text:
    Samuel Kreiser, Resp’t, v. Cyrus Scofield et al., App’lts.

      (New York Common Pleas, General Term,,

      Filed December 3, 1894.)

    1. Execution—Discharge from arrest.
    Section 572 of the Code does not avoid the execution.
    2. False imprisonment—Privilege.
    An action for false imprisonment for the arrest of a privileged person will not lie at common law.
    8. Same.
    Such action under §§ 863, 864, it seems, lies only against the officer or person actually making the arrest.
    Appeal from a judgment of the general term of the city court, affirming a judgment in favor of plaintiff.

      William 0. McCrea, for app’lts; Abram Kling, for resp’t.
   Pryor, J.

The action is trespass for false imprisonment. The detention of the plaintiff was by execution against the person after judgment, and without an order of arrest. Upon motion in the court in which the action was depending, the execution was vacated and set aside, and the defendant discharged. The order of vacatur does not state that the process was void, bnt recites that it was superseded because not issued within ten days after the return of execution against property, nor within three months after entry of judgment, and because the defendant was arrested while returning from attendance in court as a witness. The order of vacatur, we assume, is res judicata between these parties in the present action; but only then as to matters relevant and material to the motion, and not as. to the facts irrelevant aud immaterial. People ex rel. Reilly v. Johnson, 38 N. Y. 63. Upon the motion to set aside the process, to fact that it was not issued within ten days after return of the property execution, nor within three months after judgment, was wholly immaterial, and imparted to the court no power to supersede it. Redner v. Jewett, 54 St. Rep. 774; Sweet v. Norris, 12 Civ. Proc. 175,176; Id., 110 N. Y. 668; 18 St. Rep. 1028. The unanimous decision of the court of appeals is conclusive upon the point. Here, then, is no adjudication that the execution against the plaintiff’s person was void for irregularity. The process being valid, the inference is unavoidable that it was set aside only because of irregularity in its service. But at common law an arrest of a privileged person is voidable only, not void, —does not constitute a trespass,—and so is unavailable and insufficient as foundation of an action for false imprisonment. Deyo v. Van Valkenburgh, 5 Hill, 242; Smith v. Jones, 76 Me. 138; 7 Am. & Eng. Enc. Law, 694, notes; 3 Lawson, Rights, Rem. & Pr. 1067, and note; Cooley, Const. Lim. (5th ed.) 162, note. Code, §§■ 863, 864, denounces an arrest of a privileged witness as void, and authorizes an action for the wrong. But it is manifest, on the pleadings and the proceedings at the trial- that the suit was instituted and conducted as a common-law action. No reference was made to the statute, nor pretense of a claim of privilege by the plaintiff, nor right asserted to treble damages. Incontestably, the ground of action on which the plaintiff reposed was the irregularity of the execution, because issued too tardily. But, whether proceedings on the ground of irregularity in the execution, or in the arrest in violation of plaintiff’s privilege, in neither aspect can the suit be maintained as a common-law action, because the execution itself was regular and valid (citations supra), and because arrest of a privileged person will not sustain an action for false imprisonment (citations supra).

Supposing, however, that the action proceeds upon the statute, still it is impossible to uphold it.

The statute (Code, § 863) authorizes an action only against the officer or person making the arrest.” And even they are not liable unless the person arrested claims his exemption. Section 864. True, he is not bound to make the affidavit until required by the officer, but clearly he must claim his privilege; for, until such claim be known to the officer, his requirement of the affidavit would be preposterous. No proof, we may add, was made by the plaintiff that he apprised the officer of his exemption, but an offer by the defendants Of evidence to the contrary was rejected. It is the obvious and inevitable construction of the statute (§§ 863, 864) that the action is authorized only against the person making the arrest. Had the liability imposed been intended to comprehend the plaintiff and his attorney, the law would have been so declared in terms, instead of suffering such a severe penalty to lurk in the ambush of an equivocal implication. If it be argued that he who directs, aids, or abets, a trespass is himself a trespasser, we answer that there is neither allegation nor proof that either of the defendants suggested or contemplated the arrest of the plaintiff while protected by his privilege. The uncontradicted evidence is all to the contrary. The attorney, defendant McOrea, testified that he instructed the deputy that the plaintiff “ was not to be arrested until he got home,” and that “he intended he should be arrested in his place of business, after he had returned from being examined.” Nay, more; the attorney endeavored to countermand the execution, but the plaintiff’s own attorney insisted on his arrest. The arrest was made in the office of the plaintiff’ attorney, and the certain and incontrovertible inference from the evidence is that it was made at the attorney’s instance. The process having been delivered to the sheriff without direction for its illegal execution,—nay, with positive instruction not so to execute it,—neither the defendant Scofield nor the other defendant, his attorney, is responsible for the arrest. Welsh v. Cochran, 63 N. Y. 181. Supposing, again, defendants answerable for plaintiff’s arrest, still the action is without support, for lack of proof that the plaintiff was arrested while privileged as a witness. The immunity from arrest prevails only while the witness is going to court, or in court, or returning from court. The undisputed evidence is that the arrest was made after the examination of the plaintiff, and his departure from the courthouse, and while he stopped in his attorncy’s office, upon a business not at all connected with his service or duties as a witness. His priviledge was then expired. Marks v. La Societe Anonyme de l' Union des Papeteries, 46 St. Rep. 660; affirmed in the court of appeals on the opinion below. Finch v. Galligher, 12 N. Y. Supp. 487. In these cases the witness was from abroad, and even less indulgence is allowed to a resident of the city. It is not to be imagined that the plaintiff, as a witness, was embarrassed or molested by his arrest.

The learned trial judge committed error in denying the motion to dismiss the complaint. Judgment reversed and new trial ordered ; costs to abide the event.

All concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Jacob Hurwitz, Resp’t, v. Calman Hurwitz et al., App’lts.

      {New York Common Pleas, General Term,

      Piled December 3, 1894.)

    Fraudulent conveyance—Condition precedent.
    A judgment creditor cannot, before acquiring a lien by a levy on the debtor’s property, maintain an action at law against the debtor and another for a fraudulent transfer of such property.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff.

      Abraham Gruber, for app’lts ; Jacob Manheim, for resp’t.
   Pryor, J.

If this action be well brought, then we have the anomaly of a debt secured by two distinct and successive judgments,—one against the debtor ; the other against the debtor and the defendant Eouse, to whom no responsibility for the debt is pretended to be imputed. Satisfaction of the later judgment would not exonerate defendant Hurwitz from the prior judgment, nor would satisfaction of the prior judgment discharge defendant Eouse from the obligation of the judgment against him ; for, although the original debt of the defendant Hurwitz be included in the second recovery, yet the two actions are for diverse causes, and the two judgments proceed upon totally different and dissimilar grounds of liability. Such a preposterous consequence of the judgment before us suggests a formidable presumption against its validity. And, indeed, upon principle, it is impossible to uphold the judgment. The action is in tort. How, invasion or infringement of the plaintiff’s legal right is an essential and indispensable element in the constitution of an actionable wrong. “ For the law to furnish redress, there must be an act which is wrongful, and it must take effect on some legal interest of the party complaining. Heither one, without the other, will suffice.” Bish. Hon con t. Law, § 22. “ There must not only be loss, but it must be brought about by a violation of the legal rights of others,” else it is damnum absque injuria. 1 Sedg. Dam. 39. “ Damnum sine injuria— that is, damage unaccompanied by legal wrong—is not actionable at law.” Broom, Com. Law, 74, 75. “ Ho one, legally speaking, is injured or damnified, unless some right is infringed; ” and this although the motive of the act complained of be ever so evil. Mahan v. Brown, 13 Wend. 261, 265; Phelps, v. Howlen, 72 N. Y. 39, 46; Stevenson v. Newnham, 13 C. B. 285; Barnardiston v. Soame, 6 Howell, St. Tr. 1091. Hence, the definition that a wrong is “ an invasion of a right, to the damage of the party who suffers it.” Cooley, Torts, 98. So, the maliciously and fraudulently influencing a testator to alter his will affords no ground of action to the disappointed legatee, because he has been distributed in no legal right. And the defect of legal wrong is not supplied by allegation and proof that the act was done in pursuance of a conspiracy. Hutchins v. Hutchins, 7 Hill, 104; Savill v. Roberts, 1 Ld. Raym. 374; Bish. Noncont. Law, § 23. Similarly, an action will not lie to enforce a mere moral obligation, Ashley v. Dixon, 48 N. Y. 430, 432; nor in reparation of a seduction, if no right to service be infringed. Grinnell v. Wells, 7 Man. & G. 1033.

What, then, is the supposed right of the plaintiff, which upon the pleading and proof, the defendants have violated ? This only: That after judgment, but before execution, against him, the defendant Hurwitz, in conspiracy with the defendant Rouse, fraudulently disposed of his goods so as to defeat satisfaction of plaintiff’s debt. But, before acquisition of a lien on his debtor’s goods by execution or otherwise, a judgment creditor has no interest in those goods, which a judgment debtor injures, in a legal sense, even by a fraudulent transfer of the goods. In Moran v. Dawes, Hopk. Ch. 365, the complainant filed her bill to enjoin the defendant from consummating his declared purpose of defeating her verdict of $9,000 for seduction by alienating his real property before entry of judgment. In refusing the relief, Chancellor Sandford thus stated the ground of his decision: “ Our laws have determined with accuracy the time and manner in which the property of a debtor ceases to be subject to his disposition, and becomes subject to the rights of his creditor. A creditor acquires a lien upon the lands of his debtor by a judgment, and upon the personal goods of the debtor by the delivery of an execution to the sheriff. It is only by these liens that a creditor has any vested or specific right in the property of his debtor. Before these liens are acquired, the debtor has full dominion over his property; he may convert one species of property into another, and he may alienate to a purchaser. The rights of the debtor and those of the creditor are thus defined by positive rules ; and the points at which the power of the debtor ceases, and the right of the creditor commences, are clearly established. These rights cannot be contravened or varied by any interposition of equity.”

Hence the rule that property of a judgment debtor, fraudulently transferred, may not be subjected to satisfaction of the judgment until the creditor acquires a lien upon it. Brinkerhoff v. Brown, 4 Johns. Ch. 671.

In Adler v. Fenton, 24 How. 407, the federal supreme court adopted the principle enunciated in Moran v. Dawes, supra, and thence deduced a conclusive decision of the question in controversy, namely, that a creditor without a lien on the property of his debtor “ cannot bring an action against his debtor, or against those combining or colluding with him to make dispositions of his property, although the object of those dispositions be to hinder, delay, and defraud creditors.” The precise point in agitation has been adjudicated by other courts of high authority. Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Moody v. Burton, 27 Me. 427; Smith v. Blake, 1 Day, 258; Green v. Kimble, 6 Blackf. 552. In Braem v. Merchants’ Nat. Bank, 25 St. Rep. 281; 6 N. Y. Supp. 846, our ,own supreme court, fourth department, in an identical action, by unanimous decision of the full, bench, made a similar determination; and in 127 N. Y. 508; 40 St. Rep. 327, on review of the case, the court of appeals affirmed the judgment, saying at page 515, 127 N. Y., and 40 St. Rep. :“ It is not seen that there was any invasion by the defendant of any legal rights of the plaintiff. A different question would have been presented if an existing lien of the plaintiff had been impaired or divested by the act of the defendant.”

Upon another ground still the action fails of support. It is elementary that to maintain an action for fraud the plaintiff must prove, not only the wrongful act, but a consequent damage,— must show, in the technical language of the law, the damnum as well as the injuria. Benton v. Pratt, 2 Wend. 385. How, in Moody v. Burton, supra, it was held, in an action like the present, that no legal damage could accrue to the plaintiff; the court saying, per Shepley, J. : “ flow are the damages which a creditor may thus recover to be proved and estimated ? The plaintiff had obtained no lien on the property conveyed, by attachment, judgment, or any other manner [a judgment merely is no lien on personalty],—had no special property in or claim to it. The only proof of loss or injury which he could make would be that his debtor had fraudulently conveyed his property, without having received any value for it, and with the intent to avoid payment of his debt, and that he had no other means of obtaining payment. All other creditors could make the same proof. Upon such proof he could not be entitled to recover the amount of his debt, for to that he had no better title than other creditors. He has not, therefore, lost it. If it had not been fraudulently conveyed, it was as probable that it might have been applied to the payment of other debts as to his own. The debtor might have disposed of it fairly, and for a valuable consideration, or have lost it by accident or misfortune. The only loss or injury shown by the proof would be that he had been deprived of a chance or possibility of obtaining payment from that property. This would be stating his loss or injury too strongly, for he would still have the chance of attaching or securing it or its proceeds in the hands of the fraudulent holder. A jury would be authorized then to estimate the value only of his chance to secure it, and have it applied to the payment of his debt while in the hands of his debtor, for this only has he lost. There would be no data, tables, or other means afforded, by which such a chance could be estimated. The loss or injury would be too uncertain and remote for legal estimation.”

To the same effect are the opinions of Morton, J., in Lamb v. Stone, supra, and Metcalf. J., in Wellington v. Small, supra.

The respondent cites to us two adjudications in support of the judgment: Penrod v. Morrison, 2 Pen. & W. 126; 8 Serg. & R. 522, and Quinby v. Strauss, 90 N. Y. 664. The Pennsylvania decision is undoubtedly in point, but is sustained neither by argument nor authority ; and, because of the defeát of equity jurisdiction peculiar to that state, a remedy by common law action may be thought indispensable. Still, we cannot assent to the doctrine of the case. ' The decision of our own court of appeals, if an actual adjudication of the point in question, would, of course, be conclusive. But, upon reference to the full report of the case, we find —First, that the point was not 'presented or considered at any stage of the action, and has therefore not been adjudged; and, secondly, that the plaintiff had acquired a lien by issue of execution prior to the mortgage, by foreclosure of which the goods were fraudulently appropriated by the defendant Strauss. The execution was in April, 1877, and the mortgage in September, 1878. The apparent decision was disregarded by the general term in Braem v. Merchants' Nat. Bank, supra, because of the unsatisfactory report of the case. We decline its authority, because the point here in contention was not before the court, and so was not determined, and because the court of appeals, in Braem v. Merchants' Nat. Bank, expressly repudiated the principle supposed to have been propounded in Quinby v. Strauss. We have discovered, however, an adjudication, not cited by counsel, which expressly affirms the validity of this action. Smith v. Tonstall, Carth. 3. The decision was in the reign of James II., before legal principles were as accurately ascertained and solidly established as-at this day, in this country; and before, in the evolution of equity jurisdiction, the creditor’s bill had been developed into its present, efficiency. At all ^events, we have no hesitation in rejecting the authority. The inevitable conclusion, therefore, is that this objection is not to be maintained.

The plaintiff objects, then, that he is remediless. Hot at all. Treating the transfer by his debtor as voidable, he may levy on the property in the hands of the fraudulent vendee. Waiving that, by recourse to the specific redress providéd by law, he may, by creditor’s bill or supplementary proceeding, subject the property fraudulently transferred, or its proceeds, to the satisfaction of his j udgment. These are the appropriate and the sufficient remedies for the wrong of which the plaintiff complains.

Judgment - and order of general term and trial term reversed, and judgment absolute for defendants, with costs.

All concur.


text:
    William J. Townsend, Resp’t, v. Thomas Auld, App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Bills and notes—Protest—Proof.
    To be presumptive evidence, the notarial certificate must conform to the requirements of § 928 of the Code.
    2. Same.
    The certificate, though it fails to specify the residence and postoffice of the party to whom notice is sought to he given, is still presumptive evidence of the facts certified, and proof aliunde is competent to show that the postoflice to which the notice was sent was the party’s proper post-office.
    3. Same.
    Evidence that the notice of protest was not received is competent to rebut the presumption arising from the recital in the certificate as to mailing.
    4. Same—Mailing.
    The deposit of the notice of protest in a private letter-box of a private office is not a deposit in the postoffice.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict directed for-plaintiff.

      Theo. B. Friend, for app’lt; Charles P. McClelland, for resp’t.
   Pryor, J.

Action on promissory note against indorser. Defense, no notice of dishonor. The note was payable at the Tarry-town National Bank, Tarrytown, N. Y. A notarial certificate of dishonor was introduced in evidence, but, although purporting to be in conformity to the provisions of § 923 of the Code of Civil Procedure, it failed to specify “the reputed place of business of the defendant,” and “the postoffice nearest thereto.” . The defendant served no affidavit that he had not received notice of dishonor, and the point presented for decision is, whether, because of the absence of the specification of residence and postoffice, the certificate was nugatory as presumptive evidence of notice of dishonor.

The adjudications cited by the plaintiff in support of the sufficiency of the certificate as presumptive notice of dishonor, critically examined, afford no ground for his contention. Treadwell v. Hoffman, 5 Daly, 207, 213, proceeds avowedly on the authority of Ketchum v. Barber, 4 Hill, 225, 237. But Ketchum v. Barber proceeds on a palpable misconception of the import of the statute (chapter 141, Laws 1835; 4 Edm. St. at Large, 455). The effect of the certificate as notice does not appear to have been a question in the case; the sole point considered in the prevailing opinion of Nelson, Oh. J., or of Bronson, J., concurring, being whether the note was void for usury. Cowen, J., however, adverted to the certificate, and held it valid on the ground that the act of 1833, chap. 271 (identical with § 923 of the Code), had been modified by the act of 1835. But the acts of 1833 and 1835 are in no sense inconsistent. They embrace different subjects, and have in view different objects. The act of 1833 constitutes the certificate a notice of dishonor. The act of 1835 does not touch or contemplate any certificate, but only provides that a notice of dishonor shall be sufficient if mailed “to the city or town where the person sought to be charged resided.” The latter statute provides for service of the notice; the.-former,- for proof of the service. They are wholly apart, and neither derogates from the effect of the other. It was an inadvertent and untenable ruling, therefore, to hold that the act of 1835, in any particular qualified the operation of the act of 1833. Similarly, when the case was in the court of errors (Ketchum v. Barber, 7 Hill, 444), no member of the many who discussed it considered the point of the sufficiency of the certificate,—the entire debate involving only the question of usury,—and the judgment was affirmed on the decision of that question alone. See note at end of report. It was unwarrantable, then, and misleading, to insert in the syllabus, as an adjudication of the court, that “ since the act of 1835 the certificate need not specify the reputed place of residence of the party notified, nor the postoffice nearest thereto.” At all events, by incorporating the statute of 1833 in the Code subsequently to tire statute of 1835, the legislature makes manifest its intention that the provision of the former enactment shall not be superseded by the latter.

Reversal of the judgment, however, may not be the necessary consequence of the imputed defect in the certificate. The certificate states the demand, and the non-payment, the protest, and the deposit in the postoffice of notice of protest, postage prepaid, addressed to the defendant, “Thos. Auld. New York.” Section 923 of the Code provides that: “The certificate * * * of the presentment * * * for payment or of the protest, for non-' acceptance or non-payment of a promissory note * * * or of the service of notice thereof * * * specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the postoffice nearest thereto, is presumptive evidence of the facts certified.”

The facts of presentment, non-payment, protest, service of notice and the mode of giving the notice, are all recited in the certificate, and the certificate is therefore presumptive evidence of “ the facts certified.” A writer of the highest authority says that the certificate “isevidence of such things as it distinctly states, and purports to give evidence of.” 2 Daniel, Neg. Inst. § 962. Assuming that the direction, “New York,” be a sufficient address, nothing is wanting to the completeness of the notice, except proof of the residence of the defendant in New York, and that prooof he himself supplied on the trial. It is objected, however, that the certificate is that the notice of protest was directed to “New York” simply, not New York city. The act of 1835 provides that the notice shall be sufficient “if directed to the city or town where the person sought to be charged resided.” Is it open to dispute or to doubt that a letter mailed at Tarrytown, in this state, addressed to “Thos. Auld, New York," would be understood by the postoffice authorities as intended for the city of New York, and be transmitted and delivered accordingly ? Common sense is to be consulted in the construction of statutes and of evidence ; ánd by this, the surest and safest of all guides, we are led to the conclusion that the unmistakable destination of a letter directed, in this state, simply to “ New York," is New York city.

Supposing the certificate wholly ineffectual as proof of notice of dishonor, the plaintiff gave other evidence of the fact; and the question is, was it sufficient? A duplicate copy of the_ notice was sent to the plaintiff, and in due time he essayed to mail it to the defendant. Had this copy been deposited in the postoffice to the defendant’s proper address, that would suffice as valid service of notice of dishonor. Gawtry v. Doane, 51 N. Y. 84, 90; Manchester v. Van Brunt, 50 St. Rep. 588; 22 N. Y. Supp. 862. But it was not- deposited in the postoffice. It was deposited, said the plaintiff, “in a letter-box,—in a receptacle in our office for the receipt of letters to be mailed.” It was not traced into the mail, or the hands of a letter-carrier. This is the evidence : “ Q. Bo you know what became of this sealed envelope, postpaid, addressed to Mr. Auld, after it was deposited ? A. I know no more than what is the custom of the office. Q. Do you know what became of it ? A. I never saw it afterwards.”

In Mechanics & T. Bank v. Crow, 5 Daly, 191; affirmed, 60 N. Y. 85, we held that a deposit in a lamp-post box provided by the government, is a deposit in the postoffice. So, in Wynen v. Schappert, 6 Daly, 588, we adjudged a delivery to an official letter-carrier to be a deposit in the postoffice. But to rule that the placing a protest in a private receptacle in a private office, without further evidence of its fate, is equivalent to a deposit in the postoffice, would strain the sense of the statute beyond all reason, and substitute a constructive notice of dishonor, for which the law affords no sanction.

Our conclusion is that the notarial certificate authorizes the inference that the notice of dishonor was duly deposited in the post-office, and was directed to the defendant at the city of his residence. But the proof is presumptive only, and as such was open to rebuttal. Accordingly, the defendant offered to show that he never received the notice, but the evidence was rejected. The ruling was error. The fact that the notice was not received surely tends to the conclusion that the notice was not duly mailed to the defendant at his postoffice. Were it the fact that the notice, directed to the proper postoffice, had been deposited in the mail, evidence of its nonreceipt would be immaterial. Gawtry v. Doane, supra; Arnold v. Rock River V. U. R. R. Co., 5 Duer, 207, 211. But the due posting and direction of the notice rests only upon presumptive proof, and evidence to the contrary was admissible.

The court erred, also, we incline to think, in directing a verdict. Even in the absence of proof to the contrary, it was probably still a question for the jury, on all the facts of the case, whether the notice had been received by the defendant. Dunn v. Devlin, 2 Daly, 122. However this may be, the error in the exclusion of evidence requires a reversal of the judgment.

Judgment reversed and hew trial ordered ; costs to abide event. All concur.


author: Daly, C. J.

text:
    Rachel Galantshik, Resp’t, v. Globe Fire Insurance Company of the City of New York, App’lt.

      {New York Common Pleas, General Term,

      Piled December 3, 1894.)

    1. Insurance—Life—Conditions.
    A mortgagee, to whom the policy is made payable, is chargeable with the knowledge of her agent as to facts whmli she is bound to communicate to the insurer, and is liable for a failure to notify the compauy thereof.

      2. Same—Effect of void policy.
    A policy, which becomes void by its own terms, constitutes i o' insurance upon the premises and ceases to effect the question of the liability of another company under a clause for proportionate payment.
    Appeal from a judgment entered on a verdict directed by the court for plaintiff.

      Lemuel Skidmore, for app’lt; Jacob Manheim, for resp’t.
   Daly, C. J.

The plaintiff recovered upon a policy of fire insurance for $4,500, issued by defendant upon the premises 183 Clinton street. The recovery was $3,500, the full amount of the loss, notwithstanding the contention of defendant that it was liable only for a proportional part of such loss under the following clause of the policy : “ This company shall not be liable under this policy for a greater proportion of any loss on the described property than the amount hereby insured shall bear to the whole insurance,'whether valid or not, or by solvent or insolvent assurers, covering such property.”

The sole question upon this appeal is whether there was other insurance covering the property, within the meaning of the clause. The policy was issued July 12,1893. The fire occurred July 27, 1893. The property had been purchased by the plaintiff and her husband from Mrs. Rinaldo June 29, 1893. On July 3,1893, the plaintiff received from her husband a conveyance of his interest. These conveyances were subject to a mortgage previously made by-Mrs. Rinaldo to Mrs. Strong. The former owner, Mrs. Rinaldo, had taken out two policies of fire insurance upon the property,— one for $3,000, on May 12, 1892, in the New York Bowery Fire Insurance Company; and one for $12,000, on January 9, 1893, in the Broadway Insurance Company. By the mortgagee clause attached to the policy the loss was payable to Mrs. Strong as mortgagee. This clause provided that the insurance as to the interest of the mortgagee should not be invalidated by any change in the or ownership of the property, provided that the mortgagee should notify the company of any change of ownership which should come to her knowledge.

It is contended by the plaintiff that, at the time she took out her policy in the defendant company, the previous policies taken out by Mrs. Rinaldo had become void, for failure to notify the company of the change of ownership when the title was conveyed by Mrs. Rinaldo to the plaintiff, and that there was therefore no insurance covering the property at the time of the fire, except that effected by the defendant’s policy. The contention of the defendant is that, while the failure to notify the change of ownership invalidated the policies, they were nevertheless, within the terms of the clause for proportionate payment, which embraces invalid as well as valid insurance; that the policies were not absolutely void, but voidable only at the option of the companies, and that nothing was done by the companies to signify their election to avoid the policies until after the fire. It is, moreover, contended by de. fendant that the policies remained in force so far as Mrs. Strong the mortgagee, was concerned, because she did not have knowl. edge of the change of ownership within the terms of the mortgage clause. The mortgagee did not have personal notice of the change of ownership of the mortgaged premises, but it appeared that she left the whole business of her insurance in the hands of her attorney, who was her agent to look after it; that she was not even aware of what insurance he effected; and that he acted in respect thereto in his discretion, without notice to or consultation with her; and it appeared conclusively that notice of the transfer of title was given to him, and the policies left with him to make the necessary transfers at the offices of the insurance companies, which, however, was omitted through the neglect of a clerk. Under the circumstances, we are bound |o hold that notice to her agent was notice to Mrs. Strong. Having intrusted to him the full authority to act as he deemed proper with respect to the business, he was constituted her agent to receive all necessary notices, as well as to act upon them, and therefore his knowledge is to be deemed her knowledge. The mortgagee, having therefore had notice of the change of ownership, was' bound to notify the companies, and her failure to do so made their policies void in her hands. Appellant now claims that there is no proof that the companies were not notified; but this point is taken for the first time on appeal, no objection on that score having been made by the court below. If it had been, it might have been obviated by proof.

It seems to have been assumed that the only question of fact was whether the mortgagee (not the company) had notice of the change of ownership. By the terms of the policies, they became void if a change of title, interest, or possession of the property occurred otherwise than by the death of the insured. By the mortgagee clause, it was provided that the policies should not be invalidated by that cause, provided the mortgagee should notify the company of any change coming to her knowledge; otherwise the policy should become null and void. By failing to give the notice required, the policy became absolutely void. The company could restore it, and waive the forfeiture, Sherman v. Niagara Fire Ins. Co., 46 N. Y. 526; but there is not the slightest evidence that they did so, and there was not, therefore, from the time of such failure to give them notice, any insurance whatever by those policies, for they had become void by their own terms, not voidable at the election of the company. Policies becoming void by their own terms constitute no insurance upon the premises, and cease to affect the question of the liability of another company under the clause for proportionate payment. Hand v. Williamsburgh City Fire Ins. Co., 57 N. Y. 41. As was said in that case, the assured .was under no obligation to keep the policies in force for the benefit of the defendant. She could have canceled them at any time, and have recovered the whole amount upon defendant’s policy; and no other consequence resulted from her default in giving notice and permitting them to become void. There are no exceptions to be considered in this view of the case. As we have held that the knowledge of the mortgagee’s agent was knowledge of the mortgagee, there was no question on that point to submit to the jury, because Mrs. Strong’s attorney admitted such, knowledge.

The judgment should be affirmed, with costs.

All concur.


text:
    William J. Johnston et al., App’lts, v. Thomas Commerford Martin, Resp’t.

      (New York Oommon Pleas, General Term,

      Piled December 3, 1894.)

    Appeal—Consent.
    An appeal does not lie from a judgment entered by consent.
    Appeal from á judgment entered on the report of a referee.

      Thomas J. Kdgharn, for app’lt; Masten & Nichols, for resp’t.
   Pryor, J.

The defendant engaged to resell to the plaintiffs 20’ shares of corporate stock at a price to be agreed upon between the parties, or, should they fail so to agree, then at a price to be fixed by arbitration. The plaintiffs duly asserted their right to a repurchase of the stock under the contract, and on failure of the parties to agree upon the price, and refusal of the defendant to arbitrate this action was brought. The prayer of the complaint is “ for judgment against the defendant, that it may be adjudged and decreed that the plaintiffs have the right and privilege, if they see fit to exercise the same, of purchasing the said twenty shares of stock from the defendant at a price to be fixed by the court, and that the court may fix such price for the same as it. deems fair and reasonable,” and for “ other and further relief.” The case was referred, by consent, as we gather, to be heard and determined, and by stipulation “ the only issue to be tried is as to-the value of the stock.”

It will be observed that the action is neither for breach of the contract to resell, nor for breach of the contract to arbitrate, but is rather for specific performance of the two contracts,—the court, being substituted as arbitrator of the price,—and this, too, contrary to the fundamental principle which denies to equity juris diction for specific performance of an agreement for arbitration. Nettleton v. Gridley, 56 Am. Dec. 383. It will be noticed, further,, that to enforoe^specific performance of the contract to resell would be in violation of the right the plaintiffs assert, namely, an option whether or not to repurchase at the price fixed by the court. And, after all, when the court has heard the cause, and has ascertained the value of the stock, the plaintiffs may make nugatory its action by refusal to repurchase at the price determined. The-court is to do nothing more than fix what it “ deems the fair and reasonable ” price of the stock. Has a court jurisdiction—is it its duty—to act ás mere umpire of a question, for solving which the parties have provided the expedient of arbitration? Should the court entertain the anomalous suit, and fix the price, the plaintiffs may not regard it as “fair and reasonable,"—in fact, they do not go regard it,—and, in the exercise of their option, may reject the' award, as in fact they do reject it. Even as an arbitration, the submission is futile. So much for the case as it appears upon the pleadings and the stipulated issue.

But by another stipulation the plaintiffs “ agree to purchase and take back the twenty shares of stock now held by the defendant, at such valuation as may be determined upon by the judgment in this action, and defendant will promptly deliver the same on payment of such price. Judgment to that effect may be rendered bjr the referee.” Accordingly, the judgment rendered by the referee does ñx the price, and does require the defendant to resell and the plaintiffs to repurchase the stock at the price fixed, namely, $350 a share. Is it possible for the plaintiffs to appeal from the judgment? The referee was to fix such price as he “deemsafair and reasonable valuation." Virtually, an award upon arbitration. Reizenstein v. Hahn, 12 S. E. 43. The plaintiffs have stipulated to perform it; that .is, the “judgment rendered by the referee,” and not the ultimate judgment of this general term, or of the court of appeals. In the complaint they allege that they are entitled to have the price fixed by the decision or judgment of this court, so that they may purchase said stock.” Nay, more; by express stipulation, of record, the plaintiffs consented to the judgment, and authorized its rendition by the referee; that is, a judgment for the repurchase' of the stock “ at such valuation as may be determined ” by the referee. The judgment rendered is exactly the judgment demanded by the complaint, and consented to by the stipulation. Surely, a right of appeal does not survive entry of judgment by consent, and the exhaustion of the jurisdiction in the contemplation of the parties. Hooper v. Beecher, 109 N. Y. 610; 14 St. Rep. 16. If otherwise, however, and assuming the judgment rightly before us for review, we are content to affirm it on the clear, concise, add cogent argument of the learned referee. Examining the record, we perceive no prejudicial error pointed out by exception. Judgment affirmed, with costs.

All concur.


author: Peb Cubiam.

text:
    John Sullivan, Resp’t, v. William Brooks et al., App’lts.

      (New TorTc Common Pleas, General Term,

      Wiled November 13, 1894.)

    1. Appeal—First instance.
    An objection that the verdict is without evidence cannot be raised on appeal, where the defendant did not move to dismiss or for direction of a verdict, or object to.the submission of the case to the jury.
    3. same—Waiver.
    A failure to move for a dismissal at the close of the whole case waives an exception to the denial of a motion to dismiss at the close of the plaintiff’s case.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff.

      Alex. Thain, for app’lts ; Edwin Q. Davis, for resp’t.
   Peb Cubiam.

We find that there was no motion by defendants to dismiss the complaint at the close of the case. A failure to make such a motion or ask for a direction of a verdict, and failing to object to the submission of the case to the jury, is a concession that there is evidence tending to prove the facts alleged, and is a consent to the decision of the question by the jury, and precludes the defeated party taking the position upon appeal that the verdict is without evidence, and therefore against law. Barrett v. Third Ave. Railroad Co., 45 N. Y. 628, 632. Nor can the appellants, in view of the failure to make such a motion at the close of the whole case, bring up the questions involved under their exception to the denial of their motion to dismiss at the close of the plaintiff’s case. A defendant who proceed to introduce testimony after denial of his motion for a nonsuit at the close of plaintiff’s evidence in chief thereby waives his exception to that denial. He has an undoubted right to stand upon his motion for a nonsuit, “but he has no right to insist upon his exception after having subsequently put in his testimony and made his ■case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link; and, if not, he may prove to take the case from the jury upon the conclusion of the entire testimony,” —-citing cases. Bogk v. Gassert, 149 U. S. 17-23. Followed in Wilson v. Live-Stock Co., 153 U. S. 39.

Judgment affirmed.


author: O’Brieit, J.

text:
    Gustavus A. Waeber et al., App’lts, v. Gabriel Talbot et al., Resp’ts.

      Supreme Court, General Term, Mrst Department,

      Mled November 16, 1894.)

    Attachment—Undertaking—Amount or.
    The court is not bound to increase the amount of an undertaking to discharge an attachment, which is for the total amount claimed by plaintiff, in the absence of proof that plaintiff will be prejudiced by such refusal.
    Appeal from an order denying a motion to vacate an attachment.

      F. de L. Smith, for app’lts ; Robert C. Taylor, for resp’ts
   O’Brieit, J.

An undertaking given to discharge a warrant of attachment was sought to be set aside npon the ground that the sum stated in the undertaking was not sufficient to protect the interests of the plaintiffs, under the provisions of § 688 of the Code of Civil Procedure. This section provids that the undertaking shall be, in effect, “that he will on demand pay to the plaintiff the amount of any judgment which may be recovered in the ° action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be, at léast, equal to the amount of plaintiff’s demand.” The complaint and affidavits on attachment are not a part of the printed papers on appeal, and there is force, therefore, in the suggestion that the appeal should be dismissed, because there is not sufficient before the court to determine whether or not the undertaking as filed conforms to the statute. The only paper upon which the plaintiffs moved below was an affidavit stating that the under taking “is limited by the amount $3,032, which is the sum demanded in the complaint, exclusive of interest, together with the costs and expenses.” Upon the motion below, the defendants called attention to the fact that, through inadvertence, the undertaking wras less than the amount demanded by 50 cents principal, and a few days’ interest. Although this is urged upon the appeal, it was not upon the motion below; and, there being no contradiction of the statement that plaintiffs said that they would not object to the undertaking upon the ground.of such error, they are not in a position to take that objection here.

Upon the merits, the undertaking, being given for what was conceded by the parties to be the principal and interest, together with the costs and expenses, was sufficient; and though it was in the power of the court, as stated in the opinion below, to increase the amount, the court was not bound to do so,. in the absence of any fact showing that the plaintiffs would be prejudiced by such refusal. All that they are entitled to get is the amount of their demand, with interest and costs and expenses, and these are secured by the undertaking given.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.'


author: Follett, J.

text:
    James Stoddard, Resp’t, v. John McAuliffe et al., App’lts.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Betting and Gaming—Wager.
    A deposit by two persons, who are about to engage in a boxing contest, to form a purse for the winner, is a bet or wager.
    Appeal from a judgment entered on a verdict, directed by the court in favor of plaintiff.

      Daniel P. Mahony, for app’lts; George S. Hastings, for resp’t
   Follett, J.

This action was begun in November, 1891, against Richard K. Fox, to recover $1,500 deposited by plaintiff with him as a stakeholder. On the 10th of December, 1891, Fox paid the amount in his hands into court, and John McAuliffe and Jeremiah Mahony, the present defendants, who claimed to be entitled to the sum, were substituted as defendants in the place of Fox. No question is raised over the validity of the substitution. In 1891 a prize 'fight or a boxing match was arranged to take place in September of that year, at the Granite Club, at Hoboken, N. J., between Austin Gibbons and John Mc-Anliffe. The plaintiff swears that a prize fight was to be fought, the terms of which were stated in a written argreement signed by the fighters, while the defendants’ witnesses swear that the two men were simply to contest for a purse or prize. !but it is quite indifferent to the statute relating to betting and gaming whether the contest was a prize fight, or a contest to determine which was the superior boxer. All agree that the plaintiff deposited in the hands of Fox $1,500, which belonged to him, and that the defendant Jeremiah Mahoney deposited a like sum, which belonged to him, with Fox. It is also agreed by the witnesses that in case McAuliffe whipped Gibbons the money must be paid to' McAuliffe, and in case Gibbons whipped McAuliffe the money was to be paid to Gibbons. The witnesses on both sides testified that a written agreement was signed by Gibbons and McAuliffe, fixing the terms of the contest or fight. This agreement was drawn, and left with William E. Harding, one of the defendants' witnesses; but it was not produced on the trial, on the plea that it could not be found. The plaintiff testified that it was provided in this agreement that the fight was to be for $3,000—$1,500 on a side. The draughtsman and depositary of the agreement, called by .the defendants, testified: “I don’t think this agreement contained the provision that this contest should be for the sum of $1,500 a side. I can’t swear that it did not.”

Dunn, who was the official referee and manager of the fight, was called as a witness by the defendants, and testified: “ The prize put up by the club was $4,000. We exacted from each side, for their appearance on the occasion, and their faithful training up to that time, that they put $3,000 between them—$1,500 each. Each man was to put up $1,500."

McAuliffe, one of the defendants, testified : “ Mr. Fox was the stakeholder. Some friend of mine put up $1,500 for me. Fifteen hundred dollars was put up on the other side. I claim the money put up by Stoddard because it belonged to the purse agreement. I claim it as mine. There was no knockout. It was a point of boxing, and was decided the best man won. The referee was chosen mutually between us two. It was Mr. Dunn, and I was given the decision on points. I did not knock him down on that occasion. I am very sorry. I hit him a number of time—fifty times. The police asked us to stop the contest. They said it was finished, and I stopped. They told me to stop. The decision was awarded after they told us to stop, and I had won the contest.”

The police interfered and stopped the fight, but the referee decided that McAuliffe had won. It is useless to attempt to disguise the transaction, which was a bet or wager, within the definition of the statute, under which this plaintiff has a right to recover the sum, and the verdict was properly directed. The judgment should be affirmed, with costs.

All concur.


text:
    Marie Schutz, Resp’t, v. Joseph Morette, as Executor, etc., App’lt.

      (Supreme Court, General Jerm, First Depan'tment,

      Filed November 16, 1894.)

    1 Executoes, etc.—Accouxt stated.
    The settlement or statement of an account or liability is sufficient to authorize a judgment against an executor in his representative capacity, in an action in which "the plaintiff claims to recover on an “account stated.”

      2. Same—Proof.
    Proof held competent to establish such settlement or statement.
    3. Pleading—Demurrer.
    Where the facts alleged in the complaint are sufficient to authorize a finding that the executor settled, or should be held to have settled or to have adjusted, the claim, the complaint will not be held to be bad on demurrer on the ground that it does not state facts sufficient to constitute a cause of action.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      John 8. Davenport, for app’lt; J. George Flammer, for resp’t.
   Follett, J.

An executor has power to settle an account or liability which it is claimed was incurred by his testator. If it be established that he has settled or stated such an account, it is sufficient to authorize a judgment against him in his representative capacity, in an action in which the plaintiff claims to recover on an “ account stated.” The fact that the executor has settled such an account or liability may be established by proof of an express promise on his part, by acts on his part and on the part of the plaintiff from which the law irrebuttably presumes an express promise, or by acts on the part of both from which the tribunal determining the issue of _ fact properly infers the existence of such a promise. The foregoing proposition are too well settled by authority and founded in reason to require the support of many authorities. Lambert v. Craft, 98 N. Y. 342; Magee v. Vedder, 6 Barb. 352; 3 Williams, Ex’rs, (6th Am. Ed.) 1772, 1940, and cases cited. The fact that a settlement by an executor of an account or claim is not binding on the heirs, next of kin, devisees, and legatees of a decedent lends no support to the proposition that the executor is not bound, and may dispute the claim.

A complaint will not be held bad on demurrer which is based on the ground “ that the complaint does not set forth sufficient facts to constitute a cause of action,” if the facts alleged (being admitted and unexplained by the demurrer) are süch as authorize the inference of a liability of the defendant, or in the case at bar, if the facts alleged are sufficient to authorize a finding that defendant settled, or should be held to have settled or to have adjusted, the claim. This action was begun April 17, 1894, by the service of a summons, and by a complaint, verified April 11, 1894, in which it is alleged that November 18, 1892, the plaintiff delivered to the defendant a verified statement of her claim against the defendant’s testatrix, a copy of which is set out in the complaint. If the statements contained in the verified claim are true, the testatrix, at the time of her death, was indebted to the plaintiff in the sum of $1,000. The claim is for personal services rendered by the plaintiff for the testatrix during some years, immediately proceeding her death. It is alleged, as before stated, that the claim is presented November 18,1892, nearly 17 months before this action was begun, during which time, it is also alleged, “ said defendant has had a reasonable opportunity for examination into the validity and fairness of the claim so presented. He has not disputed or rejected the same, and refuses to pay the sum, or any part thereof." This unexplained delay on the part of the defendant to take any action in respect to the claim is sufficient to authorize the inference that it .has been accepted by him as a liability of the estate, within the rule laid down in Lambert v. Craft, supra, the facts of which are more fully reported in 7 Civ. Pro. Eep. 364. _In that case the verified claim was presented June 1, 1863, and on the 30th of the same month proceedings were begun in the surrogate’s court requiring .the executor to show cause why he should not pay the claim: These facts being shown, and the further fact that the executor had taken no action whatever in respect to the claim, the surrogate’s court inferred the liability, and decreed payment, which adjudication was affirmed at general term (32 Hun, 466), and by the court of appeals (96 N. Y. 342). We think that, under the case last cited, the court would be authorized to infer from the unexplained facts alleged in the complaint that the defendant had acknowledged the liability of the estate for the claim presented. On the trial of this case, facts may be shown which will authorize the trial court to find that the defendant, under the circ umstances, ought not to be held to have conceded the liability of the estate for the plaintiff’s claim. The facts alleged are now admitted ; and although the defendant may be unable to deny them in his answer, or to disprove them on the trial, he may be able to give evidence of such explanatory facts as will leave the issue whether the defendant has settled the claim an open one for the determination of the tribunal before which the action shall be tried.

The interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer, upon the payment of costs.


author: O’Brien, J.

text:
    Emma Keller, Resp’t, v. Henry Feldman, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Former adjudication—Subject matter.
    A judgment for the purchase money, in an action to rescind a sale, is a har to an action to recover the possession of a bank hook, given to the vendor to secure such purchase money.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.

      John Henry Hull, for app’lt; Geo. F. Langbein, for resp’t.
   O’Brien, J.

In this action it was sought to replevy two savings bank books which had been given by plaintiff to defendant to secure to him the payment of $403.14. This amount was part of the consideration of the purchase of premises by plaintiff from defendant. Subsequently, plaintiff brought another, action to rescind the contract for such purchase, and to recover the whole purchase money, and succeeded. It thus appears that in the second action, which was the first tried, the plaintiff obtained a judgment for the entire purchase money, including the sum covered by the bank books, and, in addition, has another judgment in this action for an amount of money which was included in the first judgment. The question presented is, can the plaintiff recover double for the same indebtedness ? This is an action in rem to recover possession of the bank books, which called for $132.34, together with the accrued interest on $521.14, over and above the amount for which the appellant held the books. The latter could not draw the amount of money for which the books were delivered to him as security, for the reason that payment was stopped thereon by notice to the banks. Upon the trial the record in the equity action to rescind was introduced by the plaintiff herself, and it was made to appear that she succeeded, not only in having the contract rescinded, but in obtaining a judgment for the money she had paid to the defendant, including the amount represented by the bank books.

There can be no question that upon such judgment being recovered, had the defendant served a supplemental answer setting forth the fact of such recovery, it would be a bar to this action, unless upon the trial the plaintiff consented to permit the defendant to draw the $403.14 for which she had obtained judgment against him. It might be that such former judgment, if not pleaded, would not be admissible; but, having been introduced by the plaintiff herself, we must give effect to the settled law that “ the judgment of a court of concurrent jurisdiction directly upon a point is conclusive between the same parties upon the same matter coming directly in question in another suit; and this, whether it be pleaded or given in evidence under the general issue.” Gardner v. Buckbee, 3 Cow. 120. In the demand and application for judgment in the equity action, the plaintiff might have included only the moneys actually paid by her, and left out the amount represented by the bank books; but having elected to sue for the entire consideration, and treated the money represented by the bank books as actually paid, and having got a judgment against the defendant for an amount which included the moneys represented by the bank books, she was not entitled to have a judgment in addition for the whole sum in the banks.

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

All concur.


text:
    William Murray, App’lt, v. Rebecca Babbitt, Resp’t. Same, App’lt, v. Gast Lithographic and Engraving Company, Resp’t.

      (New York Common P^eas, General Term,

      Wiled December 3, 1894.)

    Appeal—Exceptions.
    An exception to a group of conclusions of law is untenable, if any one is correct.

      Appeal from a judgment for defendant in each case.

      Benjamin B. Foster, for app’lt; William B. Ellison, for resp’ts_
   Pryor, J.

Upon the trial by the court of actions in equity for injunctive relief and damages, the decision was for the defendants ; and findings of fact and conclusions of law were duly filed, pursuant to the then prevalent practice. To the findings of fact no exception was taken, nor was any request made for other or different findings. But to the conclusions of law, in both cases, the appellant filed an exception as follows : “ The plaintiff excepts to each and all of the conclusions of law filed herein.” The conclusions of law against which the exception is so directed were five in number, and they involved more than a single proposition. The question is, does such an exception present any point for review? We are constrained by imperative authority to hold the exception ineffectual to raise any question of error or revision. As the case does not purport to contain all the evidence, the findings of fact are not for review. Porter v. Smith, 107 N. Y. 531; 12 St. Rep. 479. Indeed, it is apparent, beyond doubt, that the appellant challenges only the conclusions of law. Moores v. Townshend, 102 N. Y. 387; 2 St. Rep. 441. Still, to present the point of error in legal conclusions, due exception must be entered of record, Roberts v. Tobias, 120 N. Y. 1; 30 St Rep. 189; Thompson v. Hazard, 120 N. Y. 634; 30 St. Rep. 653; and that the exception in question is nugatory is not a disputable proposition. In Ward v. Craig, 87 N. Y. 550, 553, the exception was “ to the conclusions of law, and to each and every thereof.” Held insufficient and of no avail. In Riley v. Sexton, 32 Hun, 245, an exception “to each of the findings of law ” was adjudged of no effect. Acc.: Wheeler v. Billings, 38 N. Y. 263; Newell v. Doty, 33 id. 83; Thompson v. Hazard, 120 id. 634; 30 St. Rep. 653; Bosley v. National Mach. Co., 123 N. Y. 550, 558; 34 St. Rep. 277; Moyer v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 351, 355; Turner v. Weston, 133 id. 650; 45 St. Rep. 301; Huerzeler v. Central C. T. R. R. Co., 139 N. Y. 490, 493; 54 St. Rep. 863. Supposing the exceptions before us effectual, if all the conclusions against which it is leveled be erroneous (Riley v. Sexton, supra), still the validity of the third, namely, that an unconditional gift passes the property, is obviously unquestionable. The rule is too familiar to require or to justify citation of authority in its support, that an exception to a group of propositions is untenable if any one be correct The conclusion is that we are precluded from review of the very interesting questions which the learned counsel for the appellant submits to •our consideration.

Judgments affirmed, with costs. All concur.


text:
    Mt. Morris Bank, Resp’t, v. Robert C. Lawson, App’lt.

      (New Yorh Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Appeal—Direction op verdict.
    The appellant is entitled, on an appeal from a judgment on a verdict directed by the court, to the benefit of every fact which the jury could have found.

      2 Bills and notes—Alteration.
    An unauthorized and fraudulent alteration of a negotiable note by an indorsee avoids it in the hands of a bona fide holder for value, as against the maker.
    3. Same—Original consideration.
    Such holder cannot, in the absence of an assignment, maintain an action for the original consideration of the note.
    Appeal from a judgment of the city court, modifying a judgment in favor of plaintiff.

      Henry M. Goldfogle, for app’lt; Daniel Whitford, for resp’t.
   Pryor, J.

In an action on a negotiable promissory note against the maker, the plaintiff was a bona fide holder for the value; but the evidence sufficed to show that after execution, and before transfer to the plaintiff, the note had been fraudulently altered by an intermediate indorsee, in the unauthorized interpolation of the words “ with interest.” The court directed a verdict for the plaintiff. On appeal the general term of the court below deducted interest from the recovery, and affirmed the judgment as thus modified ; and this without proof of an assignment of the original consideration of the note to the plaintiff.

In contesting the correctness of the ruling in the direction of a verdict, the defeated party is entitled to the benefit of every fact in his favor which the jury were authorized to infer from the evidence. We are to assume, therefore, that the note was fraudulently altered by an indorsee in a material respect, without the consent and to the prejudice of defendant, the maker. Upon what principle, then, is it possible for the judgment to stand ? The ground upon which such an alteration is held to discharge the maker is that the identity of the note is destroyed, and the promise attempted to be enforced not his obligation. Gardner v. Walsh, 5 El. & Bl. 83. The reason of the rule, therefore, involves the corollary that an unjustifiable alteration of a contract, avoids it, even though the modification be in ease of the obligor. Gardner v. Walsh, supra; Sanderson v. Symonds, 1 Brod. & B. 426; Brown v. Straw, 6 Neb. 537; Bowers v. Briggs, 20 Ind. 139; McVean v. Scott, 46 Barb. 379. Another obvious and inevitable consequence is that, since the altered note is not the promise of the defendant, it cannot be enforced against him even by a bona fide holder for value. One may not be bound by a contract which he neither made himself, nor authorized auothér to make for him.' The plaintiff is not holder of the note made by the defendant, but of another and different note. That the defendant is not responsible on the note ,to the plaintiff, besides being a necessary deduction of reason, is ¡settled by adjudication. Benedicl v. Cowden, 49 N. Y. 396; McGrath v. Clark, 56 N. Y. 34; Nazro v. Fuller, 24 Wend. 374; Conable v. Smith, 61 Hun, 185; 40 St. Rep. 577; and cases collected in note to Woodward v. Bank, 10 Am. Dec. 267. Indeed, the point has been expressly ruled by the court which now decides otherwise. Flannagan v. Nat. Union Bank, 18 St. Rep. 826; 2 N. Y. Supp. 488. The authorities adduced by the court below are altogether foreign to the question in dispute.

Conceding the unauthorized alteration of the note, the court below, at general term, rejected the interpolated words, and affirmed the judgment, with a deduction of interest. But how so? The note as made by the defendant, being canceled by the fraudulent alteration, was incapable of enforcement. Gardner v. Walsh, 5 El. & Bl. 82, and citations supra. And were the action for the consideration independent of the note, such consideration not having been assigned to the plaintiff, recovery would be impossible. Meyer v. Huneke, 55 N. Y. 412; Booth v. Powers, 56 N. Y. 22, 31; Kennedy v. Crandell, 3 Lans. 1; Clute v. Small, 17 Wend. 238, 240. Beyond doubt, the court erred in directing a verdict for the plaintiff. McGrath v. Clark, 56 N. Y. 34. Judgment reversed, and new trial ordered; costs to abide the event.

All concur.


text:
    De Witt Curtis, Resp’t, v. J. Charles Moore et al., App’lts.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)

    1. Mortgage—Merger—Assignment.
    A conveyance by the mortgagor to the mortgagee does not effect a merger as against a prior assignee of the mortgage.
    2. Same—Record.
    The record of an assignment is not necessary to protect the assignee as against a purchaser of the mortgaged premises.
    Appeal from a judgment in favor of plaintiff.

      Hurnin & Hendrick, for app’lts; Robert L. Harrison, for resp’t.
   Pryor, J.

In a suit for foreclosure, these are the facts: On the 19th of October, 1885, Edward S. Curtis conveyed the property to Armstrong, who gave back a mortgage as security for a note of $2,000. The mortgage was recorded November 24,1885. On the 29th of March, 1886, Curtis assigned the note and mortgage to the plaintiff as security for a loan of $500. Kellogg v. Smith, 26 N. Y. 18, 20. On the 20th day of May, 1886, Curtis gut another $500 from plaintiff on the same security, and on the 25th of August, 1886, still another $500. On the 7th of February, 1887, Armstrong conveyed the property to Curtis by deed recorded 5th March, 1887; and on February 23, 1891, Curtis conveyed to defendant Moore by deed recorded April 11, 1891.

"For reversal of the judgment of foreclosure, Moore urges two defenses to the action—First, that he isa bona fide purchaser without notice; and, secondly, that the reconveyance to Curtis operated a merger of the mortgage. Neither position is tenable. The record of the mortgage was of itself notice to the purchaser, and' the omission to record the assignment to plaintiff was available only in behalf of a subsequent assignee of the mortgage. In whosesoever hands, the mortgage, without record of its assignment, was valid and effectual against a purchaser of the premises. Nor was there any merger of the mortgage, for the obvious and sufficient reason that the two estates were never united in the same person. Before the reconveyance to Curtis, he had already transferred his mortgage interest to the plaintiff. Upon both of these propositions, Purdy v. Huntington, 42 N. Y. 334, and Miller v. Lindsey, 19 Hun, 207, are explicit and conclusive "adjudications. Argument in support of a point adjudged by the highest authority would be an impertinence.

The appellant affirms error of the refusal by the referee to admit evidence of the deed of Armstrong to Curtis, and of the agreement between them. Obviously, such deed and agreement could be of no effect upon plaintiff’s right. What signifies it that, as between Armstrong and Curtis, the former had no beneficial interest in the property ? The plaintiff, at all events, will be protected in a mortgage executed by the trustee, and assigned for value by the cestui que trust. So, too, in rejecting the judgment roll in" Haskell v. Curtis, the referee was clearly in the right, for in no aspect was that record competent or material evidence against the. plaintiff. The defendant Moore took the conveyance from Curtis with legal notice of the mortgage on the property, and without inquiry whether the lien had been extinguished, or was still outstanding in the hands of an assignee. As against the plaintiff, a bona fide transferee for value of the mortgage, he plainly has no defense to its foreclosure. The case was wéll decided by the learned referee, and the judgment is affirmed, with costs.

All concur.


text:
    Alfred W. Law, App’lt, v. Frank R. Pemberton, Resp’t.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)

    1. Lease—Agreement for.
    An action for breach of an agreement for a lease cannot be maintained, unless the lease, in all its terms, was agreed upon, and nothing left indefi-' nite, to be fixed only when the lease should be prepared.
    2. Same.
    Nor, if it appears that the oral agreement, however precise and complete, was not to be binding on the parties until embodied in a formal, written lease.
    3. Appeal—Exceptions.
    _ To show error for reversal by the common pleas of a judgment of the city court, the exceptions must present the specific point for review.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict directed for defendant at trial term.

      Willis B. Dowd, for app’lt; Franh Sullivan Smith, for resp’t.
   Pryor, J.

We cannot concur in the conclusion of the court below that the action is for rent, eo nomine, accruing by virtue of a lease. True, the complaint says the plaintiff “leased” the premises, but the word is not decisive against a mere executory contract for a lease; and upon the entire pleading it is manifest, beyond doubt, that the action is to recover damages for breach of an agreement to demise. The complaint alleges “ the refusal of the defendant to occupy and use said apartment,” the “expenditure occasioned by the breach of said contract,” and the difference between the contract price and the rental value, “ making plaintiff’s damages," in all, $608.36,” for which sum—not the stipulated rent — judgment is demanded. Such, too, was the defendant’s understanding of the action, for in his answer he “ alleges that no agreement for the lease was ever concluded between the plaintiff and defendant.” Upon the issue thus raised, the point for adjudication is whether the evidence shows a consummate, obligatory contract for a lease. In Sourwine v. Truscott, 17 Hun, 432, 434, ■—an action identical with the present,—a judgment for the plaintiff was reversed for refusal of the court to charge the proposition “ that there was no agreement to give a lease if there were any essential matters, affecting the rights of the parties, left open for further consideration.” And the court, per Talcott (a jurist of eminent authority), states “ the legal proposition, as an undeniable truism,” that: “ If there had been no agreement made as to all the particulars of the lease that was to be given,—if the minds of the parties had not met as to all these particulars,—there was no agreement on which an action would lie. Unless the lease, in all its terms, was agreed upon, then there was no binding contract that could be enforced in law. If any of the conditions to be contained in the lease were left indefinite, and to be fixed only when the lease should be prepared, the was no such contract as was binding on the parties at law; whatever may have been the probability that the parties would not ultimately disagree upon the form of the lease, or however important to the lessee the stipulation omitted to be specified might be regarded.” Fullerton v. Dalton, 58 Barb. 236.

Nay, more: “ If the parties agree on terms, however precise, subject to the preparation and approval of a formal contract, the concurrence of their wills is suspended, and where nothing further •is done there is no contract.” Bish. Cont. § 319.

In the case at bar there was a stipulation for a formal, written lease, without execution of which by the defendant he “ would never had been permitted to occupy the premises.” No lease was ever executed.. Plaintiff’s agent, with whom the contract, if any, was made, testified that: “The leases were printed with blanks, and filled in. I imagine there were provisions in the lease that I did not talk over with the defendant. I did not show him a copy of the lease. I did not mention to him any of the provisions of the leases. There were many questions that were not discussed at all between us. There are many clauses in the leases which I do not carry in my mind.”

Upon plaintiff’s own evidence, the fact is clear of doubt or dispute that the contract was not to be binding on the.parties before execution of a written lease,—until such execution, the defendant would be denied entry,—and that the lease contained provisions to which not only did the defendant not consent, but of which he was not even apprised. The contract, being inchoate and incomplete, is incapable of sustaining an action.

From the principle of our decision, it follows that none of the exceptions are well taken, unless error be apparent in the direction of a verdict for the defendant, instead of simply nonsuiting the plaintiff. To show error for reversal by us of a judgment in the city court, the exceptions must present the specific point for review. The action miscarried for defect in plaintiff’s proof, and judgment for defendant was the necessary result. The exception is .merely to the direction of the verdict, and the plaintiff conveyed to the court no intimation that the proper judgment, if against him, was of nonsuit. Moreover, the plaintiff himself had already moved for a direction in his favor. Yet, again, the plaintiff made no suggestion that he might improve his case on another trial; and indeed, unless the only witness to the negotiation retracted his evidencé, a recovery by the plaintiff would still be impossible. True, a verdict by direction, precludes another action, and it should be precluded when it can be supported only by the prevarication of witnesses.

Judgment affirmed, with costs.

All concur.


author: Van Wyck. J.

text:
    Louise Reydell, App’lt, v. Adam Reydell, Resp’t.

      (Brooklyn City Court, General Term,

      Filed November 26, 1894.)

    Specific performance—When not granted.
    A vendor, who has owned the premises about a year and cannot tell, where there are two lines of record owners, which line was in possession before he acquired title, cannot enforce specific performance.
    Submission of controversy, without action, on agreed statement of facts.

      Jas. J. Philip, for pl’ff; E. Raymond, for def’t.
   Van Wyck. J.

This is a submission, under § 1279 of the Code of Civil Procedure, upon admitted facts, of the question as to whether specific performance of a contract of sale of real estate should be enforced in favor of plaintiff against the defendant. It seems from the agreed facts that the owner of certain premises, of which those in question herein were a part, mortgaged the same in 1851 for $2,000; that the mortgage was thereafter assigned, and the holder thereof, in 1863, foreclosed it, but failed to make the owner of the particular premises in question a party to the action, such premises having been conveyed by the mortgagor after the mortgage was given, but before the foreclosure suit was instituted; that under the foreclosure judgment the sheriff conveyed to the plaintiff the mortgaged premises, which included the premises to which the contract of sale herein relates. The grantee of the sheriff subsequently conveyed the premises to her. The plaintiff herein (the vendor) does not claim the premises under the chain of title made out through the mortgage sale under foreclosure. She claims under the chain of title from the owner to whom the mortgagor conveyed prior to the foreclosure action, and who was not a party to that action. The deed of the premises to plaintiff herein is dated April 12, 1893, and neither the plaintiff nor defendant has any knowledge or information as to who has had possession of the premises prior to that date, or has made claim to the same. Nothing before us shows whether the premises are improved, or even inclosed. It seems to us, from such circumstances, that the assumption is just as rational that one line of record owners has been in possession as the other. The mortgage, foreclosure sale, and inability of the vendor (plaintiff) to give any information as to which line of record owners have exercised ownership or been in possession, or claimed possession prior to April 12, 1893, leaves the title involved in so much mist, without further explanation or light, as to render it unmarketable. We think a vendor who has owned the premises about a year, where there are two lines of record owners, should not ask specific performance without informing himself somewhat about the title prior to his deed, and imparting such knowledge to the vendee. We cannot see how the Cowell proceedings, under Laws 1862, c(i. 365, § 1 (Rev. St., Banks’ 8th ed., p. 2481), can help the vendor, for the admission does not show that the petition filed gave jurisdiction, or what parties were required to show cause by the court.

We think the defendant should have judgment.

All concur.


author: Clement, C. J.

text:
    In the Matter of the Application of Matilda A. Popoff for a Writ of Mandamus.

      (Brooklyn City Court, General Term,

      Filed November, 1894.)

    1. Municipal corporation—Local improvements—Assessments.
    Under chap. 995 of 1888, the board of assessors have power to rectify an error in an assessment for a local improvement only in the cases prescribed.
    3; Same—Clerical error.
    A clerical error in an assessment-roll is an error of form, not an error of the assessors in levying the assessment, nor an error of law.
    8. Same—Mandamus.
    A mandamus will never issue to compel the performance of an act which the law prohibits.
    Application for a writ of mandamus.

      Sidney V. Lowell, for petitioner ; Albert 0. McDonald, for resp’t.
   Clement, C. J.

By § 10 of title 10 of the revised charter of this city (Laws 1888, p. 995), the board of assessors have power to rectify an error in an assessment for a local improvement only in five cases, and the facts now before us do not come under either of such cases. The error-of the assessors, if there was error, was not clerical, as in the case of People ex rel. Nostrand v. Wilson, 119 N. Y. 515; 30 St. Rep. 79, where a similar clause in the charter of 1873 was construed by the court of appeals. A clerical error in an assessment-roll is an error of form, not an error of the assessors in levying the assessment, nor an error of law. Matter of Hermance, 71 N. Y. 481. A mandamus will issue, in a proper case, to compel a public officer to perform his duty imposed by law, but it is never issued to compel the performance of an act which the law prohibits. It is clear that the assessors can only correct errors where the section of the charter before referred to permits, and not otherwise.

Order affirmed, with $10 costs and disbursements.


author: McAdam, J.

text:
    Helen W. Bacon, Resp’t, v. Sarah L. Heywood, App’lt.

      {New Yorh Superior Court, General Term,

      Filed January 7, 1895.)

    1. Bills and notes—Consideration.
    A person, who parts with valuable securities on the faith of notes and mortgage, is a holder thereof for value.
    2. Appeal—Findings.
    Findings, made at the request of the appellant, are conclusive against him on appeal.
    Appeal by defendant from judgment rendered in favor of plaintiff at equity term.

      W. FF. Hewetí, for app’lt; Welch & Daniels, for resp’t.
   McAdam, J.

The action was to foreclose a mortgage made by the defendant to the plaintiff to secure two promissory notes, one for $3,500, dated July 1, 1893, and payable one year after date, and the order, dated "the same day, to secure $5,000 two years after date ; both being drawn by the defendant to the order of the plaintiff.

The defendant in her pleading admitted the execution and delivery of the notes and mortgage in suit, but alleged that they were executed and delivered by her without consideration; and for a further defense, alleged facts tending to show that the plaintiff had imposed upon the defendant, and fraudulently and without consideration induced her to execute and deliver the notes and mortgage, aforesaid, and prayed, by way of affirmative judgment, that the same may be adjudged void and directed to be surrendered up and cancelled.

The trial judge at the request of the defendant, found : “That the two promissory notes and the mortgage given to secure the same were executed and delivered by the defendant to the plaintiff in substitution and exchange for three several promissory notes theretofore made by one Robert R. Heywood and C. H. G\ Haschmedt, and indorsed by her, for the aggregate sum of $8,500, payable to the order of and held by the plain tiffs, and which notes were not then due.” He also found upon like request, “That the surrender by the plaintiff to the defendant Sarah L. Heywood of the said three several promissory notes so indorsed by her, was the sole consideration for the notes and mortgage.”

The facts so found at defendant’s request show affirmatively that the plaintiff parted with valuable securities on the faith of the two notes and mortgage in suit, and thereby became a holder thereof for value within the meaning of the authorities. Youngs v. Lee, 12 N. Y. 551; Day v. Saunders, 1 Abb. Ct. of App. Decis., 495; Brown v. Leavitt, 31 N. Y. 113; Pratt v. Coman, 37 N. Y. 440; Park Bk. v. Watson, 42 N. Y. 490; Chrysler v. Renois, 43 N. Y. 309; Paddon v. Taylor, 44 N. Y. 371; Clothier v. Adriance, 51 N. Y. 322: Mechanics & F. Nat. Bank v. Crow, 60 N. Y. 85; Nickerson v. Ruger, 84 N. Y. 675.

We find nothing in the finding or evidence which militates against the rule stated or tends to render it inapplicable. The findings referred to having been at the request of the defendant are conclusive against her on this appeal East River Nat. Bank v. Gove 57 N. Y. 597.

It follows that the judgment appealed from must be affirmed, with costs.

Freedman, P. J., and Gtldersleeve, J., concur.


author: Me Adam, J.

text:
    Hannah L. Crossley, Resp’t, v. George W. Hojer, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Damages—Replevin.
    In replevin, the successful party can recover the possession of the property with interest on its value, and the amount of the depreciation thereof, as damages for its detention.
    2. Same.
    In the absence of proof that the damages are more or less than the interest on the value, the presumption is that they are the interest for the time the successful party was wrongfully deprived of the use.
    3. Same—Use.
    Where the property has a usable value, such value during the time of detention, if established, may be recovered.
    Appeal by defendant from judgment entered in favor of plaintiff on report of referee. ,

      Morris S. Wise, for app’lt; Howe & Hummel, for resp’t.
   Me Adam, J.

The action is in replevin to recover the possession of certain goods and chattels, with damages for their detention. There was no dispute as to the ownership of the property, for the defendant practically admitted that, and pleaded that before the commencement of the action he duly tendered unh> the plaintiff all the goods and chattels claimed by her to be her property. The contention narrowed down to the questions of unlawful detention, value, and amount of damages.

The defendant became possessed of the property, consisting of furniture, carpets, crockery, glassware, mirrors, curtains, cornices, silverware, and other articles enumerated in a schedule thereof, under an agreement made with the plaintiff, December 21, 1885, by which she sold, on what is called the instalment plan, all the furniture contained in the Abbotsford Hotel, in the city of New York, for the sum of $10,000, which was to be paid in monthly instalments of $200 per month, and after the whole sum of •' $10,000 had been paid plaintiff agreed to execute a valid and absolute bill of sale of the property, until which time the title was to remain in and with the plaintiff.

On December 22, 1886, one year after the making of the above contract, a new agreement was entered into between the parties, by which the first agreement was abrogated, and the furniture merely leased to the defendant until May 1, 1888, at the monthly rent of $100 per month. In this agreement the defendant agreed “ to deliver over to the plaintiff, on the expiration of the renting period thereof, the said furniture in as good condition as the same-now is,,reasonable wear and tear excepted.”

On March 21, 1888, the defendant wrote the plaintiff as follows: “After May 1, 1888, out contract dated December 22, 1886, expires. I notify you that I will not have any interest, in the hotel after that date, as I will retire from the same. As regards your furniture that you have in it, will be at your disposal as far as I am concerned.” Plaintiff thereafter demanded the property; the defendant refused to give it up. Hence the present action.

The referee, upon evidence satisfactorily sustaining his finding,, decided that prior to the commencement of the action the defendant wrongfully- detained the property from the plaintiff; that the plaintiff had duly demanded its return; that the defendant had refused to deliver the same, and that the value thereof was $2,000. But he went further, and decided that the plaintiff had sustained damages by reason of the detention in the sum of $5,000. We find no warrant for this finding.

In trover, the value at the time of conversion with interest, is the measure of recovery. In replevin, the successful party can recover the possession of the property, with interest on its value, and the amount of the depreciation thereof as damages, for detention. In Brewster v. Silliman, 38 N. Y., at p. 430, the court, said: “It was held in Rowley v. Gibbs, 14 Johns., 385, that, in replevin, the decrease in the value, of the goods, with interest, upon the whole value, when the party was deprived of the possession, were to be allowed as damages for the detention under our former statute. The question of depreciation or no depreciation could only be determined by proof, first of the value at the time of the taking, and then proof of the value at the time of the trial.”' The depreciation of the goods during the wrongful detention by the defendant could be assessed without a special allegation of this cause of damage, because the source of damage is so obvious and direct that the defendant cannot urge surprise. Young v. Willet, 8 Bosw., at p. 492. See, also, N. Y. Guaranty & Ind. Co. v. Flynn, 55 N. Y., 653. In Young v. Willet, supra, there was much testimony as to the depreciation in the value of the goods during the detention, and the jury, were required specially to find the amount of such depreciation in value, and this they did separate and apart from the value of the goods and the interests thereon. Compensatory damages, in addition to the interest, may be added to the value only in cases where it is proved that it is necessary to afford a full indemnity. Suydam v. Jenkins, 3 Sand. 614.

In the case at bar there was no proof of value at the time of the trial, and therefore, the finding of the referee that the property was worth $2,000 must be taken as the value of the property at that time.

There is not only an absence of any finding that the property-had depreciated between the time demand was made and the trial,, but there was no evidence in the case which would warrant any such finding if it had been made. And, in the absence of any proof that the damages are more or less than the interest on the value, the presumption is that they are the interest for the time that the successful party was wrongfully deprived of the use. N. Y. Guaranty & Ind. Co. v. Flynn, supra.

There is another element of damage in actions to recover the possession of personal property, where the property has a usable value, and that is the value of the use during the time of the detention. Allen v. Fox, 51 N. Y. 562. But there was no evidence here proving the value of the use, nor can any be inferred from, the defendant’s contract. The contract was made in 1886, and expired May 1, 1888, when the defendant gave up the use of the hotel in which the property was contained; and it does not appear that he thereafter in any manner or way used the property or that the plaintiff had any special use for it. The wear and tear incidental to its use in the hotel for a period of two years would certainly tend to depreciate it largely.

In addition to this, it does not appear that the referee allowed anything whatever for the use of the property. On the contrary, it appears affirmatively by his opinion (at fol. 357 of the case) that the damages were allowed for depreciation in the furniture, and this interpretation of the referee’s finding frees the case from all doubt concerning the nature of the damages awarded. How furniture worth $2,000 could depreciate to the extent of $5,000 by a six year’s detention, is a problem we are unable to solve. In short, the action is the ordinary one of claim and delivery, in which the value of the property, with interest thereon from the time the conversion, affords ample compensation for every injury sustained. Wells on Replevin, § 537; Odell v. Hole, 25 Ill. R. 204.

It follows, therefore, that the judgment appealed from must be reversed, the order of reference vacated, and a new trial ordered, with costs to appellant to abide the event, unless within ten days the plaintiff files a stipulation reducing the damages for detention to $720, in which event the judgment as modified will be affirmed, but without costs of appeal.

Freedman, P. J., and Gtldersleeve, J., concur.


text:
    Mary Ann Diehl et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Elevated railways—Injunction—Conveyance.
    Tlie conveyance or release, to bo delivered on the payment of the sum. to obviate the injunction, is one effectually discharging the easement from all claims of every kind, character and description.
    2. Same—Lunacy.
    Where the defendant, in such case, intends to rely on substantial or technical defects in lunacy proceedings as a ground for the non-acceptance of such conveyance or release, they should be pointed out and made to appear of record so that they might have been considered below, and the decision thereon intelligently reviewed in the appellate court.

      Appeal by defendants from judgment rendered at equity term in favor of abutting owners, granting injunctive relief and past damages.

      Davies, Short & Townsend, for app’lts; M" W Tyler, for resp’ts.
   McAdam, J.

The court below, on evidence which satisfactorily sustains the result, found that the fee damage to the property, which is known as Mo. 656 Second avenue, this city, was $2,500, and that the past or rental damages were $1,960. The findings taken as a whole show that all legal rules were observed in arriving at the true measure o'f the damages, and that those only were allowed, which were consequential, pecuniary and compensatory, and in keeping with the authorities upon the subject. The evidence as to noise was competent as to past damages and does not appear to have been admitted or considered for any other purpose. The court found that the easements appurtenant to the land taken, in and of themselves, apart from any consequential damages had only a nominal value, and that the defendants were entitled" in mitigation to have taken into consideration, as against the physical inconvenience occasioned by their railroad, all advantages to the plaintiffs’ property, whether general or special in their nature, resulting from the maintenance and operation of said road, and the proximity of its stations, and these circumstances were considered and properly allowed for.

The sum to be paid to obviate the injunction is to be paid upon the delivery of a conveyance or release from all parties having an interest in or lien upon'the premises, which means a conveyance or release effectually discharging the easement from all claims of every kind, character or description.

The defendants object to part of this provision on the ground that Christopher Diehl, one.of the plaintiffs, was a lunatic, and that the committee of his estate appointed in proceedings instituted for the purpose, had no authority to execute for him the conveyance or release required by the decree. We do not find in the appeal book the papers in the lunacy proceedings, but a statement that they may be used upon the argument of any appeal herein. They were offered in evidence on behalf of the defendants at the trial, and it is to be inferred from this, and from the fact that the papers were not presented at the argument, that they were correct in substance and form and sufficient for the purpose for which they were evidently intended, for the offer below was unaccompanied by any suggestion to the contrary.

Mo defect was pointed out at the trial, and none can be inferred on- this appeal. The plaintiffs evidently endeavored to observe and satisfy all legal requirements in respect thereto, and if the defendants intended to rely on substantial or technical defects in the lunacy proceedings, they should have been pointed out and made to appear of record that they might have been considered below and the decision thereon intelligently reviewed here. We find no error, and the judgment appealed from must be affirmed with costs.

Freedman, P. J., and Gildersleeve, J., concur.


text:
    Marie H. Frohman, Resp’t, v. Charles Dickinson, as Executor, etc., App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1 Party-wall—Personal covenant.
    A contract between adjoining owners that a party wall should be erected by one owner at bis own expense, and that the other owner shall have the right to use such wall at any time in the future by then paying the former one-half of the cost, is personal to him as the builder of the wall, and the right to receive the promised reward will not pass to his grantee.
    2. Same.
    The contract to pay for the wall, when used by the latter, is also personal to him and cannot be discharged by the conveyance of the property by his executor, nor by the fact that such grantee, and not the executor himself, used the wall.
    8. Same.
    The fact that such grantee became "the owner in fee of both lots before the common use of the wall, does not affect such liability.
    Motion for judgment upon verdict directed in favor of the plaintiff subject to the opinion of the court at general term.

      L. Skidmore, for pl’ff and motion ; Stimson & Williams, for def’t, opposed.
   McAdam, J.

On September 18, 1890, the plaintiff was the owner of the house and lot, No. 49 West 28th street, in the city of New York, and defendant’s testator, William W. Jones, owned the house and lot adjoining on the west, No. 51 West 28th street On that day the plaintiff and Jones made a written agreement, reciting that both parties desired the erection of a party wall on the rear of the dividing line between said lots; that the said wall should be erected by the plaintiff at her own expense; and that said Jones “ shall have the right to use said wall at any time in the future,” by then paying plaintiff one-half of the cost, fixed at $250.

Plaintiff at once proceeded to build on said line a brick wall, of which one-half stood upon each lot. Jones died, June 11, 1891, having never exercised the right to use said wall, conferred by the agreement. By his will he appointed the defendant his executor, with power to sell said house and lot. On April 16, 1892, the plaintiff sold her house and lot to Charles B. W. Savage. On the following May 9th, the defendant, as executor of Jones, sold the house and lot No. 51 West Twenty-eighth street to said Savage, who thus became the owner in fee of both properties. Subsequently Savage built a one-story extention building on the rear of lot No. 51, and the erection of this extension by him is claimed "by the plaintiff to constitute such a user of the wall as to impose a liability on the estate of Jones under the agreement for the $250 aforesaid.

The contract to pay for the party wall, which was erected one-half upon the land of each of the parties, was personal to the plaintiff as the builder of the wall, and the right to receive the promised reward did not pass to the plaintiff’s grantee. Cole v Hughes, 54 N. Y. 444; Scott v. McMillan, 76 id. 141; Hart v. Lyon, 90 id. 663.

The contract to pay for the wall when used by Jones was also personal to him, and was not discharged by the conveyance of the property by his executor, nor by the fact that his grantee, and not the defendant in person, used the wall. The right to use the wall was inherent in and attached to the land which the defendant conveyed ; it was appurtenant to it, and passed with the land to the grantee. The half of the wall for which compensation is claimed stood on the land which the defendant conveyed, and the defendant’s granteé could not be prevented from using it. The conveyance made by the defendant in legal effect gave the grantee the right to use the wall, and the use of it by the grantee was, therefore, a use by the defendant’s authority, and, within the contemplation of the agreement, a use by the defendant himself. Squires v. Townshend, 2 City Ct. Rep. 142 ; Squires v. Pinkney, 13 St. Rep. 749; Scott v. McMillan, 16 id. 795.

The defendant urges that after Savage became the owner in fee of both lots the wall ceased to be a party wall, and that his right to deal with it did not depend upon and was not derived from the agreement; that he might have destroyed the wall and rebuilt one either upon the same line or any other portion of the united premises ; and that in that event he would not have become liable under the agreement. We are not called upon to consider what might have been the liability of the parties if the wall had not been used as contemplated by the agreement, but are to decide the liability of the parties growing out of the use actually made; and such use being that for which $250 was to be paid, the right to that sum became immediately vested in the plaintiff.

The plaintiff never had title to the property of the defendant, and she had nothing to do with his conveyance to Savage. It must be evident, therefore, that the defendant could not discharge himself from a personal obligation to pay, by a mere conveyance of his property to another, or upon any argument founded upon legal complications growing out of the transfer.

The use of the wall by the defendant, within the meaning of the covenant to pay, was clearly established at the trial, and the direction to find for the plaintiff was right. It follows, therefore, that the plaintiff’s motion for judgment upon the verdict (Code, § 1234) must be granted, with costs.

GrILDERSLEEVE, J., concurs.