by reason thereof relieve the defendants from all liability thereon.

The general rule is that an act done or contract made under mistake or ignorance of a material fact is voidable and relievable in equity. Story’s Eq., § 140; Willard’s Eq. Jur., 69. It was, however, held by this court in Williams v. Carroll, 2 Hilt., 438, that district courts possess none of the peculiar powers of courts of equity, and that they have no jurisdiction whatsoever in respect to them, and this rule again received, recognition by this court in the case of Salter v. Parkhurst, 2 Daly, 240. From these authorities it clearly appears that district courts have no power to receive proof, in an action on a written instrument which completely expresses the agreement of the parties,- that the same was made under a mistake of fact or ignorance of a material fact; and it follows the evidence on the part of the defendants that they made the agreement under a mistake of fact was clearly inadmissible.

The defendants by their answer admitted that the sum of sixty-five dollars was due from them to the plaintiff upon the above set forth agreement. Judgment should have been rendered in favor of the plaintiff, in any event, for sixty-five dollars with interest and costs up to the time of the payment of the money into court. The justice, however, erroneously rendered judgment in favor of the defendants for ten dollars costs.

For these reasons the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Bischoff, J., concurs.


author: McGown, J.

text:
    Frederick Haas, Resp’t, v. Pietro Altieri, App’lt.

      (City Court of New York, General Term,

      Filed July 1, 1882.)

    Conversion—Check .
    Under a building contract the first payment was to be made to plaintiff when the first tier of beams were on, out of a payment to defendant, who was to be reimbursed out of subsequent instalments. Plaintiff’s testi many tended to show that the check was made payable to defendant and given him for plaintiff; that he endorsed the same, but refused to deliveiit. Defendant testified that he refused to endorse it, as plaintiff had. stopped work and he would not do so unless plaintiff went on so that he could get his payments. Plaintiff replied that he was ready to go on, but was prevented by other work not being finished. Held, that if plaintiff’s, evidence was credited defendant was guilty of conversion the moment he failed to deliver the check, and that a verdict for plaintiff would not be disturbed.
    Appeal from a judgment recovered against the defendant upon the verdict of a jury, and from the order denying a motion for a new trial.

      Hays & Greenbaum, for resp’t; Thornall, Squiers & Pierce, for app’lt.
   McGown, J.

—The complaint of the plaintiff shows to the court:

That at and prior to the times hereinafter alleged, the plaintiff was and still is the owner of the following chattels; that is to say:

One check dated September 29, 1890, on the Union Trust Company for the sum of one thousand ($1,000) dollars, and payable to the order of' Altieri Brothers, endorsed on the back, “Pay to-the order of Frederick Haas. . Altieri Brothers.”

II. That said defendant, on or about the 29th day of Septena her, 1890, wrongfully detained, and still wrongfully detains, the said chattel from the said plaintiff.

That prior to the commencement of this action the plaintiff duly demanded from the defendant the return of said chattel to the plaintiff, but the said defendant refused, and still refuses, to return the same to this plaintiff.

IH. That the chattel was, at the times aforesaid, of the value - of one thousand ($1,000) dollars.

IY. That by means of the wrongful acts aforesaid the plaintiff-sustained damage to the amount of one thousand ($1,000) dollars.

The defendant in his answer:

Denies each and every allegation contained in the first paragraph of plaintiff’s complaint.

II. He denies that this defendant on or about the 29th day of September, 1890, wrongfully detained, and still wrongfully detains, the said chattels alleged in the first paragraph of the complaint from the said plaintiff.

He denies that prior to the commencement of this action the plaintiff duly demanded from this defendant the return of said chattel to the plaintiff.

IH. He denies upon information and belief that said chattel was-at the times alleged in the complaint of the value of one thousand ($1,000) dollars.

IY. He denies each and every allegation contained in the fourth, paragraph of the complaint.

The facts briefly stated are as follows:

The plaintiff made a contract with one Eva Stafford, on July-10, 1890, whereby he agreed to do certain framing work and furnish certain materials on six houses to be erected on the south side of Fifty-third street, in the city of Hew York, for the sum of six thousand ($6,000) dollars, to be paid as follows: One thousand ($1,000) dollars when the first tier of beams is on the six houses ; one thousand ($1,000) dollars when the third tier of beams are on; two thousand ($2,000) dollars when the fourth tier of beams are on; fifteen hundred ($1,500) dollars when the fifth tier of beams are on, and fifteen hundred ($1,500) dollars when the sixth tier of beams are on.

It appears that one thousand ($1,000) dollars were to be paid to the plaintiff when the first tier of beams was on, and that the defendant agreed that the plaintiff should be paid the aforesaid sum of one thousand ($1,000) dollars out of the first payment to be made to the defendant, who was the contractor for excavating the cellars for the same premises, and that the thousand dollars in question taken .from Altieri’s payment were to be paid to Altieri out of the fourth and fifth payments on the plaintiff’s contract, five hundred ($500) on each payment.

In order to insure payment of the one thousand ($1,000) dollars to the plaintiff it was provided that the one thousand dollars should be taken out of the first payment due to the defendant, and that it should be given to E. A. Lovell, who had charge of the money matters for Mrs. Stafford, and who, as trustee, was to pay the amount to the plaintiff when the first tier of beams was on.

The defendant was a party to this contract, as appears from the memorandum appearing at folios 56 and 57, whereby he agrees to pay to the plaintiff the sum of one thousand ($1,000) dollars out of his first payment; and also agrees that Mr. Lovell shall hold it in trust and pay it to the plaintiff when the first tier of beams are on.

E. A. Lovell, above referred to, called as a witness on the part of the plaintiff, testified:

“ That he was familiar with the condition of these buildings referred to on or about the 29th day of September, 1890. The first tier of beams was on the six houses at that time. * * *

“ When the first tier of beams was .upon the six houses, according to Mr. Altieri’s or Mrs. Stafford’s contract, I drew a check. * * * I drew this check for one thousand ($1,000) dollars upon the Union Trust Company to Pietro Altieri & Brothers, and delivered it to Pietro Altieri, the defendant, and wrote upon the back of it, ‘ Pay to the order of Frederick Haas,’ and then Mr. Altieri signed ‘ Pietro Altieri & Brothers,’ and then I delivered it to him * ■ * * upon the same day the check bears date.

“I had a conversation with him when I delivered it to him, as I was trustee in this transaction, and wishing to carry out what I agreed to do, and which was to deliver to Mr. Haas one thousand ($1,000) dollars.

“I asked Mr. Altieri, in order to allow me to carry out the arrangement which I had agreed to do, to deliver the check to Mr. Haas.

“He said 11 will see him this evening, and deliver the check to him.’ So I gave it to him after I obtained the receipt for it.

“ Q. You gave him the check upon the promise by him to you that he would deliver it to Mr. Haas, acting as messenger for you ? A. Yes, sir, as I understood it.”

Frederick Haas, the plaintiff, testified:

“ The day after Mr. Altieri received the check he came to my house * * * and told me he had the check. I said, ‘That is very good. That is what 1 want.’ He said, ‘ But I won’t give it to you.’ I said, ‘Why?’ He said, .‘I want my balance first.’ I said, ‘Then I have to look to Mr. Lovell.’

“Q. Did you demand the check from him? A. Yes, sir; he did not give it to me; I never received anymoney on that check.” The check referred to is as follows:

“ Hew York, September 29, 1890.

“ Union" Trust Company of Hew York,

“ Pay to the order of P. Altieri & Bros., one thousand dollars-

“$1,000. “E. A. Lovell.”

(Endorsed.) “ Pay to the order of Frederick Haas.

“ Pietro Altieri & Bros.

“Pietro Altieri.”

The defendant Altieri testified:

“ Q. When Mr. Lovell gave you this check what did you say to him about, it ? A. He gave me two checks for one thousand ($1,000) dollars each, and said : ‘ How is the time you have got to give a $1,000 to Frederick Haas.’ I said ‘ I don’t believe I will give it to him at present, because the building is stopped.’ Then he asked me to endorse the check, and I said: 1 If you want me to endorse it upon the back, I won’t do it.’

“Then he wrote upon the back himself: ‘Pay to the order of Frederick Haas; ’ and I took the check in my hand and said: 1 Well, I will take this check and I will go to Frederick Haas, and suggest to him to go on and put the beams upon the rest of the houses, by which I could reach my payment and when that is done, I will give it to him.’ Mr. Lovell said,‘You take it that, way, but if you do not give it to him, I will stop its payment in the bank.’ So I went up to Mr. Haas and said to him, ‘ If you will agree with me to go on with the work, so that I get my $1,000, I will give you this check.’ He said ‘Ho, I will not agree to anything of that kind ; if you have the check, leave it with me.' So I went away and went to the bank; I struck out the-words upon the back, and I deposited it in my bank; but it was never paid to me; I have never received a dollar upon it. Upon the 29th of September, 1890,1 signed the receipt shown me for $2,000, from Mr. Lovell. That $2,000 which I received on that day was received in two checks.

“ Q. Did that include the $1,000 check upon which there was the endorsement ‘ Pay to the order of Frederick Haas?’ A. Yes, sir.

“He, Lovell, testified that he gave it to me upon the condition that I was to deliver it to Mr. Haas, but I say that I said that I would not do it. I think I had the check in my possession when this case was commenced. I did give it back to Mr. Lovell, but that was some months after the commencement of the suit;

“ Q. Some months after this suit was commenced, you had some adjustment of your affairs with Mr. Lovell on account of the claim against those houses, and upon that adjustment you gave him back this check upon that settlement ? A. He settled my bill, and I gave him back the check.”

A notice under the mechanics’ lien law was filed in the county clerk’s office on November 28, 1890, by Frederick Haas, the plaintiff herein, against Eva Stafford, for $4,000.

A satisfaction of the lien, dated and executed on December 16, 1890, was filed on January 26, 1891.

A written demand was made by the attorneys for the plaintiff herein upon the defendant for the $1,000 check in question.

The plaintiff testified that:

“ The first tier of beams was on completely ; the second, third and fourth tiers were up on four houses as far as the walls were ready; we could not put up any more, because the walls were not up; I had all my beams upon four tiers ready for all to be put in their places; the only reason 1 could not put them up was because the masons had not the walls up. * * * When Altieri paid me the $1,000, he asked me if I was ready to proceed with the work, and I told him yes; I did not proceed because nothing was ready, and therefore I could not proceed.”

John Hausman, called on behalf of plaintiff, testified that he was a framer; that he worked for the plaintiff; that the reason that the second and third tiers of beams were not put upon the other houses was because the walls were not ready; the beams were ready; they were lying upon the street; that he went there for two months, and that the walls during that time were not put up any higher.

The trial justice, in his charge, fully and fairly submitted the case to the jury; the question of fact upon which the jury were to pass was whether the check in question was or was not converted by the defendant.

Upon this question the trial justice charged that if the jury believed the evidence offered on the part of the plaintiff, the moment the defendant failed to deliver the check to the plaintiff he was guilty of conversion, and the plaintiff under such state of facts would be entitled to recover.

The jury having found upon the questions of facts submitted to them their verdict for the plaintiff, evidently believed the testimony offered on the part of the plaintiff, and we find no good reason for disturbing their verdict.

We have examined the exceptions taken by the defendant’s counsel, and find no merit therein.

Judgment and order affirmed, with costs to the respondent.

Fitzsimons, J., concurs.