text:
    Randolph Guggenheimer, App’lt, v. The Greenwich Fire Insurance Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Insurance—Eire—Parol contract—When a question for jury.
    In an action to recover ■ the amount of certain policies of insurance against fire, the payment of which was resisted, because of false statements in the policy, there was evidence tending to prove an oral contract made with the officers of defendant company, and that the policies issued to-the plaintiff’s assignor, were not in conformity with said contract and were received and keptfor about a month, in ignorance that they differed from said contract. This was contradicted by the defendant. Meld, that it was. a question for the jury whether the contract was made as claimed.
    2. Same—What constitutes acceptance of.

      Held, that the receiving said policies without careful examination, trusting to the belief that they had been made out according to the verbal contract and retaining them for a month, did not constitute an .acceptance of the policies in the form they were received, nor a waiver of the plaintiff’s-assignor’s right to refuse to accept them under said contract.
    3. Same—Practice—Porm of relief.

      Held, that if the jury should find there was such a contract as claimed by the plaintiff, he may either maintain the action, as one for the specific performance by the execution and delivery of the policies in proper form, or for damages for the breach of the contract to insure.
    Appeal from a judgment recovered on the dismissal of the plaintiffs complaint at the circuit.

      Samuel Untermeyer, for app’lt; O. E. Bright and Sumner B. Stiles, for resp’t.
   Daniels, J.

The plaintiff’s causes of action as they were-set forth in the complaint were four in number, dependent upon agreements for insurance made by the defendant in. favor of Margaret O’Sullivan, and assigned by her, to him. During the progress of the trial it was proved that four-policies of insurance were issued to the assignor upon two buildings, known" as Nos. 343 and 344 East Sixty-first street, in the city of New York.

At the times when the policies were issued, and the fire-took place, the buildings were in the course of erection and .completion and were unoccupied. They were described in. the policies as occupied for stores and dwellings which, according to provisions contained in the policies were warranties, and not being truthful, the plaintiff was not entitled to recover upon the policies themselves. It was insisted that the company was estopped from taking this objection to the policies because of what previously transpired between its agent and officer John O’Sullivan, who acted as the agent for and on behalf of his wife, the assured named in the policies. But that position cannot very well be maintained, inasmuch as the policies were issued upon written applications conforming in their statements to this misrepresentation which was embodied in the policies. As to the policies themselves, they were based upon these applications, and in issuing them they were made out as that was designed to be done by the company and as they were applied for by the applications.

But in the trial of the action the right of the plaintiff, as the assignee of the assured, was not confined to the policies themselves, but it was mainly made to depend upon a previous agreement stated to have been made with the insurance company. This agreement, as the proof had a tendency to sustain it, was between John O’Sullivan, acting for his wife, and Mr. Harriott, a clerk of the company empowered to act for it in the presence of Mr. Stone, one of its officers. To prove the making of the agreement, O’Sullivan testified as follows: I went down there to the company’s office to pay for the policies on No. 7i East One Hundred and Twelfth street and on 2006 Fourth avenue, and after I got through paying for them Mr. Harriot said: “Well, Mr. O’Sullivan, what are you doing at present?” I said I am jnst after buying two lots in Sixty-first street, and I am putting up some buildings there in Sixty-first street, on the south side, between First and Second avenues, and I will be. ready for an insurance policy there in a short time; he asked me what what kind of buildings they were, .and I told him they were five stories, with stores on the first floor and tenements up above; I told him I would be ready for an insurance there in two or three weeks; I told him they were nearly ready for the roof to be put on, and I told him that I wanted a policy the same as was issued to me on No. 33? East Sixty-ninth street; I said I wanted a builder’s privilege into it, just the same as I had in that policy, and all that is necessary to make the place safe; he .said, “All right; you can either come down or send down;” I said to him, “Will the rate be any more than on the other?” and he said, “No, it will be just the same;” I told him it would be fall before the houses would be finished; I told him that in two or three weeks I would be ready to get a policy, that I would have the roof on then, and in that policy"! wanted a builder’s privilege.

And if this testimony was truthfully given, there was a verbal agreement made between him for his wife and the company, that it would insure these buildings substantially in the same form that it had insured another building for her on East Sixty-ninth street by a policy number 337. That policy insured the building in progress of construction, and not as a completed, or occupied, structure, and permitted the work to progress which was necessary for its. completion. The rate of premium is stated" by the witness to have been agreed to as the same of the other insurance, and the buildings as well as their locality was mentioned m such a manner, as to describe and ascertain them to a reasonable degree of certainty. And these were all the elements required to be settled for the making of a complete contract of insurance. The time was specified, at the expiration of which the insurance would be required, and the policies were to be obtained either by O’Sullivan himself, or some other person sent for them. Both Harriott and Stone, who was stated to be the person with whom the conversation took place, denied the making of this agreement, and stated that no such interview had taken place in the presence of both, or either, with O’Sullivan, but their evidence did not so conclusively dispose of the case which the testimony of O’Sullivan tended in this manner to establish, as to entitle the defendant to a dismissal of the complaint. The effect of the evidence was not to be tried by the judge presiding at the trial, but that as a matter to be considered and determined by the jury. They could, if they believed O’Sullivan, find the agreement to have been made as that was stated by him, although his testimony was contradicted by these two witnesses, and may not have been entirely consistent with other evidence given upon the trial. If the jury should be satisfied upon the consideration of the testimony that O’Sullivan’s evidence was still reliable, then it would follow that a legal contract for insurance was made by him, on behalf of his wife who was the owner of the property, with the insurance company. And the agreement would remain obligatory as long as neither party refused to carry into execution. This subject was very fully considered in Post v. Ætna Insurance Company (43 Barb., 351), where a contract for insurance verbally made in a somewhat similar manner, was held to be obligatory upon the insurance company. A point not entirely dissimilar has also been considered in Landers v. Watertown Fire Insurance Company, by the general term of the fifth department, and decided in January, 1887 (6 N. Y. State Reporter, 168), where the company was held to be. liable to perform a contract for insurance made in this manner, and neither of the authorities which have been brought to the attention of the court by the counsel for the defendant, contains anything gainsaying the correctness of this legal principle,

O’Sullivan gave further evidence to the effect that he did not read the policies which were afterwards issued by the defendant. Neither did the plaintiff who was the person as mortgagee of the property for whose benefit the insurance was to be made.

The testimony of O’Sullivan also contains the statement that he exhibited to Mr. Schuyler, through whose intervention the policies were obtained, the one which had been issued previously on the property on Sixty-ninth street, instructing him that the policies to be obtained from the company were to be in the same form, and that when these policies were produced and brought to his knowledge, that he believed they had been issued in the same form in which he gave his directions to Schuyler, and in compliance with the oral agreement stated to have been in this manner made with the insurance company, and that the fact was not discovered that there was this difference between these policies and the one previously issued, which it now turns out existed, and rendering them inoperative as policies of insurance upon this property. There was some evidence in the case tending to prove that O’Sullivan did acquaint himself with the contents of the policies, but it was not of such a nature as to deprive the plaintiff of the right to have that point submitted to the decision of the jury. If O’Sullivan rightly stated the facts in this respect, then there was no waiver on his part of his right to insist upon the performance of the oral agreement alleged to have been made for the issuing of these policies. For without knowledge or information of their contents, it could not be inferred that he designed to accept these policies in place of those mentioned by him in his testimony, as the form in which the insurance was to be made by the company. Whether he was right in this respect, as in the other, was therefore a question to be submitted and decided by the jury and not by the court.

That he did not design to authorize Schuyler and Beach to receive policies different from that on the Sixty-nintli street property is quite clearly evident from the testimony, for he produced to Mr. Schuyler, one of the agents, the policy on the Sixty-ninth street property as being made in the form in which the others should be obtained. Neither is it to be supposed that he authorized the insurance agents to represent to the company that the buildings were occupied as stores and dwellings, when they were not in a condition to be so occupied; and no motive could have existed on the part of O’Sullivan to misrepresent the condition of the property in this respect. If he is right as to the interview stated to have taken place at the time when it is alleged insurance was agreed upon, information was given by him to the clerk and officer of the company that the buildings were not finished, and would not be, before the fall; and the policies themselves were issued so as to take effect on the first of August, while the fire happened on the 7th of September, 1885.

If the witness O’Sullivan was correct in his statements, then there was no such lapse of time between the issuing of the policies and the occurrence of the fire, and the discovery of the form in which they had been made out, as would prevent him from refusing to accept them. In dealings of this description no very rigid rule can be applied, for some heedlessness on the part of the insured is not an uncommon attribute, and it is ordinarily excusable by reason of the manner in which the business of insurance is done.

The party receiving policies commonly takes it for granted that they are properly issued by the agents, or officers of the the company. Reliance is placed upon the expectation that the company itself will take care to make the insurance valid and effectual, and that expectation relieves the assurred from the obligation of making that degree of scrutiny as would exist if so much confidence was not reposed in the agents and officers of the company itself. In this case it was undoubtedly assumed, when the policies were received, that they were effective and legal insurances of this property And, if O’Sullivan is reliable in his statements, he had reason to believe them to be so, for he had enjoined upon the agent the description of policy expected to be obtained and had, in his interview with the clerk in the presence of one of the officers company, impressed that also upon these individuals. And he had paid the premium exacted for the description of insurance desired to be obtained on these buildings. They were not so made, and, when that fact was discovered, O’Sullivan, as the agent of his wife, was not deprived of the right to reject the policies, and to rest upon the agreement stated by him to have been made on the 15th of June, 1885, at the office of the company.

It was stated, during the progress of the trial, in evidence given on behalf of the defendant, that the buildings were being erected with hollow walls, thereby increasing the risk of the company and avoiding the insurance, but that was denied by other evidence, presenting on this part of the case, also a dispute to be determined by the jury.

The assignment also made to the plaintiff has been objected to as insufficient to transfer to him the right to recover upon the oral agreement if that should be found to be sustained by the jury. But this objection appears to be without foundation for the reason that the assignment contained a transfer of all claims arising out of the injury or destruction of the premises described in the policies. That was sufficient certainly to transfer to the plaintiff any right of action which the insured had acquired through the loss and destruction of this property by fire. It will not be essential that the policies which were issued should be reformed, if the plaintiff was proved in other respects to be entitled to maintain the action, for as they may be rejected, if the evidence on behalf of the plaintiff shah prove to be reliable, he may recover upon the oral agreement to issue policies for the insurance of the property. This point was also considered in Post v. Ætna Ins. Co. (supra), where it was held that the party may either maintain the action for the specific performance by the execution and delivery of policies in proper form, or for damages for the breach of the contract to insure. And as there is no question arising in either respect upon the pleadings in this action, the plaintiff was in a situation to recover, if the evidence would warrant it under either of these views. As the evidence tended to present the case, the controlling points in controversy were for the jury and not for the court. And the judgment should be reversed and a new trial ordered with costs to the appellants to abide the event.

Van Brunt, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Yak Brunt, P. J.

license: Public Domain

text:
    Matter of the Settlement of the Account of Robert Willets, etc.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Will—Construction of.
    The testator by his will bequeathed certain annuities, and directed his executors to sot apart and invest a fund sufficient to produce said annuities. which fund and the unappropriated income thereof was on the decease of the annuitants as they respectively died, to he divided amongs this grandchildren, who should be living at the time of the death of the respective annuitants per capita and not per stirpes, only retaining an amount sufficient to produce the required amount for the remaining annuitants. By a later clause in his will the testator devised all the rest, residue and remainder of his estate real and personal unto his executors, etc., in trust to sell, etc., and divide the net proceeds thereof into as many shares as there should be of his grandchildren, and he directed his executors to invest the said shares and apply the income of said shares to the use of certain of his grandchildren and upon the death of each of said grandchildren to pay over the principal and accumulations of ,he share set apart to such grandchild to his or her lawful heirs. By a' codicil of his will he revoked all the provisions and bequests in favor of and given to Ms grandcMld Amelia and to her issue in the residuary clause of Ms will, and gave direction as to the disposition of her share therein Held, That the revocation applied only to the latter of the clauses of the •will referred to above. And that Amelia was entitled to a share in the annuity fund when distributed.
    2. Executors and administrators—Trustees—Manner ok keeping accounts.

      Held, That the more orderly way was for the trustees to keep an account with each one of the trusts, where each trust is separate and distinct, and where each trust had to bear its own expenditures and losses.
    3. Same—When entitled to commissions as both executor and trustee.
    When the executor has terminated his duty as such and the fund is held and managed by him as trustee, he is entitled to his full commissions as. executor and his commission as trustee. Following Laytin v. JOamdson, 95 N. Y„ 263.
    Appeal from decree of the surrogate settling the accounts, of the trustees of Samuel Willets, deceased.

      G. F. Foster, for app’lt; Nelson M. Powell, for the trustees, resp’ts; Clifford A. H. Bartlett, for Amelia W. Leavitt, resp’t.

      See 7 N. Y. State Rep., 716.

   Yak Brunt, P. J.

The testator, Samuel Willetts, by his-, will bequeathed certain annuities to divers persons, amounting in the aggregate to $10,000, and directed his executors' to set apart and invest a fund sufficient to produce said annuities or to hold a sufficient amount of stocks for that purpose which fund and the unappropriated income thereof was on the decease of the annuitants as they respectively die, to be divided amongst his grandchildren, who should be living at the time of the death of the respective annuitants per capita and not per stirpes, only retaining an amount sufficient to produce the required amount for the remaining annuitants.

By a later clause of his will the testator devised and bequeathed all the rest, residue and remainder of his estate, real and personal, unto his executors, the survivors and survivor of them, in trust to sell, dispose of and convert into cash the said residue of his estate and divide the net proceeds thereof into as many shares as there should be of his grandchildren and he directed his executors to invest and keep at interest on bond and mortgage, upon real estate or in stocks of a permanent and productive nature, all of said shares, and apply the interest, income and dividends of each of said shares to the use of certain of his grandchildren named in said will, and upon the death of each of said grandchildren, to pay over the principal and accumulations, if any, of the shares set apart to such grandchildren,, to his or her lawful heirs.

The will, also, contained a provision that in case it should happen that either of .his grandchildren should have no-issue, him or her surviving, then the share of the one so dying, should be paid over to the survivors.

By a codicil to his will the testator provided that in consequence of having made large and sufficient provisions, bequests and devises to his granddaughter, the respondent, Amelia W. Leavitt, and his issue in other portions of his will, he thereby annulled and revoked all the provisions and bequests in favor of and given to her and her issue in the residuary clause thereof, and he thereby directed that his executors should divide the residuary fund therein provided for, into as many shares as there should be grandchildren, exclusive of the said Amelia W. Leavitt, and to pay over the income and interest of said shares, and to dispose of the principal thereof respectively to his several grandchildren and their issue as therein provided, exclusive of the said Amelia W. Leavitt and her issue.

The executors named in the will having entered upon the duties of their trust, and having provided the annuity fund in the said will referred to, and having divided the estate into the shares provided by said will, presented their petition in December, 1885, for the judicial settlement of their account as trustees under the will, and such proceedings were thereupon had that a decree was entered by the surrogate passing said accounts, and from some portions of that decree this appeal is taken.

It is urged that the learned surrogate erred in finding that Amelia W. Leavitt was entitled to share in the annuity fund, because of- the codicil whereby all provisions and bequests in favor of and given to her and her issue in the residuary clause of the will were revoked.

The language of the codicil seems clearly to intimate that but one residuary clause is referred to, and that in that residuary clause in which provisions and bequests in favor of Amelia W. Leavitt and her issue had been made, because the language of the codicil is that the testator annuls and revokes all the provisions and bequests in favor of and given to her (meaning Amelia W. Leavitt) and her issue in the residuary clause thereof. The only provision in any residuary elapse for Amelia W. Leavitt and her issue is that part of the will whereby he directs his executors to sell and dispose of his estate and to convert it into cash and divide it into as many shares as there should be of his grandchildren. That clause also contains a provision that upon the death of Amelia W. Leavitt the executors shall pay over the principal and accumulations, if any, of the share allotted to said Amelia W. Leavitt to her lawful issue, and this clause is evidently the one referred to by the testator in his codicil, because in the clause relating to the annuities there is no provision whatever for the sharing by issue in the provision therein made for his grandchildren. It is only his grandchildren who are entitled to share in the distribution of this annuity fund, or any part thereof, the direction for division being a direction to divide among the testator’s grandchildren who should be living at the time of the death of the respective annuitants per capita and not per stirpes, and there being no provision whatever for the issue of any deceased grandchild taking any share in this portion of the estate. The devise is to a class, and to such of the class as should be living at particular times, death necessarily excluding from participation, either directly or representatively.

The language of the codicil is not applicable in any way to this distribution of the annuity fund, and the testator evidently did not intend to deprive his grandchild, Amelia W. Leavitt, of this provision which he had made in his will for her benefit.

Objection was also taken to the fact that the trustees kept separate accounts with each one of these trusts. It would seem to us that that was the more orderly form in which the trustees should keep those accounts. Each trust was separate and distinct, and each trust had to bear its own losses, and it was especially necessary after the division which the executors were required to make immediately after the reduction of the estate into cash and the allotment of the various shares, that separate accounts should be kept of each by the executors, in order that there should be no confusion arising in the management of those separate and distinct shares.

•It was also objected that the executors were not entitled to commissions as executors and as trustees. It would seem, however, under the decision of the court of appeals, as the executors have terminated their duties as such, and the fund is held and managed by them as trustees, that they were entitled to their full commissions as executors and also to their commissions as trustees. Laytin v. Davidson, 95 N. Y., 263.

There seems to have been no error in the method in which the charge for taxes and salary of clerk was made. The taxes are a charge against the whole estate, and the services rendered by the clerk were rendered for the whole estate, and an apportionment of those charges was proper. They could not be saddled upon any one particular part of the estate.

There seems, therefore, to have been no error in the decision of the surrogate and the decree appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.


author: Daniels, J. Brady, J.

text:
    Robert J. Dean et al., Appl’ts, v. Marshall S. Driggs, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Warehousemen—When liable in a civil suit for giving a false warehouse RECEIPT—Laws 1858, CHAP. 326—Laws 1866, CHAP 440.
    In a civil action for damages brought under Laws 1858, chapter 326, section 7, as amended by Laws 1866, chapter 440, against a warehouseman for having issued certain warehouse receipts which were untruthful and a violation of section 1 of said acts. Meld, that the right of action depends not upon the willful violation of the law, but only on the circumstance that it has been violated to the injury or damage of an aggrieved party.
    2. Same—What proof will justify a recovery of damages by the person RECEIVING THE RECEIPTS.
    It is not necessary to prove that the defendant had willfully violated the provisions of the act, but only that he had in fact violated them.
    3. Same—Party not required to take and sell the property before BRINGING HIS ACTION.
    The plaintiffs were not required to take and sell the property before bringing the action, but were entitled to recover the damages sustained by them on proving that the property was of no value over and above the charges of the defendant for keeping it in store, and that the person in whose name the receipts were issued was insolvent.
    Appeal from a judgment entered upon the dismissal of the plaintiff’s complaint.

      Charles Blandy, for app’lt; John Berry, for resp’t.
   Daniels, J.

The defendant on the 28th of March, 1885, issued two warehouse receipts for Portland cement, each being, except as to the amount and the vessels from which it was received, in the same form. By the receipt for the larger amount of 1,500 barrels, it was stated as follows :

“M. g. Driggs & Co.’s Warehouses, ) New York, March 28, 1885. )
Received.from Max Van Angern, ex Grimaldo, in store No. 278-80 South street, to be held by us on storage, and to be delivered to his order on return of this receipt, and payment of storage and charges fifteen hundred barrels Portland cement.
Storage per month
Labor . M. S. DRIGGS & CO.”

This receipts were deposited as security with the Chemical National Bank, for a note made by Max Von Angern, the person named in them, for the sum of $3,500. The plaintiffs guaranteed the payment of the note upon the transfer to them, or either of them, of the note itself, and all the right, title and interest of the bank in and to the collateral securities specified or referred to therein, if reguested at the time of such payment. The note was not paid at its maturity, and the plaintiffs at the request of the bank made payment of it and received the warehouse receipts.

The evidence given at the time, as it was obtained from at least two of the witnesses, was that the article they found in store and which they examined upon the defendant’s premises was not Portland cement. That, in the trade, included cement having the quality of setting or hardening, under water. Other evidence was given indicating that it might onlyy or partly, have been cement of this description which had become hardened and useless by reason of its exposure to water or moisture. The court, however, deeming the evidence to be insufficient to allow the plaintiff to maintain the action, at the close of their cases dismissed the suit, and to that direction an exception was taken. Whether this direction was warranted by the law, must mainly, if not wholly, depend upon the construction which should be placed upon chapter 326, of the Laws of 1858, as that has been amended by chapter 440, of the Laws of 1866. For if the case upon so much of the evidence as tended to prove that the article received and held in store by the defendant was not Portland cement, was such as to entitle the jury to find that fact in the plaintiff’s favor, then the receipts issued by the defendant were untruthful and a violation of the first section of those acts.

By that action it has been declared that no warehouseman, wharfinger, public or private inspector, or custodian of property, or other person shall issue any receipt, acceptance of an order, or other voucher, for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity, to any person or persons purporting to be the owner or owners thereof, or entitled or claiming to receive the same unless such goods, wares, merchandise, provisions, grain, flour, or other commodity, shall have been actually received into the store or upon the premises of such warehouseman, wharfinger, inspector, custodian or other person, and shall be in store or on the said premises as aforesaid, and under his control at the time of issuing such receipt, acceptance or voucher.

And if this article was not Portland cement, then the defendant did issue warehouse receipts in violation of this section of the statute. For it has been expressly declared by it, that no such receipts should be issued, unless the goods, wares, etc., shall have been- actually received into the store, or upon the premises, of the person issuing it. The law has therefore placed upon the person issuing /the receipt the responsibility of having the property upon his premises, or in his possession as a warehouseman, before it will permit the receipt to be issued. And if the defendant did not have the property mentioned in the receipts, in this manner, at the time, he violated this section of the act in making and delivering the receipts. And by section 6 of the same act it has been further provided that the receipts may be transferred by endorsement, and any person receiving such a transfer of them shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, etc.

By section 7 of the same act it has been further declared that any warehouseman, wharfinger, inspector, custodian or other person who shall willfully violate any of the foregoing provisions of the said act as hereby amended shall be deemed guilty of a misdemeanor, and upon indictment and conviction shall be fined in any sum not exceeding $1,000, or imprisonment not exceeding one year, or by both such fine and imprisonment, and all and every person or persons aggrieved by the violation of any of the provisions of said act, as hereinbefore mentioned, may have and maintain an action at law against the person or persons violating any of the provisions of said act as hereby amended, to recover all damages, immediate or consequential, which he or they may have sustained by reason of any such violation, as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted, as herein-before mentioned, or not.

And it is under the latter branch of this section that the plaintiff’s have mainly derived their right to maintain this action against the defendant. But in answer to that position it has been objected in his behalf, that this section imposed no liability upon him unless he willfully violated the first section of the act of 1858, as it was amended in 1866. That objection has been placed upon the first part of the section making it a misdemeanor, punishable by fine and imprisonment for any warehouseman, wharfinger, etc., to wilfully violate the preceding provisions of the law. But after completing the enactment declaratory of the offence, it has then proceeded to declare that every person aggrieved by the violation of any of its provisions, may have and maintain an action against the person or persons violating them, to recover all damages, immediate or consequential sustained by such violation.

This part of the act creating a right of action is separate and distinct from that which is declaratory of the criminal offenses.

The former could not on general principles very well be committed without intentional wrong on the part of the person accused, and for that reason a willful violation of the act was made a necessary attribute of the crime, while that could not be a necessary or essential circumstance for the creation of a mere civil liability for damages. If the element of a willful violation should be held to be necessary to a right of action for damages, then the preceding pro-' visions of the law would in the large majority of cases be wholly nugatory.

The language in which they have been framed justified no such supposition, as that the legislature intended there should be a willful violation in order to create a liability under these sections of the act. They are on the contrary severally complete and intelligently expressed by themselves, and they have as distinctly prohibited the acts which they were intended to prevent as that could very well be done by the use of language.

In each of the prohibitory sections preceding section 1, it has been clearly declared what shall not be done, and by the first section, which includes these receipts, issuing them for Portland cement, never received by the defendant, was--distinctly forbidden. That violated the provisions of the section, and by the latter branch of section 1, whenever such a violation shall take place there, the party aggrieved has been vested with the right of action for the recovery of his damages. Two classes of cases are very clearly contemplated—one criminal and the other civil; and to create a ground of action for damages, all that has been prescribed is that the preceding provisions of the act shall have been violated to the injury or damage of the person complaining; of it. The section is clearly divisible, in no manner subjecting the right of action for damages to the wilful violation of the law, but making it dependent only on the circumstance that it shall have been violated to the injury or damage of an aggrieved party.

The object of the acts was to correct irregularities which had arisen in the course of this business, and to prevent warehouse receipts from being issued until the property mentioned in them reached the possession of the party issuing the receipts.

To some extent at least a different practice had prevailed, in the business and persons relying upon and dealing in those receipts were liable to be subjected to losses by reason of their inability afterwards to obtain the property. What-the legislature designed by these laws was the abrogation of that practice, and to render it certain that when warehouse receipts were issued, the property mentioned in them should previously be placed in the custody of' the warehouseman. If he could only be made liable in. damages for willfully issuing an untruthful receipt, then there was no necessity, whatever, for this legislation, for which a liability would plainly exist without it.

Even the law as it previously existed was more provident of the rights of the person purchasing or loaning money on the faith of such receipts, if the right of action must depend upon a willful violation of the statute, for it would not permit the party making them against such dealers to protect himself by asserting that the property itself had never come to hand. Mayer v. Peck, 28 N. Y., 590, 598-9; Armour v Michigan Central Railroad Co., 65 id., 111; Van Santen v. Standard Oil Co., 81 id., 171.

It was to make the law still more complete and effectual than it was previously understood to be, that these statutes were enacted, and it will wholly deprive them of this effect, to so construe them as to supply redress under their provisions only when the restraints of the law should be willfully violated. In all civil cases such a construction would render these laws practically of no effect.

Dealers in this class of securities would be much worse off in relying upon their provisions, if they should be so construed, than they were under the rules previously administered and enforced by the courts. Such legislation so far as indemnity to injured or defrauded parties might be included, would be entirely useless. And it is not to be presumed that the legislature would submit to the farce of their enactment, when by their own declaration they rendered the preceding provisions of the law of no effect in the way of redressing private wrongs.

The cases of Yenni v. McNamee (45 N. Y., 614), and Insurance Company v. Kiger (103 U. S., 352), sustain no such construction of the statutes, as will exempt the defendant' from liability. In neither of them did this question either incidentally or directly arise.

The first was held not to be within their provisions while the second proceeded upon the controlling fact that the property itself which had been continued in the receipt belonged to a third person and was taken out of the posses - sion of the warehouseman by legal proceedings. They can have no weight or effect in the decision of this case. For as it was proved in part, at least, the law was violated by the issuing of these receipts, as in fact the defendant at the time did not have the Portland cement mentioned in them, in his possession, or upon his premises, and a liability was created against him in the plaintiff’s favor, if the jury should be satisfied that this was the truth of the case.

The statute has not made the plaintiff’s right of action dependent upon their first taking and selling the property. The proof was that it was of no value over and above the charges of the defendant for keeping it in store, and the person in whose name the receipts were issued was issued proven to be insolvent. If the plaintiffs can maintain the action, no difficulty therefore stands in the way of proof being given substantiating their damages, and all that the law requires to create a right of action is, that the receipts shall have been falsely issued and the persons dealing with them, upon the faith of their truth, shall have been injured and sustained loss.

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

Brady, J.

I agree to the reversal of the judgment herein upon the ground that there was some evidence tending to prove that the receipt was false in stating that Portland cement had been received, the article received not being such in fact. The testimony is subject, to criticism, but, nevertheless, it was, I think, sufficient to go to the jury. _


author: Daniels, J.

text:
    Henrietta Thwaites, App’lt, v. Bertha A. Deane and Another, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Practice—Reviewal oe the evidence on appeal—All the material TESTIMONY TO BE PRESENTED.
    The question whether the evidence justified the conclusion adopted, as the result of the trial, is raised before the appellate court as long as all the testimony that is material has been presented. All the material testimony includes all the evidence bearing upon the controverted points in the action. The immaterial testimony has no such bearing and should be excluded.
    2. Usury—What constitutes usury—Effect of paying brokers’ fees, THOUGH ULTIMATELY USED FOR THE BENEFIT OF BORROWER.
    To constitute usury some consideration in addition to the lawful interest must!'proceed from the borrower. Even though it happen that the broker and the borrower are both indebted to the lender, and the borrower pay his broker a lawful debt, using part of the borrowed money for the purpose, and the broker, in discharging his own indebtedness to the lender, uses this same money, yet this does not constitute usury. The money, on receiving it, belonged absolutely to the broker, and he could make what use of it he desired.
    3. Same.
    When the borrower and a third party are both indebted to the lender on the same account, and, in making the loan, there is an understanding that a part of the borrowed money shall be placed in the hands of the third party, by whom it shall be paid back to the lender on his own indebtedness, this does not constitute usury, because the payment indirectly benefits the lender.
    Appeal from a judgment recovered on trial at the special term.

      John E. Parsons, for app’lt; William B. Martin, for resp’ts.
   Daniels, J.

The action was instituted to foreclose a mortgage executed by the defendants upon property owned by Bertha A. Deane, situate on Fifty-fourth street, in the city of New York. It was incumbered by a preceding mortgage, on which there was unpaid about the sum of $70,000, and the mortgage in suit, together with another for $15,000 on the same property, were given to secure a loan of $20,000. The loan was in form made by the plaintiff, but in fact by the firm of Martin & Leask. The defense, which prevailed at the trial, was that it was made on terms securing to the lenders of the money more than the lawful, rate of interest, and that it was consequently void for usury. Whether the court rightly construed the evidence as entitled to this effect is the point upon which the disposition of the appeal must depend, for there are no exceptions to the exclusion or receiving of evidence which can be held to have been erroneously made during the trial. The objection has been taken in the outset that the effect of the evidence cannot be reviewed or considered upon the appeal, for the reason that the case has not stated that all the testimony given upon the trial has been set forth. But this objection is without foundation, for the case does state that it contains all the material testimony which was presented, which will include all the evidence bearing upon the controverted points in the action. Immaterial testimony has no such bearing, and not only may but it should be excluded, for it can be. entitled to no consideration in the disposition of the controversy between the parties. All that is pertinent and all that can be considered in any consideration of the case, is the material testimony. And as long as all that is material has been presented, the question is raised whether it justified the conclusion adopted as the result of the trial.

In obtaining the loan of the money for the defendant, John H. Deane acted for his wife, and his interviews and arrangements were carried on and made with George M. Yanderlip, who was a person engaged in the business of negotiating and obtaining loans of money. That it was not designed to obtain this loan under any agreement or arrangement for the payment of more than the lawful rate of interest, is clearly disclosed by the testimony of all the witnesses. Mr. Deane himself swears that he never had any idea that the act should be usurious. And Yanderlip, as, well as the witness Leask,' who acted for his firm in making the loan, gave evidence to the same effect as to this fact. And to avoid the possibility of a usurious transaction, what was proposed to be done was at the instance of Deane referred to the counsel of himself and Mrs. Deane, who agreed that the money could be legally loaned and appropriated, as it was proposed that should be done, by these individuals.

And as there was no usurious intent as a matter of fact ón. the part of either of these persons, the only question in the case is whether what was actually done and performed,, did reserve to the lenders a greater rate of interest than that provided for by the statute, enabling the borrower to avoid responsibility on the ground of usury. There was no denial of the fact, as there could not be, that the twenty thousand dollars was actually advanced by the lenders to Mr. Deane for and on behalf of his wife. The lenders supplied the plaintiff with this sum of money as a deposit to her credit, and she drew her check for that amount, payable to the order of Bertha A. Deane, and. that check was-delivered to Mr. Deane as her attorney, and passed to his credit. The object of his wife in making the loan as stated, by himself was, that she was to loan him the money and that he was to have the use of it, arid as a matter of fact, did use a large part, if not the whole of it. His testimony was that he used as much as he needed. In addition to. the fact that the check for the money was delivered to him it was proven that he had general authority to act on behalf of his wife. And in his capacity of her agent and for himself as finally the "borrower of the money, he arranged with Vanderlip the terms under which the loan should be effected. It was a part of these terms that Vanderlip should receive the sum of fourteen hundred dollars-for his services and expenses in obtaining the loan. And a. check for that amount was drawn by Mr. Deane, and delivered to Vanderlip on the 7th of August, 1884, the day after the date of the check, for twenty thousand dollars. Out of that, he paid the sum of two hundred and sixty dollars for the expenses of the search and the examination of the title, and the residue of the eleven hundred and forty dollars was passed over by him to the firm of Martin &. Leaslc, and credited upon an indebtedness owing to them from Vanderlip. This under the authorities was not a. feature of the transaction upon which the charge of usury could be either made or sustained. The payment of this-amount to Vanderlip was the result of an agreement between himself and Mr. Deane. And under the authorities, applicable to this subject, it was not unlawful for Vanderlip to stipulate for the payment to him of this sum of money for his services of obtaining the loan. Condit v. Baldwin, 21 N. Y., 219; Van Duzer v. Howe, id, 531; Chatham Bank v. Betts, 37 id, 356; Philips v. Mackellar, 92 id, 34; Guggenheimer v. Geiszler, 81 id, 293.

The amount of this check was, under the agreement, the-property of Vanderlip, and the fact that he paid the larger-part upon his indebtedness to the lenders of the money,, will not support the defense of usury. It was his money to use it as he pleased, and they had no more benefit from it than from any other sum which he, as their debtor, might have paid them in partial satisfaction of his own indebtedness to them.

Mr. Deane was also hable to Martin & Leask upon the same indebtedness on which "Vanderlip paid this money. They held Deane’s acceptances for, or by way of security upon, the indebtedness, and to the extent to which it was reduced by the payment Deane himself was benefited by it. For that reason Vanderlip applied to him for a further sum of $150 as a compensation for his own services, to be wholly appropriated to himself. The propriety of this application was acceded to by Deane, and he gave him a check for that amount, on which the money was received by Vanderlip. This sum, being paid to him professedly for his services in this manner, could not characterize the transaction as usurious any more than the other amount previously received by Vanderlip from Deane.

In the negotiations and the agreement for the loan made between Deane and Vanderlip it was agreed, in case it should be made that $5,000 of the money should be paid to Martin & Leask upon their account, which was against Vanderlip, and for which they also held the acceptances of Deane. These acceptances, amounting altogether to the sum of upwards of $20,000, had been made and used in obtaining loans and discounts for Deane, and they were held by Martin & Leask as an indebtedness against Deane, which they were, and also upon the account against Vanderlip, for which he himself was liable. Deane had made an assignment for the benefit of his creditors, and in that assignment these acceptances were preferred after other •indebtedness to the amount of about $300,000. It was supposed, however, that the preference insured the payment of the acceptances, for the reason that the estate of Deane transferred by the assignment, was believed to be more than sufficient for this purpose. Under this arrangement Deane, as the agent of his wife, drew a' check for the sum of $5,000, payable to Vanderlip, and delivered it to him, and Vanderlip paid the amount over to Martin & Leask, for which they gave him credit oh his account and delivered to him two of Deane’s acceptances amounting to the sum of $25,000 each.

They also executed an assignment of a corresponding amount of the preference in the assignment to Mrs. Deane. Whether the loan was usurious, depends upon the force and effect to be given to this particular part of the transaction. It was understood by Leask, if the loan of $20,000 should be made, that Vanderlip would pay him this sum of $5,000, and it was agreed with Deane that so much of the loan should be used 'in this manner by Vanderlip. The latter testified that he was not obligated to pay this particular money to Martin & Leask, but that he promised Mr.. Leask to reduce his own indebtedness to him, as far as that could be done from all the moneys which he received m this business, and that he did so.

Upon the trial-it was held by the court that this part of the transaction sustained the defense of usury interposed in this action. And it has been strenuously urged by the defendant’s counsel that such effect should be legally given to the agreement made concerning this sum of $5,000 and the payment of it to Martin & Leask, the lenders. And authorities have been brought to the attention of the court-which are supposed to maintain this view, but they very essentially and materially differ from the facts of this case.

In Eagleson v. Shotwell (1 Johns. Ch., 536), it was made-, a condition of the loan that the borrower should take for part of it, shares in an insurance company which had failed.

In Rose v. Dickson (7 Johns, 196), the tranaction was in part in depreciated shares of turnpike stock. And so it was in Seymour v. Strong (4 Hill, 255), where the stock received for one-half the loan, was worth but seventy-five per cent of its par value.

In Pratt v. Adams (7 Paige, 615), the borrower received bills of exchange at a greater sum than their actual value.

In Dry Dock Bank v. Am. Life Ins. Co. (3 Com., 344), certificates, or post notes, of the lender were received of a, less value than an equal sum of money.

In Stuart v. Mechanics’ Bank (19 Johns., 499), the stock substituted was below par. And the transactions "were-legally of a like description in Gillett v. Averill (5 Denio, 85), Stockwell v. Richardson (2 Cent. Rep., 425), Knickerbocker Life Ins. Co. v. Nelson (78 N. Y., 137), Byrnes v. Labagh (25 Wk. Dig., 461), and Wyeth v Braniff (84 N. Y., 627).

But this was not such a transaction as the courts in either of these instances held to be usurious, for the reason that the lenders received for the loan and forbearance of the money, in further, or additional pecuniary advantage-than was secured to them by the bonds and mortgages. Vanderlip stated himself to be solvent and responsible. And this evidence, together with that relating to the preference of the acceptances in the assignment established the-fact to a reasonable certainty that the indebtedness of Vanderlip and Deane to the lenders, was capable of being collected, and that the payment of this sum of $5,000 to them secured no other or greater advantage for the loan of the money, than that which they were entitled to under the statute regulating the legal rate of interest.

If the preference in the assignment was in any respect precarious the risk was upon Vanderlip himself, and it was he, and not the lenders of the money, who would in that case be benefited by the payment of this sum of $5,000 on the acceptances. They received no more than they had the legal right to demand both from Vanderlip and Deane. And as Deane had the authority from his wife to use the money as he needed it, he could legally apply this portion of the loan to the payment of his acceptances, which were unquestionably just obligations against himself. And making the application of the $5,000, as it was made, inasmuch as it brought to the lenders of the money no additional advantages, could not render the loan usurious.

As the lenders were justly entitled to the payment of the moneys owing to them upon the acceptances of Mr. Deane, his wife could legally have executed and delivered a mortgage to them to secure the payment of a part or the whole of the indebtedness evidenced by the acceptances of her husband. If she had given such a mortgage it would have been for its full amount perfectly valid and available to the creditors. The law would sustain such a transaction beyond controversy. And as long as that would be its legal effect, 'it would seem to be no less a lawful disposition of the money to appropriate $5,000 of the loan to the payment of the same indebtedness. The result would be the same whether she assumed and secured the debt, or whether under her authority so much of the money was taken and applied towards its satisfaction, for it was no more than the appropriation of the amount to the payment of a legally equivalent indebtedness. And as her husband was designed to be the recipient of the money as a loan to himself, and the acceptances were his indebtedness, he could very well stipulate in the manner in which he did for the use which was made of this sum of $5,000. To constitute usury, it has been held that some consideration in addition to the lawful interest must proceed from the borrower. Clarke v. Sheehan, 47 N. Y., 188. But here there was no such addition to the lawful interest. The lenders by no possibility were secured or received more than the lawful rate of interest, and without that no ground existed for characterizing the transaction as usurious.

It was in the first instance subjected to some suspicion by reason of the circumstance that the loan was not made, and the securities were not taken, in the names of the actual lenders, but that was explained by Leask in the course of his evidence consistently with the legality of the transaction. His testimony was that he desired to avoid the criticism or censure to which he might be subjected by his business acquaintances for loaning money to an individual who appeared to have become bankrupt as Deane was stated to be. That is stated to have been the inducement for making the loan in the name of the plaintiff, who was the aunt of Leask, and not that it was a device to avoid the effect of the statute and secure a greater than the lawful rate of interest. And as this was not controverted, .and no motive appeared for misrepresenting the fact otherwise than it was, the evidence may very well be accepted .as a truthful explanation of this circumstance. As the facts were established at the trial the defense of usury was not sustained. And as this court has been required to re-. view the evidence upon the appeal, and it is found to fall short of maintaining the defense, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.


author: Brady, J.

text:
    The People, etc., Resp’ts, v. Benjamin J. Hill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    •Oleomargarine—Section 8, chap. 188, Laws 1885—Constitutionality op—Power op the legislature.
    The object of the law is to protect the public from any imposition. The effect of the provision making the possession of colored oleomargarine conclusive evidence of an intent to sell it for butter the product of the dairy, is to impose upon the dealer the obligation of ascertaining whether or not it h:is been colored so as to resemble butter, the addition of the coloring matter being in itself an element of fraud and the manufacture therefore when coloring matter is introduced being a fraud per se. When the protection of the public is involved, from a fraud that may be perpetrated, the action of the legislature is discretionary as to the rules by which the mischief may be avoided unless in conflict with some declared and plain provision of the constitution. The law in exacting from the possessor of oleomargarine such scrutiny as to prevent a wrong is neither unjust, oppressive nor unconstitutional.
    Appeal from judgment upon trial at circuit.

      Albert Beynaud, for app’lt; William P. Quin and Edward B. Thomas, for resp’ts.
   Brady, J.

This actiop. was brought to recover the penalty provided for in section 19 of chapter 183 of the Laws of 1885. That statute by its eighth section declares that no one shall make or keep with intent to.sell for butter, or sell with like intent any substance resembling butter, unless made from pure unadulterated milk or cream. The penalty imposed is $500. The proof was that the substance sold by the defendant was oleaginous, not produced from milk or cream, but made in whole or in part from animal fats or oils and not produced from unadulterated milk or cream, and was colored so as to resemble butter the product of the dairy.

Section 8 of the act mentioned declares that if any person shall coat, powder or color with annatto, or any coloring matter whatever, butterine or oleomargarine, or any compounds of the same, or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils not produced from unadultered milks or cream, whereby the said product, manufacture or compound shall be made to resemble butter or cheese, the product of the dairy, or shall have the same in his possession,, or shall sell or offer for sale or have in his possession any of the said products which shall be colored or coated in semblance of or to resemble butter or cheese, it shall be conclusive evidence of ah intent to sell the same for butter or cheese, the product of the dairy.

And section 19 provides that for a violation of the section just mentioned he shall, in addition to the fines and penalties prescribed for each offence forfeit and pay a penalty of $500.

The plaintiff established the possession and sale of the prohibited article, and presented a case in all respects in compliance with the statute relating to the subject. The defendant sought to show that he did not know the nature of the product, and did not intend to sell the same for butter; but the court, to use the language of the case, felt bound to hold the color clause and conclusive evidence clause of the section (section 8) to be constitutional and to be conclusive of any question of innocent intent or ignorance of fact on the part of the defendant.

The question presented, therefore, is whether or not the provisions of section 8, by which the possession of the colored substance is made conclusive evidence of an intent to sell the same for butter, is constitutional.

All the propositions submitted on behalf of the defendant, and all the points presented upon the trial and upon the argument lead to this result. The court of appeals have very recently, in fact during the last month, in the case of People v. Arensberg, treating the subject e con-verso, said:

It cannot be claimed that the producers of butter made from animal fats or oils, have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter, or that it is beyond the power of the legisture to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive.

The coloring of the margarine, so as to resemble butter, the product of the dairy, it was shown upon the trial, was calculated to deceive, and the conclusive evidence clause already referred to must be regarded as designed to prevent such deception. The principle, it may be added, which must govern this case is enumerated in the case of Phelps v. Racey (60 N. Y., 10), in which it is said that the legislature may pass many laws, the effect of which was to impair or even destroy the right of property, and that private interest must yield to the public advantage; and further, that all legislative powers not restrained by express or implied provisions of the constitution may be exercised.. The question involved in that case related to the preservation of game, and it was said that the measures best adapted to that end was for the legislature to determine and courts-would not review its discretion. If the regulations operated, in any respect, unjustly or oppressively, the proper remedy must be applied by that body, and that, although some of the provisions of the act might seem to one unversed in the mysteries of the subject, to be unnecessarily stringent' and severe, the court could not say that those involved in that action were foreign to the object sought to. be attained, or outside of the wide discretion vested in the legislature.

The object in view in passing statutes so stringent in their nature as those in reference to oleomargarine was to protect, by all possible safeguards, any imposition upon the-public by the sale of that manufacture for butter, against which it can readily be understood a multitude of provisions might be enacted affecting the right of property and changing the rules of evidence. The effect of the provision making the possession of colored oleomargarine conclusive-evidence of an intent to sell it for butter, the product of the dairy, is to impose upon the dealer the obligation of ascertaining whether or not it has been colored so as to resemble butter, the addition of the coloring matter being in itself an' element of fraud, and the manufacture therefore when-coloring matter is introduced being a fraud per se. When the protection of the public is involved from a fraud that may be perpetrated, the action of the legislature is discretionary as to the rules by which the mischief may be avoided, unless in conflict with some declared and plain-provision of the constitution. Considered as an abstract proposition it does not seem oppressive to require, from a dealer in an article calculated to deceive, the utmost protection against such a result, and to subject him to penalties for neglect or omission of his duty to this respect. His transactions are with the public and should be at all times marked by good faith, whether connected with oleomargarine or any other subject, and in exacting of him such. scrutiny as to the article of oleomargarine as to prevent a wrong, is neither unjust, oppressive, nor unconstitutional.

For these reasons we think the judgment appealed from should be affirmed.

Van Brunt, P. J., and Daniels, J., concur.


author: Bartlett, J.

text:
    Edmund Kimball, App’lt. v. Aaron A. De Grauw, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887,)

    1. Affidavit—What is not an adoption of the statements contained in.
    In an action to establish a trust in reference to real and personal property the writings relied on to prove the declaration of trust were an aflida-. vit made by this plaintiff, and one made by this defendant in which it was claimed this plaintiff’s affidavit was adopted. Held, That reference made in the defendant’s affidavit to that of the plaintiff was in no way an adoption of the statements contained in the latter or an affirmance of their truth.
    3. Declaration of trust—Writing insufficient to constitute cannot BE ASSISTED BY PAROL.

      Held, That the writing being insufficient to establish a trust could not be helped out by parol proof.
    3. Finding on conflict of evidence—Should not be disturbed on APPEAL.

      Held, That the finding of the trial judge upon a conflict of evidence should not be disturbed on appeal.
    Appeal by plaintiff from judgment at special term dismissing complaint on the merits.

      George W. Stephens, for app’lt; Edward S. Clinch, for resp’t.
   Bartlett, J.

The plaintiff sought to establish a trust in reference to real and personal property.

The real property consisted of the premises No. 180 Schermerhorn street, in the city of Brooklyn.

The writings relied upon to prove a declaration of trust on the part of the defendant, were two affidavits used in a criminal proceeding in 1874.

The first was the affidavit of the plaintiff, the material portion of which is as follows: “Edmund Kimball of the city of New York, being duly sworn, deposes and says, that he is acquainted with Aaron De Grauw, and that the said De Grauw purchased house No. 180 Schermerhorn street, Brooklyn, which belonged to my wife, under foreclosure and sale by the sheriff of Kings county, said De Grauw agreeing with me after receiving the purchase money and the amount of any encumbrances on the house, and interest, expenses and costs, on such houses being sold, that he would pay me the difference, if any.”

This statement by the plaintiff is said to have been adopted by the defendant in an affidavit subsequently made by him, in which referring to the plaintiff’s affidavit, the defendant swore “The paper marked 0 is a copy of an original affidavit in my possession, sworn to by Edmund Kimball, June 6th, 1873.”

But the contents of both these affidavits taken together do not amount to a writing declaring a trust in lands, and subscribed by the party declaring the same, as required by the statute of frauds (3 Rev. Stat. 7 ed. 2326, section 7). The reference to the plaintiff’s affidavit in the affidavit of the defendant is in no way an adoption of the statements in -the former, or an affirmance of their truth; and the writing being insufficient to establish a trust, it cannot be helped out by oral proof. Cook v. Barr, 44 N. Y., 156, 161.

The personal property which was the subject of the alleged trust, was certain furniture in the house No. 180 Schermerhorn street.

As to this, the plaintiff testifies in substance, that the defendant agreed to take it on the same trust as the house, while the defendant positively denies making any such agreement, and asserts that he himself owned the furniture. There is a direct conflict of evidence on the subject, and the conclusion of the trial judge, who saw and heard the parties, should not be interfered with, although it does not clearly appear what was the real consideration for which the defendant acquired the furniture.

The exception to the admission of evidence that the plaintiff’s wife claimed to own the furniture is of no' importance. The plaintiff himself dealt with the furniture as belonging to his daughter, but the ownership is immaterial, so far as this action is concerned, if there was no trust.

The judgment should be affirmed, with costs.

Van Brunt, Oh. J., and Macomber, J., concur.


text:
    William C. Hussey, Resp’t, v. John J. Coger, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Negligence—Damages fob—Who occupies the position of master BATHER THAN FELLOW-SERVANT.
    In an action brought by a servant to recover damages resulting from the negligence of the foreman or superintendent of the defendant, his employer. Held, that under the circumstances the foreman bore toward the plaintiff rather the relation of master than that of fellow-servant.
    2. Charge to jury—-When rules of law are once charged they need NOT BE ILLUSTRATED AT THE REQUEST OF A PARTY.

      Held, that the judge having property charged the jury as to the rules governing the case, was not obliged to illustrate those rules by charging as the defendant requested.
    8. Same—Negligence on plaintiff’s part must be contributory to VITIATE CLAIMS.

      Held, that the negligence of the plaintiff to vitiate his claims for damaees must be such as contributed to the accident.

      4. Exceptions to be heard in first instance at general term—Order DENYING IS NOT APPEALABLE.

      Held, that an order denying a motion that exceptions be heard in the first instance at general term was not appealable.
    Appeal by defendant from judgment entered on the verdict of a jury at circuit, from order denying a motion for a new trial, and from order denying a motion that the exceptions be heard in the first instance at general term.

      Charles W. Dayton, for appl’t; Frank E. Blackwell, for resp’t.
   Bartlett, J.

This case has been before the general term on a previous appeal. 39 Hun, 639. Mr. Justice Davts then said that Gray, the foreman or superintendent, was properly regarded by the trial as holding the relation of master rather than that of fellow-servant to the plaintiff. “Upon the evidence,” he added, “it was undoubtedly an improper thing for one person to attempt to take up the hatch, by the falling of which the plaintiff was injured; and if Gray ordered Babcock alone to remove the hatch, he made the defendant responsible for the injury that happened to the plaintiff by reason of using inadequate power to perform the act.”

This being the law of the case, as settled on the former appeal, the learned judge who presided on the trial now under review, properly denied the motion to dismiss the complaint, and, also, the motion to direct a verdict for the defendant.

We find no error in the rulings as to the admission or exclusion of evidence, to which our attention is called in the brief of appellant’s counsel.

As to to the instructions requested by counsel or actually given to the jury we notice but one exception to which it is necessary to refer. This is the exception to refusal to charge the defendant’s fifteenth request, which was in these words:

“If the circumstances point just as much to negligence of the plaintiff as to its absence, or point in neither direction, the plaintiff cannot recover.”

It may be observed that in order to make this proposition strictly correct the negligence of the plaintiff should have been defined to be negligence contributing to the injury. But even if the instruction would have been proper, we do not think this judgment should be reversed for the refusal to charge as requested. The court had already charged the jury as follows:

“ In this class of cases it is a general principle of law that in order to entitle himself to a verdict the plaintiff must satisfy the jury by a preponderance of evidence, that the injury happened from the negligence of the defendant, and without any negligence of his own which contributed. That burden in this case rests upon the plaintiff Hussey, and he must convince you of both of these propositions, not either the one or the other, because if the defendant was not negligent, then he is not liable, and if the defendant was negligent, but Hussey was negligent in a way which contributed to his injury, the defendant would not be liable.” And subsequently at the request of defendant’s counsel, the court charged still further: “That plaintiff must show that the injury received by him was caused solely by the negligence of the defendant, and that he did not contribute in any way by his own acts or carelessness to the injury complained of.”

The jury were thus clearly informed that the burden of proving absence of contributory negligence was upon the plaintiff and that he must establisn his own freedom from negligence contributing to the injury, by a preponderance of proof. The court was not obliged to state the rule, or illustrate it, in the precise form desired by counsel, so long as the law was correctly given to the jury independently of the request.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

In our opinion, the order denying the defendant’s motion that the exceptions be heard in the first instance at general term, is not appealable. Beattie v. Niagara Savings Bank, 41 How. Pr., 137.

The appeal from that order should, therefore, be dismissed, with costs.

Van Brunt, P. J., and Lawrence, J., concur.


text:
    The Metropolitan Concert Company (Limited), Resp’t, v. Howard A. Sperry et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    1. Chattel mortgage—Personal property—Character unaffected BY WHAT.
    The fact that chairs placed in a theatre are secured to the floor by screws two and a half inches in length does not deprive them of their character of personal property, and they may properly be made the subject of a chattel mortgage to secure part of their purchase price.
    2. Same—Construction of clause in.
    The lease of a theatre provided that at the end of the term all additions, alterations and improvements made upon the premises should remain a part thereof and should be surrendered to the lessor at the expiration or termination of the term demised. Held, that reading this provision, in conjunction with other clauses of the lease, it was apparently not the intention that other additions, etc., than those made to the building itself should be included under this clause.

      :§ Same — To secure payment oe purchase price — Rights oe mortgagee

      Held, That in case the clause referred to was actually intended to include furniture of the class above mentioned, the right of the mortgagee was superior to that of the landlord.
    Appeal from a judgment recovered on the verdict of a jury

      W. B, Putney and Chas. E. Chase, for app’lts; Eugene Seligman, for resp’t.
   Daniels, J.

The verdict was rendered for the value of a thousand and ten chairs placed in the Cosmopolitan Theatre, at the corner of Broadway and Forty-first street, in the city of New York. They were placed in the theatre under an agreement made with Sylvester M. Hickey, who was its lessee from the plaintiff, under a lease made on the 15th of December, 1882, for the period of six years seven months and seventeen days, from the 13th of February, 1883.

By this agreement Cornelius B. Demarest undertook to provide and place the chairs in the theatre for which Hickev, the lessee, was to pay one-third in cash, and the balance in three, four, five and six months, for which notes were to be given and secured by a chattel mortgage on the chairs. The chairs were substantially placed in the theatre by the 12th of February, 1883, although some work was done there to complete them afterwards. And on the 24th of that month the tenant gave his mortgage on the chairs to Demarest the manufacturer, to secure the payment of the unpaid purchase price. And that he could very well do as the chairs Were fastened to the floor only by iron screws, about two and a half inches in length, which did not deprive them between these parties, of their character as personal property. Murdock v. Gifford, 18 N. Y., 28; Tifft v. Horton, 53 N. Y., 377.

The debt secured by this mortgage was not paid and the mortgagee assigned it to Robert W. Reid, one of the defendants, and he, together with the other defendant, removed the chairs from the theatre under the mortgage. The plaintiff denied their right to make this removal under the lease given to Hickey, the mortgagor. The clause in the lease upon which they placed their denial, and which was held sufficient at the trial to entitle them to maintain this action, declared that any and all additions, alterations and improvements that shall or may theretofore have been made to the said premises, or any part thereof, shall be and remain a part thereof, and shall and will be surrendered and left therein at the expiration, or sooner determination of the term hereby granted, without any claim for compensation on account thereof, on the part of the said party hereto of the second part. What this was designed to include as additions, alterations and improvements, was-not clearly expressed in the lease, but it was probably intended to refor to no more than what had been provided for in its first sub-division, wherein the assignee agreed to cause such alterations, additions and improvements to be-made to the premises as should convert them into a theatre,, with a suitable gallery or galleries, with a seating capacity of at least 2,200 persons in the auditorium thereof.

This related to alterations and changes in the building itself, and the size and extent of the auditorium to be affected by such changes. It was not declared that the furniture placed in the auditorium should become the property of the lessor, but that these alterations, additions and improvements requisite to secure' this object should remain and become a part of the premises. It was the seating-capacity which was provided for as indicating the extent of the enlargement to be made, and, not the seats themselves,, which were the object of these provisions contained in the-lease. Such additions and improvements could very well be provided for as permanent additions and changes in the-leasehold premises themselves, while such articles as chairs for the convenient enjoyment of the premises after they had been altered and changed, would not be included and made a part of the landlord’s property without a more clear expression of that design than was inserted in this lease.

But if this lease is to be construed as including furniture added in this manner to the building, the right of the plaintiff to the chairs was inferior to that of the manufacturer, and his assignee under the mortgage. It was the agreement of the parties to the transaction that two-thirds of the purchase price of the chairs should be secured by a chattel mortgage, to be given upon them by the purchaser. That was not only an implied,' but it was in the nature of an express condition of the sale. The purchaser was to receive and acquire the property in the chairs in no other-manner, and the manufacturer and seller had the right to insist upon the performance of this condition before the tenant, or the landlord, would be entitled to retain the chairs in the the theatre. And that the manufacturer did not at any time dispense with the performance of this condition was quite clearly proved upon the trial. There was no intent to waive its observance, neither was any claim at-any time made on the part of the tenant that he could re tain the 'property, without securing this part of the purchase price by the execution and delivery of the mortgage. And as soon as that was prepared, and he could be found for the purpose, he executed the mortgage, and it was filed in the registrar’s office, as that has been required to be-done, on the 23d of February, 1883. And that mortgage,. as it was given in part performance of the agreement for the purchase of the chairs and under which alone they were delivered, became a valid security upon the property not only against the purchaser, but also against the plaintiff itself. Husted v. Ingraham, 75 N. Y., 251.

The facts of that case in their essential effect were very much like those in the present action, for there the property was delivered under an agreement that a mortgage should be executed to secure its price, but it was not in fact given until about one month after the property had passed into the possession of the mortgagors. But in reference to the effect of the mortgage, it was said by the court: “ That the referee went too far in holding that the plaintiffs had no lien upon the property. The carpets having been delivered under an agreement that the price should be secured by a mortgage thereon, that agreement could have been specifically enforced in equity, and constituted an equitable Hen upon the property as against J. E. Miller & Co. and all persons claiming through, or under them’ except bona fide purchasers, having no notice of the lien.” Id., 257.

This rule fully sustained the mortgage given upon the chairs, and it is not affected by anything which was said in Comer v. Cunningham (77 N. Y., 361), for there the title of a purchaser for value had intervened, which was held to be superior to the rights of the vendor of the property. That case has no effect or control over this transaction, neither have the others which have been cited in support of the judgment, for the plaintiff at no time became a purchaser of these chairs for value.

It advanced nothing m reliance upon the tenant’s title, but derived its right, whatever it was, wholly under the provisions of the lease, of which the vendor had no notice up to the time of the execution and delivery of the mortgage. This was an agreement wholly between the purchaser and the plaintiff, antecedently made, having no force as a contract against the manufacturer and vendor of the chairs, as long as they were placed in the theatre under the specific agreement proved in the case and the performance of its terms had in no manner been waived or dispensed with by him.

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

Van Brunt, Oh. J., concurs.


text:
    Charles G. Landon et al., as Ex’rs, Resp’ts, v. Mary N. Townshend et al., Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1887.)

    Assignee in bankruptcy—Mortgage foreclosure —What effectual TO FORECLOSE TITLE.
    In an action for ejectment the title to the premises subject of the suit was shown by the plaintiffs to have vested in an assignee in bankruptcy. It being material for the defendant to show that he had subsequently been divested of such title, the judgment roll in foreclosure proceedings in which he was made a defendant and in which it was claimed that any interest which he had in the land as assignee was introduced in evidence. In that, however, he was simply named as defendant in his individual capacity and was not officially designated. The complaint, however, alleged that he had, or claimed to have, some interest in or claim upon the mortgaged premises which was subsequent to that of the plaintiff under the mortgage. There was no evidence that he had any interest save as assignee, and that .was subsequent to that of the mortgagee. Held, that by such proceedings his title as assignee was effectually foreclosed.
    Appeal from judgment entered on the report of a referee.

      John Toiunshend, for app’lts; E. H. Landon, for resp’ts.
   Bartlett, J.

This is an ejectment suit in which the defendants introduced no evidence but relied solely on the weakness of the plaintiff’s case.

According to the plaintiffs, the title to the premises in question at one time became vested in W. Coventry H. Waddell, as the assignee in bankruptcy of one Ebenezer L. Williams. It was material td the plaintiffs to show that the assignee was subsequently divested of the title.

To prove this, they introduced the judgment-roll in a foreclosure suit in which Waddell was a defendant, and in which it is claimed that any interest he had in the land as assignee was foreclosed. In that suit, however, Waddell was simply named as a defendant in his individual capacity, and no reference to him as assignee in bankruptcy appeared in the title of the action or anywhere else in the record. The appellants argue that Waddell could not have been divested of the estate in bankruptcy by the judgment in a case in which there was nothing to show that he was sued in his official character. The allegation in the complaint in the foreclosure suit was that the defendant Waddell had or claimed to have some interest in or claim upon the mortgaged premises, which interest or claim was subsequent to that of the plaintiff therein, upon the mortgage. There is no evidence in the present case that he had any other interest save as assignee in bankruptcy. Here, therefore, as in the case of Wagner v. Hodge (34 Hun, 524), “it is to be presumed that he was made a party to the foreclosure, and that he himself so understood the fact to be, to obtain all his interest in the property as assignee.” Such interest was clearly subsequent to the mortgage, and as Waddell appears to have had no other interest, we think the judgment should be deemed effectual to foreclose it.

The suit in which this judgment was obtained was brought to cure the defect in previous proceedings to foreclose the same mortgage, arising out of the omission to make Wad-dell a party defendant. The complaint alleged that these proceedings were instituted in the late court of chancery by one Edward H. Price, on or about December 1, 1838, but that Waddell was not made a party, although he had theretofore became seized of an interest in the premises. The appellants argue that this shows that Waddell’s interest was acquired prior to December 1, 1838, which was before Williams was adjudicated a bankrupt (1843), and even before the passage of the bankrupt act. But it is apparent that the date, December 1, 1838, was an error; for the judgment roll in the Price suit is in evidence in the present case, and shows that proceedings therein were begun, not in 1838 but in 1845. We are satisfied, therefore, notwithstanding this erroneous allegation in the complaint in the second foreclosure suit as to the time when Waddell acquired an interest in the premises, that he claimed no interest except as the assignee in bankruptcy of Ebenezer L. Williams; and that he was divested of such interest by the judgment therein.

It is not necessary to discuss the other questions arising on the appeal, as they are satisfactorily disposed of in the opinion of the learned referee who tried the cause (now Mr. Justice Patterson of this court).

Judgment affirmed, with costs.

Daniels and Brady, JJ., concur.