text:
    GEORGE J. PENFIELD and others, Executors, etc., Appellants, v. WILLIAM W. GOODRICH, Impleaded with others, Respondent.

      Oomeya/nee subject to mortgage — effect of agreement by mortgagee to extend time of payment.

    Where a mortgagee enters into-an agreement with one to whom the property has been conveyed subject to the mortgage, extending the time of payment thereof, he does not thereby release the mortgagor from his liability upon the bond executed at the time of the giving of the mortgage.
    Appeal from a judgment entered upon the report of a referee.
    This action was brought for the foreclosure of a mortgage upon real estate. The mortgage and the bond accompanying it were executed by the defendant William W. Goodrich on the 18th day of December, 1871, to the Knickerbocker Life Insurance Company, to seeuré the payment of $5,000 and interest and were assigned by that corporation to the plaintiffs, as executors, on the 17th day of September, 1873. The complaint, as amended, was in the usual form, and contained a prayer for judgment for deficiency (if any) against the defendant Goodrich, who answered, alleging that after the execution of the bond and mortgage he sold the property subject to the mortgage, and that the same subsequently passed by several mesne conveyances to one Mary A. Yan Alen; and that thereafter, by an agreement between the plaintiffs and said Mary A. Yan Alen, the time for the payment of the principal of the bond and mortgage was extended without his knowledge or consent.
    ■ The issues having been referred the cause was tried before the referee, who reported granting to plaintiffs a judgment of foreclosure and sale, but refusing to allow a judgment for a deficiency against the defendant Goodrich, on the ground that the time for the payment of the mortgage had been extended without his knowledge or consent.
    Judgment having been entered in accordance with the report, the plaintiffs appealed from so much of the same as adjudged that an agreement to extend the time was made, and that the defendant Goodrich was released thereby. Also from an order denying a motion for a new trial.

      Wm. G. Nicoll, for the appellants.

      Wm. W. Goodrich, respondent, in person.
    The extension and alteration of the bond discharged the bondsman. (See Bcmck&i' v. Mayor, 8 Hun, 409; QaT/oo v. Dames, id., 222; Thorp v. The Keolmk Goal Go., 48 N. Y., 258; Nichols v. Ash, 3 N. Y. Weekly Dig., p. 10, Aug. 14, 1876.) The land is the primary fund for the payment of the mortgage, and any dealing which puts it out of the power of the mortgagee to proceed against that fund, discharges the bondsman who stands in the light of a surety. (Jvmel v. Jvmel, 7 Paige, 591; Harris v. Jex, 66 Barb., 232; Freeman v. Auld, 44 N. Y., 50; Nichols v. Ash, above cited.)
   Gilbert, J.:

It is of the essence of suretyship that there be a principal obligation, for the performance of which the surety has undertaken. Nor can a person at the same time bear toward his creditor the relations both of principal debtor and surety. In this case the bond and mortgage were made by Mr. Goodrich. Afterwards he conveyed the mortgaged premises subject to the mortgage, and through several mesne conveyances the title to the premises has become vested in Mrs. Yan Alen, the present owner; but neither of these grantees assumed or became personally bound to pay the mortgage debt. The bond of Mr. Goodrich is the only personal obligation held by the plaintiffs for the payment of the indebtedness due them. A grantee of land subject to a mortgage incurs no personal liability to the mortgagee. The conveyances in this case, therefore, had no effect upon Mr. Goodrich’s liability upon his bond. By that instrument he became the principal and only debtor, and such he has ever since continued to be. If the grantee, in his conveyance, referred to, had assumed the payment of the mortgage debt, a different question would have been presented. In such a case, it might properly be contended that such grantee, by his assumption of the payment of the mortgage debt, had become the principal debtor, and that the liability of Mr. Goodrich had been changed to that of a surety merely. Whatever may be the rule of equity in such a case, we are clear that no such change is wrought by means of a conveyance of land subject to a mortgage. It is true that the land conveyed became the primary fund for the payment of the mortgage debt, so that in case Mr. Goodrich pays the debt, he will, in equity, be subrogated to the rights of the plaintiffs as mortgagees. But those rights will belong to him, not because he is a surety, but because he has discharged a debt which is a lien upon land conveyed by him subject thereto, and it is but just and equitable that, having paid the debt for which the land is primarily bound, he should be substituted in the place of the creditor, and succeed to his rights.

There is, it must be confessed, much similarity in the position of Mr*. Goodrich to that of a surety, and if the land could be indued with the qualities of a person, the analogy would be complete. But the rule which discharges a surety on account of the creditor’s dealings with the principal debtor has not, to my knowledge, been applied, except in cases where the technical relations of principal and surety existed. Even where the contract is in form one of suretyship, and the obligation of him who is nominally the principal debtor is voidable or void for lack of capacity to contract, as in the case of infants and married women, the surety has been held liable at law as upon an original undertaking. (Harris v. Hwntbach, 1 Burr. 373; Kimball v. Newell, 7 Hill, 116; Erwin v. Downs, 15 N. Y., 575.) And there appears no reason why equity should not follow that rule. If the bond in suit had been given after the conveyance to Mrs. Van Alen, for her benefit, and she had made the mortgage, there would have been no reasonable ground for claiming that Mi’. Goodrich’s liability was aught but that of a principal debtor. In that case, as in this, the land would have been primarily bound, but that fact would not have clothed Mr. Goodrich with the character of a surety, nor altered the legal effect of his bond, and we see no reason why it should have that effect in the ease before us.

This conclusion renders it unnecessary to examine the other questions presented.

The part of the judgment appealed from and the order refusing a new trial should be reversed, and a new trial should be granted, with costs to abide the event.

Present — Gilbert and Dykman, JJ. Barnard, P. J., not sitting.

Part of judgment appealed from reversed, and new trial granted at Special Term, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    AUGUST MULLER, Respondent, v. JOHN McKESSON and DANIEL C. ROBBINS, Appellants.

      Ferocious animals —■ liability of owner of.

    The plaintiff, who was employed in the defendants’ factory, while passing through the yard, early in the morning to admit the other operatives to the factory, was attached and severely injured by a large Siberian bloodhound, owned by the defendants, and of whose vicious habits and dangerous character they had full knowledge. The dog was kept chained during the day, and let loose at night; it being the duty of the defendants’ engineer to chain him up before the workmen were admitted.
    Upon the trial of this action, brought to recover damages for the injuries so sustained, it was insisted that, as the accident occurred through the negligence of a co-servant in omitting to chain up the dog, and as the plaintiff had knowledge of its vicious habits, he could not recover. Held, that the defense was properly overruled.
    Duties and liabilities of owners of ferocious and vicious animals considered.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.

      Oha/rles S. Mwnck/, for the appellants.

      F. A. Woo'd, for the respondent.
   Dykman, J.:

This is an action to recover damages for the bite of a dog. The plaintiff was in the employ of the defendants in their chemical factory in the city of Brooklyn, where they kept a large Siberian bloodhound as a watch dog. The dog had been purchased for the defendants by their superintendent a short time before he bit the plaintiff, and was kept in the yard of the factory, chained by day and loose by night. It was a part of the duty of the plaintiff to open the gate of the factory yard in the morning, for the purpose of admitting the operatives into the yard and factory. On the morning of October 21, 1813, as the plaintiff was returning from the gate after opening it, he was attacked by this dog, thrown to the ground bitten on his posterior, on his arm, and on his ear; the lacerations were quite deep and severe, and the injuries were quite painful. The dog had before this bitten the superintendent of the defendants, and he had informed the general agent of the defendants of the fact, and when the superintendent purchased the dog for the defendants he was told that the dog was bad and would bite. After the plaintiff was bit he was attended by a physician until he was convalescent, but his hand is permanently disabled.

The cause came on to be tried at the Circuit, and the foregoing facts were entirely uncontradicted. At the close of the testimony, the court decided that the defendants were liable, and that the action was made out against them, and refused to submit any thing to the jury except the question of damages. That question was submitted to the jury, and a verdict was found in favor of the plaintiff for the sum of $1,500.

The defendant has appealed from the judgment entered upon the verdict, and has made no application for a new trial either on the minutes or at Special Term. Only questions pf. law, therefore, can be examined, and the questions which must be examined and determined are, is the plaintiff entitled to recover in the action, and did the judge at the Circuit do right in refusing to leave any question to the jury, except the question of damages?

The common law of England and America has established a doctrine in relation to the rights, duties and liabilities of the owners of domestic animals, which is wise and just and even-handed in its operation, both as to society and individuals. By this law dogs, horses, and all animals which are domestic in their nature, are placed on the same ground, and any person may keep any of them for his use, his pleasure or his protection, or for.any lawful purpose that his tastes or inclinations may dictate; and such keeping is perfectly lawful until some vicious propensity is developed and brought to the knowledge of the owner; but after such development and such knowledge the owner is liable for all the injuries which the animal may perpetrate in obedience to such propensity.

A distinction is made between animals ferae naturae, of a ferocious or mischievous nature, and animals mcmsuetce natyu/rce, of a ferocious and mischievous disposition. In relation to the former, if they are liable to-attack or injure human beings, a recovery can be had against the owner for an injury by them without proving the scienter, while in relation to the latter no recovery can be had without proving previous knowledge of the vicious propensity of the animal. The same legal rights exist to keep animals of the former kinds as of the latter, the only difference being that as to the first the owner is amenable without notice of their vicious propensities, while as to the latter notice or knowledge is required; and the justness of this distinction is obvious at once. Domestic animals are kept for the pleasure and profit and the comfort and convenience of mankind. Their natures are not ferocious; on the contrary ferocity is the exception to their general habits and disposition, which are generally kind and confiding, and not uncommonly even affectionate, obedient and patient.

“Tbe ox toils through the furrow Obedient to the goad;
The patient ass, up flinty paths, Plods with his weary load.
With whine and bound the spaniel . His master’s whistle hears;
And the sheep yields her patiently To the loud clashing shears.”

As therefore the owners of these animals have no reason to apprehend that they will act in any way contrary to their domestic habits, and the docility and kindness of their disposition, he is under no obligation to confine them or take any measures to prevent them from doing injury to mankind, until he has notice or knowledge that they have developed some vicious propensity. Until then there is no principle of reason or justice upon which the owner can be made liable. He does no wrong himself, and he has no reason to apprehend that any wrong or injury will be done by his animal. But after he has notice or knowledge that his domestic animal has developed and disclosed a vicious or ferocious disposition to injure mankind or other domestic animals, then it is his duty, if he continues to keep the animal, to secure it in such a way as to render it incapable of mischief. Such, animal is then placed by the law on the same footing with a ferocious wild beast, so far as proving the scienter is concerned in an action for an injury which it perpetrates, and he must, at his own peril, keep it safe, for if it escape and do an injury the owner is liable, no matter what diligence he may have used to confine it. The negligence consists in keeping the animal after notice.

The knowledge which has been spoken of need not be an actual personal notice to the owner, but the knowledge of his servant or his wife may be sufficient to charge the owner with knowledge; and in one case it was held that a dog may be brought into court for the inspection of the jury on the question of disposition.

It is upon the same principle of law, that the owner is made liable for a trespass committed on land by his domestic animals. It is known to be the nature and disposition of such animals to roam, and it is therefore the duty of their owner to restrain them, and if he fails to do so he is liable for the trespass, even though he did not know that they had ever trespassed before.

The rules of law which have now been stated have become elementary and have been laid down and enforced in some very remarkable and pointed cases, both in this country and in England. The dogs have done more mischief than any other domestic animals and their cases have been oftener before the courts, and some judges have been inclined to the opinion that if a person chooses to keep a dog which is savage and dangerous, he does so at his peril and is liable for any injury he may do without any proof of scienter. There is great reason for holding this to be the rule, for in such a case the dog is in the class of animals that are of a ferocious nature and disposition, and ought to be looked upon the same as a lion, a tiger or a bear. It is not necessary, however, to go so far as that in this case for the testimony was ample to show that the owner of the dog had full notice of his vicious propensity. The person who sold the dog to the defendants’ superintendent testified that he told him this was an awful bad dog, that he bit everybody and everybody knew he was bad. This knowledge, together with the knowledge that the dog bit the superintendent, must be imputed to the defendants; and as this testimony was uneontradicted it fully established the scienter. It is true this is ordinarily a question of fact for the jury, but when the fact is fully established by testimony which is not contradicted it ceases to be a question of fact for the jury and becomes a question of law for the court. The same may be said about the injury. The testimony was uncontradicted that the dog did the mischief and that he belongs to the defendants. The entire testimony, then, upon which the recovery depended was uncontradicted, and left nothing to be done but for the court to determine whether the plaintiff was entitled by law to recover. This being so we think the court did right, under the rules which have been before stated, in determining that the plaintiff was entitled to recover, and that there was nothing for the jury but the question of damages.

A remaining question is, whether there was any thing in the relation which the parties occupied toward each which prevented a recovery % The dog was kept by the defendants in their factory yard as a watch dog, and it was proved that he was let loose at night and that it was the duty of the engineer to chain him up in the morning. The plaintiff was, at the time of the injury, in the employ of the defendants and the defendants now insist that, inasmuch as it was through the neglect of duty on the part of the engineer that the dog was loose and injured the plaintiff, the defendants are not liable within the cases which hold that the master is not liable for injuries to his servant, which result from the negligence of a co-servant. We have seen above that after the defendants had knowledge of the vicious propensities of this dog, it was their duty to keep him secure at their peril. Their liability after that did not rest upon any question of diligence or of negligence in keeping the dog secure. The negligence consisted in keeping him at all. If he got loose and did mischief after knowledge, they were liable on proof of the injury and of knowledge. Therefore, whether or not the engineer was negligent in not chaining up the dog was entirely unimportant. He was not secured and he committed the injury, and no proof of negligence was necessary. That question was not in the case at all.

It was also claimed that, inasmuch as the plaintiff knew that the dog was ferocious, he took the risk of injury by him by continuing in the defendants’ employ. In the law, the right of a person to keep a watch dog to guard his property is placed upon the same ground as the right to set a spring gun for the same purpose, and both these devices may be justified for the purpose of preventing a felony. But there is no rule or principle of law that will justify either of these devices, so far as a servant is concerned, in the legitimate discharge of his daily duties. The defendants had no right to submit the plaintiff to the danger of attack from the dog, and there was no implied obligation, on the part of the plaintiff, to take any such risk.

The foregoing views lead to an affirmance of the judgment.

Judgment affirmed, with costs.

Present — Barnard, P. J., and Dykman, J. Gilbert, J., not sitting.

Judgment affirmed, with costs.


text:
    In the Matter of ISAAC M. MARSH and others.

      Drainage of marsh lands — chap. 888, of 1869 — application for appointment of commissioners to appraise damages— Petition —• contents of.

    Chapter 888 of 1869, in relation to the draining of certain swamp lands in the town of Southfield, provided that if the commissioners appointed thereunder, could not agree with any person as to the compensation for lands taken for making and maintaining ditches, they “should proceed to acquire title to the easement upon and across the lands of such person in the manner, so far as the same is applicable, prescribed by the general railroad law of 1850.” Held,, that the commissioners were not required to set forth in the petition, presented to the court for the appointment of commissioners to appraise damages, the existence of all the facts which were required by the statute to authorize their appointment, but that it rested upon the parties objecting thereto to allege and establish the non-existence of such facts.

      Matter of the H. T. O. and, H. B. B. B. Go. (5 Hun, 86) followed.
    Appeal from an order appointing commissioners to appraise damages for the taking of certain lands under chapter 888, of 1869, providing for the draining of certain swamp lands, in the town of Southfield and county of Richmond. .

      Wmsor <& Ma/rsh, for the appellant.

      G. J. Greenfield, for the respondents.
   Dykman, J.:

Under and in pursuance of the provisions of chapter 888 of the Laws of 1869, Isaac M. Marsh, Richard Christopher and George M. Root were appointed commissioners to drain the lands within a certain district in the town of Southfield, in the county of Richmond. This law provided that if the commissioners could not agree with any person upon the compensation and damage for the lands taken, for making and maintaining forever the necessary ditches and channels, they should proceed to acquire title to the easement upon and across the land of such person in the manner, so far as the same is applicable, prescribed by the general railroad law of 1850, and the acts amending the same, and for the purpose of acquiring such easement, under the statute, the commissioners were given the powers granted to railroad corporations under the railroad law, so far as was necessary to acquire title to the easement, and no further.

Under this provision the commissioners presented a petition to the Supreme Court at Special Term, dated June 10th, 1875, in which they stated that in. the prosecution of the work of drainage it had become necessary to lay drains and channels for the passage of water over and upon the lands of various persons, and to obtain the easement for working suclrdrains and channels over these lands, and that, among others, it had become necessary to obtain such easement over and upon the several lots and premises described in the petition, and that the commissioners had been unable to agree with the owners of the lands upon the compensation and damages for making and maintaining such drains and channels. The petition then set out a particular description of the lands and premises upon which the easements were sought to be acquired, and prayed for the appointment of three commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate, upon and across which the said drains or channels were to be laid,

After a delay of more than one year the court made an order upon this petition, appointing three disinterested and competent freeholders residing in the county of Richmond commissioners, in pursuance of the prayer thereof, to ascertain and appraise the compensation which ought to be made to the owners and persons interested in the lands mentioned and described in the petition. This appeal is from that order, and is brought and presented, on the ground that the petition does not set out the proceedings of the drainage commissioners previous to the presentation of the petition. The position of the appellants seems to be that the petition must allege the performance of every act or thing, necessary to be done by the commissioners under the law; that all these must be alleged as traversable facts, and must be proved as alleged.

"We agree fully that every thing required to be done by these statutes, must be done strictly in accordance with their requirements. The right of eminent domain is a high prerogative right, to be exercised only by the sovereign power, either by a direct act or by the delegation of its power, and, when the power is delegated, it must plainly appear, and nothing must be taken by implication. "When the legislature provides that a private individual may be divested of his title to his property for public purposes in a particular way, the particular requirements must all be complied with, and the particular steps necessary must all be taken. Admitting all this, however, we do not see how the appellants are to derive any benefit from these rules. It is very true that many things are required by the statute to be done, before these commissioners can make an application to the court for the appointment of commissioners, to determine the compensation to be paid to the landowners ; but there is no requirement that all these things shall be stated in the petition for their appointment. So, many things are required to be done by a railroad company, before any application can be made to the courts for the appointment of commissioners to appraise the damages for the lands proposed to be taken. The petition is simply the foundation of the jurisdiction of the court to appoint the appraisers, and notice is required to be given of the time and place of its presentation to all persons whose estates or interests are to be affected by the proceedings, to the end that they may come in and show cause against granting the prayer of the petition, and disprove any of the facts alleged in it; they are not confined to disproving the facts alleged in the petition, but may show any cause against granting the prayer. If no cause is shown, then the prayer is granted, of course, not because the petition sets out every thing that has been done, but because no one shows any cause against granting the prayer, and the court assumes that there is none. The statute throws the burden of proof upon the objector; cause must be shown against granting the prayer. (Matter of New York Central and Hudson River Railroad Company, 5 Hun, 86.)

In this case, no cause was shown at all. The petition was presented, with proof of service, on all persons interested. No cause was shown, and the prayer of the petition was granted. The court could do nothing less. The land-owners might have appeared at the presentation of the petition and shown any failure to comply with the requirements of the law, either in respect to the matters stated in the petition or otherwise, and then the court would have refused to make the appointment until the law had been fulfilled. Not having done so, this appeal presents nothing to be corrected by this court, and the order appealed from must be affirmed, with costs and disbursements.

Barnard, P. J., concurred. Gtlbert, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    ALEXANDER TAYLOR, as Executor, etc., Respondent, v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY, Appellant.

      Life insv/ramce — ■ written aqmlication for ■ — when company com/rwt take advantage of o mistaJces in.

    The plaintiff's testator having applied to an agent of the defendant for an insurance upon his life, the agent applied to the medical examiner of the company for information respecting the applicant, and was informed by him that he was the physician of the applicant and knew of all the sickness he ever had; that he knew the man and his family record well; that it was unnecessary to wait to fill out a written examination. The physician had previously stated to the applicant that he had no disease which would stand in the way of his application. The same evening the agent, applicant and physician met together, when the latter again stated that the applicant was a sound man. Subsequently, and after 1¡he risk was accepted, the written application was filled out by the agent and signed by the applicant.
    In an action to recover on the policy so issued, the company defended, on the ground that the application stated that the applicant had had no ailment or disease within the last ten years, and that he had no medical attendant; while, in fact, he had a medical attendant, and had been sick for a couple of weeks, some years before, from a disease of the stomach. Reid, that the making out of the application must be regarded as the act of the company, and it could derive no benefit or immunity from any misstatement therein contained.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made at tbe Special Term upon a case and exceptions.

      John T. Pwigree, for tbe appellant.

      O. H. Wvnfield, for tbe respondent.
   Dykman, J.:

Tbis is an action upon a policy of life insurance, and is defended on tbe ground of misstatements and concealments made in tbe application for tbe insurance. Tbe insurance seems to bave been effected in tbe following manner: Tbe assured resided at Middle-town, Orange county, at wbicb place tbe defendant bad a local agent and a medical examiner, and on tbe 20th day of December, 1871, there was a general traveling agent of tbe defendant there also. Tbe former on that day made application to tbe agent of tbe company for insurance, and tbe agent applied to tbe medical examiner for information respecting tbe applicant and was told by him that be was tbe physician of tbe applicant, and knew of all tbe sickness be ever bad, and knew tbe man well, and knew bis family record, and that it was unnecessary to wait to fill out a written application, and that be would make tbe medical examination. A few hours previous tbe medical examiner told tbe assured in a conversation with him on tbe subject that be bad no disease wbicb would stand in tbe way of bis application. On tbe evening of tbe same day tbe assured, with other applicants, met tbe medical examiner and tbe agent to be examined, with three others. Tbe agent was in great haste to leave, and the examiner told him that the assured and the other three'were all sound men. After this the written application was made out which was signed by the assured, and. which contains the statements relied upon to defeat a recovery in this action, which statements are, in substance, that the assured had no ailments or diseases within the last ten years, and that he had no medical attendant.

From this statement it will be seen that this written application did not induce the acceptance of the risk, but that the medical examination was had, full investigation made by the agent and the risk accepted, before this written application was made. The risk was really accepted upon the information derived from the medical examiner, who knew ■ all about the applicant and who gave full information to the agent. Instead of inducing the agent to accept the risk the applicant was really induced to take the policy. He placed himself completely in the hands of the medical examiner, before he made the application or submitted to the medical examination, and was told that there was no obstacle in the way of his taking a policy. The agent was told the same thing in substance, and then the applicant submitted to the examination and received his policy and paid the necessary premium.

Now, if under these circumstances this company can escape liability on this policy, then life insurance will be reduced to a delusion and a snare. The companies send their agents into all places to preach the gospel of life insurance to all men, and to induce them to become insured. They meet with men of all classes, many of them having little or no education, and understanding but very little of the force or effect of language or words. They draw all the papers themselves, fill up blank applications and policies, with which they are familiar and the applicant is not, and the applicant appends his name, in most instances, in blind reliance upon the assurance of the company’s agent that all is right, and all will be well. This is substantially a true picture of this case. Now, it is claimed that a false statement has been made which vitiates the whole contract; that, whereas, the application contains a statement that the applicant had had no ailments or diseases within the last ten years, yet in truth and in fact within that time he had had an attack of one of the most common forms of infiammation of the stomach, which lasted about two weeks, and which might have been forgotten at the time of making this application. Of course this attack had no possible connection with the disease which eventually caused the death of the insured person. There can be no pretense that any fraud or misrepresentation was intended by the applicant, and, as he was free from fraud, we intend to sustain this judgment on the ground that the making out of the application must be regarded as the act of the company, and it can derive no benefit or immunity from any misstatement it contains. In the case of Rowley v. The Empire Insurance Company the Court of Appeals held that an agent of an, insurance company, in filling up a blank application for insurance, acts as the agent of the company rather than of the applicant, and a misstatement made therein by him, which is not induced by the instruction of the appellant, does not avoid the policy. (4 Ct. App. Dec., 131; 36 N. Y., 550.) The same doctrine had been before that held in the case of Plumb v. The Cattaraugus County Mutual Insurance Company (reported in 18 N. Y., 392), and when Judge Grover questioned the correctness of this decision in his opinion in the case of Owens v. Holland Purchase Insurance Company (56 N. Y., 565), all the other judges took pains to say they did not concur in that portion of the opinion. The case of Flynn v. The Equitable Life Insurance Society is much like this case, and the court sustained the recovery on the ground that, although the answers and statements were untrue, yet, as the medical examiner, under whose advice they were made, was the agent of the company, they were bound by his acts, and could not set up the untruthfulness of the answers and statements as a defense. (7 Him, 387.)

This doctrine accords with good sense, fair dealing and sound morals, and ought to prevail.

Judgment affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.


text:
    THE BREWERS’ FIRE INSURANCE COMPANY, Respondent, v. JOSEPH BURGER, Appellant.

      Conditional subscription — Contract — reducing of part to uniting — does not pi-ect/ade oral evidence of the residue— Conditional delvo&ry.

    This action was brought to recover sixty per cent of a subscription, made by the defendant to the capital stock of the plaintiff. The defendant insisted that the entire agreement was not contained in the subscription paper, and that the subscription was void because delivered under an agreement that it was not to become valid or binding unless $300,000 should be subscribed, and unless a branch office of the company were established in New York, neither of which conditions had been complied with; the defendant objected to signing the paper when presented to him because the said conditions were not therein stated, but was informed by plaintiff’s agent that it would not be valid until they had been complied with; held, that the defendant should be allowed to prove that the paper was signed upon said conditions, and that if he succeeded in so doing he was entitled to a judgment in his favor.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court.

      John, H. Bergen, for tbe appellant.

      Ed/wa/rd Solomon, for tbe respondent.
   Dykman, J.:

This is an action to recover sixty per cent upon a subscription to tbe capital stock of tbe company to wbicb tbe plaintiff bas succeeded. His defense is that tbe subscription paper never was delivered to tbe plaintiff, and that it never became a valid or binding or subsisting contract, and was only to become such-if $200,000 was raised by subscription, and a branch of tbe company established in New York city, and that these were conditions precedent to tbe liability of tbe defendant. On tbe trial of tbe cause there was testimony introduced wbicb tended to establish tbe defense. It was shown that, at tbe first meeting in relation to tbe matters in New York city, it was agreed that an effort should be made to raise $200,000 of stock, of wbicb twenty-five per cent in cash should be paid, and if that amount could not be raised it should be considered an. experiment, and the signatures should be null and void. That if the amount of $200,000 should be subscribed, then a meeting was to be called to organize a department of the east. That the subscription was to be for the basis of the western company. That unless the $200,000 was subscribed it was considered an experiment, and there should be no further action taken in the premises. That if the $200,000 was subscribed a meeting was to be called, and the department of the east organized, and the basis of the department of the east was to be the appointment of a committee of finance to collect the money and have it in their trust; that the money this committee of finance was to collect, was the twenty-five per cent on the $200,000 subscribed, and that this sum of $200,000 was to be the capital of the department of the east. This arrangement was made at the meeting at Schaeffer’s. This testimony was given on the part of the plaintiff, and is entirely uncontradicted.

Mr. Jacobs, the agent of the plaintiff, drew up a subscription after this meeting, and it was presented to the defendant by Mr. Katzenmeyer for Mr. Jacobs. The defendant at once objected to the paper, because there was nothing in it about the department of the east, or that the money should remain here in their own treasury; that there was nothing said in the paper about the $200,000. Katzenmeyer told him it would all be right, and that the arrangement made at Schaeffer’s would be carried out, and on that condition the defendant signed it. These facts are also undisputed.

The trial court must have proceeded upon the theory that the defendant was bound by the paper writing which he signed, and could not be permitted to contradict it for the purpose of defeating a recovery. This was a mistake. The case presented was one where the original contract was verbal and complete, and a part only of it was afterward reduced to writing, and in such cases it is always competent to prove the whole agreement. (Greenl. Ev., § 284.) The subscription paper which was signed by the defendant was only one of two transactions between these parties in relation to the same subject, and the defendant had a right to show what the other transaction was, because his legal obligations, whatever they were, arose out of both. This is no violation of the salutary rule of law which forbids the use of parol testimony to afféct a written instrument, because a part only of the agreement is reduced to waiting. If tbe defendant had assented to the terms of the sub- . sciiption papea1, there might be some ground for saying he waived the agreement which was made at Schaeffer’s, but, so far from his doing so, he objected to the paper because it did not contain that agreement, and only signed it when he was assured that agreement should stand and be earned out.

In the case of Bostwick v. The Baltimore and Ohio Railroad Company (45 N. Y., 712), certain goods were shipped under a verbal agreement for their transportation, and in a few days a bill of lading was sent for the goods, which, by its terms, limited the liability of the carrier1, and contained a statement that, by accepting it, the shipper agreed to its conditions. The bill was not returned, and yet it was held that the verbal agreement was not merged in it, and the shipper was not concluded from showing what the actual agreement was.

Within this principle the defendant, had the right to invoke to his aid the verbal agreement made at Schaeffer’s, and to rely upon the safeguards which were thrown around him by its provision. Of these he was wholly deprived on the trial, and made to stand upon a paper which contained a small part of the agreement, which he had actually made, which he had signed under protest and delivered on condition. The court thus placed the defendant in a position where no voluntary act of his legitimately consigned him, and the result to him could hardly be otherwise than disastrous.

Again, it was entirely competent for the defendant to annex any condition to the delivery of this subscription paper, and to limit the extent of its operation by the conditions upon which the delivery was made. He did annex to the delivery the condition that he should and would be liable if the arrangement made at Schaeffer’s was carried out, and in no other event. The delivery, then, was upon the condition that $200,000 should be subscribed, that a meeting should then be called, and the department of the east organized, and a committee of finance appointed to collect twenty-five per cent of the subscription. This, then, was the legal obligation which was assumed by the defendant when he signed the subscription, and as- all the conditions were precedent to his liability, their performance must all be shown before his liability attaches. The defendant asked to have all these questions submitted to tbe jury, and tbe court denied tbe request, and ordered a verdict -for tbe plaintiff for tbe full amount of tbe claim. We think tbe very least that tbe court could have done for tbe defendant was to allow him to go to the jury, and that tbe refusal to do so was error, for which tbe judgment must be reversed, and new trial granted, costs to abide event.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


author: Dykma.n, J.:

text:
    THE CONNECTICUT FIRE INSURANCE COMPANY, Appellant, v. THE ERIE RAILWAY COMPANY, Respondent.

      Insurance — loss to p/'operty — release by own&r topa/rty causing — effect of, on rights of inswrance company paying the loss.

    Certain buildings belonging to one Martin having been burned through the negligence of the defendant, a settlement was effected by which, in consideration of a certain sum of money paid to Martin, he discharged the company from all his loss and damages occasioned by the fire. Subsequently, he brought an action against the plaintiff upon a policy of insurance issued by it, and recovered judgment therein, iipon payment of which he assigned to the plaintiff any claim against the defendant which might still remain in him after the said settlement. In an action by the plaintiff to recover the amount paid upon the policy of insurance; held, that as Martin had discharged all his claim against the defendant, he had no right of action against it which he could assign to the plaintiff, or to which it could be subrogated upon paying the amount of the policy.
    Appeal from au order made at Special Term, setting aside a verdict of tbe jury in favor of tbe plaintiff,' and dismissing tbe complaint herein, and from tbe judgment entered in pursuance of tbe said order.

      Scott <& UvrsoKberg, for tbe appellant.

      Lewis JE. Ocurr, for tbe respondent.
   Dykma.n, J.:

John Martin was the owner of certain buildings and premises in Orange county in the year 1872, and on the twentieth day of December in that year he procured them to be insured against fire by the plaintiff for the sum of $1,500. The property adjoined the railroad of the defendant, and on the 13th day of May, 1873, the buildings were destroyed by a fire which had its origin in sparks which were emitted from one of the locomotive engines running on the defendant’s road. On the 10th day of September, 1873, Martin effected a settlement with the defendant for the damages he claimed to have sustained by reason of negligence in setting fire to and destroying his buildings, and received from the defendant the sum of $2,100 in money, and gave a full receipt and discharge to the company for all his loss and damage by the fire which destroyed his buildings.

In August, 1873, an action was commenced by Martin against the plaintiff to recover the amount of his insurance, which resulted in a judgment in favor of the plaintiff for the full amount of the claim. This judgment was paid by the plaintiff on the 11th day of February, 187é, and on that day Martin executed and delivered to the plaintiff an assignment which contained this clause : The said John Martin hereby sells, 'assigns, transfers and sets over to the said insurance company all claim, demand and right of action against the said Erie Railway Company arising out of the fire aforesaid, which he now has or which may have remained to him after the settlement of the claim made by him against said Erie Railway Company as aforesaid.” Now, this action is brought to recover the sum of $1,500, the amount of the insurance paid by the plaintiff. The case was tried at the Circuit, where a verdict was rendered for the plaintiff, which was set aside by the court on the minutes, and the case now comes to us on appeal from that order.

The right of the plaintiff to recover in this action is vested on the principle of equitable subrogation, a doctrine which had its origin and much of its growth in the Roman civil law, under the name of substitution; and it is one of the many illustrations of the enlightened policy of that people, that a doctrine so much in accordance with the principle of natural justice should have early f ound a place in that splendid system of Roman law. It has been transplanted from the civil law into onr system of equity jurisprudence, and is very useful in bringing about just results in a great variety of cases. Concisely stated, it means that where one person discharges an obligation which primarily rests upon another, he shall be substituted to the place of a creditor in respect to the party who is primarily hable, and shall have the benefit of all securities or claims which are held by the creditor. The doctrine may be applied to cases of insurance as well as any others, as the chancellor said in the case of The Etna Fire Insurance v. Tyler (reported in the 16th of Wendell, 391). This principié of equitable subrogation, or substitution of the underwriters in the place of the assured, is recognized by every writer on the subject of insurance, and is constantly acted upon in courts of law as well as in equity ; so that where the assured has any claim to indemnity for his loss against a third person who is primarily liable for the same, if the .assured discharges such third person from his liability before the payment of the loss by the underwriters, he discharges his claim against them for such loss pro tanto / or, if he obtain payment from such third person afterwards, it is in the nature of salvage, which he holds as trustee for the underwriters who had paid the loss. So, in the case of Gracie v. The New York Insurance Company (8 Johns. R., 216), where there was a recovery by the assured for the full amount of the policy, upon the condemnation of a vessel and cargo under the Berlin and Milan decrees, Chief Justice Kent said that if the French government should at any time mate compensation for the capture and condemnation, the United States would receive and hold the money as the trustee of the underwriters, who would clearly be entitled to be paid the same.

If this case is to be determined in accordance with the principles enunciated in the foregoing extracts, then there is very little trouble in reaching a satisfactory conclusion. At the time Martin made his assignment to the plaintiff he had settled with the defendant; had been paid the full amount of his damages, and had given a full discharge of all claim against the company ; he therefore had no claim against the defendant at that time, in relation to which the plaintiff could be substituted and put in his place. The doctrine of subrogation can have no application where there is no person who is primarily hable to discharge the claim which is paid and discharged by the party seeking to be subrogated. Here the defendant, the party primarily liable to pay for the loss, had done so — had discharged the obligation. Certainly there was no further claim of Martin against it, and there was, therefore, no claim of his to which the plaintiff could be substituted. The plaintiff cannot get through him what he cannot get himself. This seems to go to the very foundation of the plaintiff’s claim, and must defeat a recovery.

Aiter the destruction of the buildings Martin had two remedies for the recovery of his loss : one against the defendant, given to him by law, and one against the plaintiff by virtue of his contract of insurance. He had the right to pursue whichever of these remedies he chose in the first instance. If he had applied to plaintiff and been paid the amount of his policy, he might still have brought an action against the defendant, for. the recovery of his damages resulting from the negligence which caused the fire, and in such an action his recovery would not have been .diminished by any amount received from the insurance company. (Merrick v. Brainard, 38 Barb., 589 ; 34 N. Y., 208.)

We are not now called upon to determine what rights the plaintiff would have acquired by such payment to Martin. As the liability of the defendant to Martin was primary, it may be that the plaintiff, in that event, might have had a right of substitution; or, in an action against the plaintiff by Martin to recover this insurance, after having been paid by the defendant, he might have been limited in his recovery to an amount that would make good his loss. But we have no such case. Instead of applying to the plaintiff he applied to the defendant, and was paid a sum of money in full discharge of its liability. No fraud or collusion is alleged, and he had no further claim against the defendant, and it follows that the plaintiff had none.

The judgment must be affirmed, with costs.

Present — Gilbert and Hykman, JJ. Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM J. UNDERHILL, Under Sheriff of the County of Orange, Respondent, v. STEPHEN W. FULLERTON, County Judge of Orange County, Appellant.

      Judgments of couirts-marrtiaL — review of.

    The legality of a judgment of a court-martial, where such court had jurisdiction and power to render the same, cannot he reviewed upon a habeas corpus, issued to procure the discharge of one committed to the county jail hy virtue of an execution issued thereon.
    Appeal from an order made at Special Term, reversing on cerUora/ri an order of the county judge of Orange county, discharging one John O’Brien from the custody of the relator upon a habeas corpus issued by the said judge.

      M. K. KvrscKberg, for the appellant.

      E. A. Brewster, for the respondent.
   Dykman, J.:

John O’Brien was a member of the nineteenth battalion of the New York State National Guard, and on the 17th day of September, 1875, the colonel issued an order requiring the battalion to assemble at the armory in the city of Newburgh, on the fifth day of October, at ten o’clock in the forenoon, for the purpose of drill, discipline, muster and inspection, and instruction in camp duties and rifle practice, and to proceed by train to near Washingtonville, and there remain in camp until the evening of October seventh, each man to provide himself with rations for the time he would be in camp, and also with necessary bedding, and at least one pair of white gloves. O’Brien disobeyed this order. He was summoned before a battalion court-martial, tried, found guilty, and sentenced to pay a fine of nine dollars. The warrant was issij^d for the collection of the fine or the imprisonment of the defendant, and in default of payment the defendant was arrested and lodged in the Orange county jail. Thereupon a writ -of habeas corpus was sued out before the Hon. Stephen W. Eullerton, the county judge of Orange county, who, after a final hearing, ordered the defendant O’Brien to be discharged. The proceedings before the county judge were then brought into this court by certiorari, and the order made by the county judge was reversed by the order of a Special Term, and the case comes now to the General Term on appeal from that order.

There is no complaint of any irregularity in the proceedings of the court-martial, nor that the court was not properly constituted. This being so, the court had jurisdiction of the person of O’Brien, because he was a member of the battalion, and of the offense, because it was a military offense of disobedience of orders, and the fine was not in excess of what the law permits.

Under this state of facts we are met at the threshold of the case with the question, whether the legality of the order of the colonel which was disobeyed by O’Brien can be reviewed on proceedings by habeas corpus, or whether that must be done by appeal ?

The jurisdiction of courts-martial is limited, but they are courts, nevertheless, within the meaning of the Constitution, and so long as they act within the scope of their powers, their proceedings and judgments are as' valid and effectual as those of any other tribunal. They are instituted for the trial of offenses against the military law, committed by persons who are amenable to its mandates, but have no power or authority over other members of the body politic. By the act of enlistment into the military service, a person submits himself to all the requirements, rules or regulations of the military law, and among these is the authority to try such enlisted persons for all breaches of military duty. The breach with which O’Brien was charged in this case was absence from parade and encampment. In his defense he pleaded that the order of the colonel, which he disobeyed, was one which that officer had no authority to make. The court found against him on that question, and found him guilty of the offense charged, and imposed upon him the penalty prescribed by the Military Code of the State in such cases.

We thus have two propositions clearly established: First, that the court-martial had power to try O’Brien for the offense with which he was charged, and was entirely competent to inflict the punishment which was imposed upon him. In other words, the judgment was one which the court had jurisdiction and power to render. Now, suppose the court fell into an error in deciding the legal question raised against O’Brien, can that error be corrected by habeas corpus ?

The twenty-second section of our habeas corpus act provides that persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, shall not be entitled to prosecute such a writ, and the forty-second section provides that no court or oificer, on the return of any habeas corpus or certiorari issued under this article, shall have power to inquire into the legality or justice of any process, judgment, decree or execution specified in the preceding twenty-second section, that is, the judgment or decree of any competent tribunal. of civil or criminal jurisdiction. Now, these provisions make it plain that we cannot make the writ of habeas corpus perform all the functions of a writ of error or of an appeal, and that the most that can be done, under it, is to determine whether the process or judgment complained of emanated from a court of competent jurisdiction, and whether the court had the legal and constitutional power to render sneh judgment or to issue such process. We cannot, under the writ, review the decision nor judgment nor process of a court of competent jurisdiction. There is nothing in Tweed’s case, in the Court of Appeals, in conflict with this doctrine. The court there held that the court below had rendered a judgment beyond its competency; that the power of the conrt was exhausted by one sentence upon the prisoner, and that the other sentences were void, because the corn’t had no power to impose them under any circumstances. All the court did in that case was to inquire into the legal and constitutional power of the court to do what was done, and it very expressly stated in that case that, if the judgment was erroneous merely, the court having given a wrong judgment when it had jurisdiction, relief can only be had by writ of error or other process of review.

We think these considerations show that the order of the Special Term must be affirmed, with costs and disbursements.

Present — Barnard, P. J., and Dykman J. Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


author: D ykman, J.:

text:
    CHRISTOPHER MEYER, Respondent, v. FRANCIS S. LATHROP, as Assignee in Bankruptcy of JAMES A. WILLIAMSON, Impleaded, etc., Appellant.

      Principal and surety — relation between grantor, and grantee assuming payment of mortgage — extension of time of payment.

    Although when a grantee of property assumes the payment of a mortgage then existing thereon, he becomes, in equity, as between himself and the grantor, the principal debtor, and the grantor is regarded as a surety; yet, the rights of the mortgagee are not affected thereby, and, as to him, the mortgagor still continues to be the principal debtor, and the liability of the latter to him is not affected by an extension of the time of payment of the mortgage given to the grantee.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      William G. Wilson, for tbe appellant Latbrop.

      W. S. Williams, for tbe respondent.
   D ykman, J.:

Tbis action is brought to foreclose four mortgages of $3,000 each, made by tbe defendant Eickelt to one Herbert, and assigned first to Beckwith and then to tbe plaintiff. Tbe premises covered by tbe mortgages were conveyed by Eickelt to James A. Williamson, wbo assumed tbe payment of tbe mortgages on tbe 19th day of June, 1874, when Williamson was tbe owner of tbe premises and tbe plaintiff was tbe bolder of tbe mortgages. Williamson made bis twelve several promissory notes for upwards of $1,000 each, payable to bis own order one every month, and indorsed by him in blank, and delivered them to tbe plaintiff, wbo accepted them and at tbe same time signed and delivered to Williamson tbe following instrument:

“New York, Jvme 19, 1874.

“Received from James A. Williamson bis twelve promissory notes as per memorandum above, being in full for' principal and interest of four bonds and mortgages made by H. E. Eickelt on four bouses and lots on Myrtle avenue, Brooklyn, which bonds and mortgages I hereby agree to assign to such parties as be may designate when called for.

“O. METER,”

The first three of these twelve notes were paid, and the plaintiff offered to surrender the remaining nine on the trial. Before the commencement of this action Williamson was adjudged a bankrupt, and the defendant Lathrop was appointed his assignee in bankruptcy.

This action is defended on the ground that the acceptance of the promissory notes and the giving of this instrument by the plaintiff was a payment of the mortgage, and Fickelt sets up the defense that he was released, by the extension of the time of payment of this mortgage by the plaintiff without his assent. Neither of these defenses are valid. There is no proof nor pretense that there was any agreement to accept the promissory notes in payment of the mortgages, and if any thing is settled in our law it is that the acceptance of the promissory note of the debtor does not extinguish the original demand for which it is taken. (Waydell v. Luer, 5 Hill, 448; Hill v. Beebe, 13 N. Y., 562.) This principle of law is therefore entirely fatal to this defense, so far as Williamson is concerned.

So far as the defense set up by Fickelt goes, it comes to this: The effect of the acceptance of the promissory notes by the plaintiff was to extend the time for paying the mortgages. In equity as between themselves, Williamson became the principal debtor when he assumed the payment of the mortgages, and Fickelt occupied the position of surety in relation thereto. Now it is claimed that the extension of the time for Williamson by the plaintiff, without the consent of Fickelt, operated as his discharge, -and this claim is founded upon the general principle of law, that if time is given to the principal the surety is discharged. This principle is founded upon, or rather results from the equitable right of the surety to be subrogated to the rights of the principal at any time. This is all well enough as a general proposition, and without deviating now to speak of its limitations, it is sufficient to say here that it has no application to this case, for the reason that Fickelt is not a surety upon these bonds and mortgages, but is the original maker, and is only considered as such in equity for the purpose of working out certain equitable results; as between Williamson and himself it is equitable that the mortgages should be paid out of the land and by the owner, who should be treated as the debtor, primarily liable to pay the debt. This equitable rule does not, however, interfere with any of tbe legal rights of the plaintiff; as to him Fiekelt is still liable upon his bond and mortgage as principal debtor, and an action can be maintained against him by the plaintiff as such. This shows that Fiekelt cannot, in this case, invoke the rule of law mentioned to shield him from liability to the plaintiff in this action.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred. Gilbert, J., not sitting.

Judgment affirmed, with costs.


text:
    WILLIAM M. SCOTT, Respondent, v. JAMES H. ELMORE, Jr., an Infant, Appellant, Impleaded with others.

      Svpplementm-y proceedings — order appointing receive,r in — title to real estate, not

    On. November 27, 1874, a judgment was recovered against the defendant Elmore, who was in possession of and entitled to a life estate in certain real property. Execution having been issued upon said judgment and returned unsatisfied, supplementary proceedings were instituted, in which, on June 25, 1875, a receiver of the property of the said Elmore was duly appointed by an order which was duly recorded. July 1,1875, the receiver conveyed all the right, title and interest of Elmore in the said real estate to the plaintiff. Elmore never made any conveyance to the receiver, nor was any order ever made by the court requiring him so to do, or directing a sale by the receiver.

      Held, that the receiver was not vested, by virtue of his appointment, with any title to the real estate owned by the judgment debtor, nor did the plaintiff acquire any interest therein by virtue of the conveyance from him.

      Bamlc v. Bisty (19 N. Y., 875) and Moah v. Boats (38 Barb., 498) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was for partition of real property, the plaintiff claiming an interest therein, under a deed executed by a receiver, in proceedings supplementary to execution, -of a judgment debtor having a life estate in said property.
    The order appointing the receiver was duly recorded in the proper clerk’s office.

      Robert S. Green, for the guardian ad Utem, appellant.

      E&wa/rd 8. Obmeh, for the respondent.
   Dykman, J.:

The object of this action is to procure the partition or sale of certain real property in the county of Queens. The original source of title to the premises was Annette 0. Elmore. She died seized in fee of the premises, and intestate, in October, 1872, leaving her surviving, her husband James H. Elmore, and two children Charles Elmore and James H. Elmore, Jr. Charles has since died intestate and without issue. On the 21st day of January, 1875, William Bunting was appointed the receiver of the property of James H. Elmore, in proceeding supplementary to execution, by the county judge of Queens county, and on the 1st day of July, 1875, he made, executed and delivered to the plaintiff a deed of conveyance of all the right, title and interest of James H. Elmore in the premises in question. James H. Elmore, the judgment debtor, never made any conveyance to the receiver. On the 3d day of August, 1875, the plaintiff, with his wife, made, executed and delivered to George Deerland a deed of conveyance for the equal, undivided one-half of the premises in question. It will thus be seen that at the death of Annette 0. Elmore her husband became entitled to a life estate in the premises, or tenant by the curtesy, and that the remainder descended to her two sons; as Oharles has since died his half of the remainder vests in his- brother. The plaintiff, at the time of the commencement of this action, was in the possession of premises, and he claims that, by the deed of conveyance from • the receiver, he became the owner of the life estate of James H. Elmore, and that, as he has conveyed the one-half of this estate to George Deerland, who is out of possession, he can now maintain this action for partition because he now holds his life estate in common with Deerland, who is made a party defendant.

It is first important to determine the legal effect of the deed of conveyance from the receiver to the plaintiff. On the 27th day of November, 1874, a judgment was docketed, in the county of Queens, for a large amount in favor of Aaron A. Degrauw against James H. Elmotp., who was then residing on these premises, and of course this judgment became a lien on his estate therein. An execution was issued on this judgment against the property of the defendant, and his life estate could have been sold under that execution; but it was not, and the execution was returned unsatisfied; and then the proceedings supplementary to execution were instituted, which resulted in the appointment of the receiver, as has been stated. There were three other judgments against James H. Elmore, which were liens on this same land to the same extent as that of the plaintiff, but they were all prior to his ; whether or not they have been satisfied the case does not disclose.

If the interest of James H. Elmore in this land had been sold under the execution on the plaintiff’s judgment, the sale would not have become absolute until the expiration of fifteen months. The judgment debtor and her heir and grantees had twelve months in which to redeem, and then the other judgment creditors and mortgagees had three months longer, in which they might acquire the interest of the purchaser at such sale. Now, this right to redeem and take the situation of the purchaser at a sheriff’s sale is a legal right which is given to a junior judgment debtor by our statute, and of which he cannot be deprived by any act, either of the debtor or of a prior judgment creditor.

If, instead of a sale of land under an execution against property, a judgment debtor can procure the appointment of a receiver in supplementary proceedings, and take from him a conveyance of the real estate of the judgment debtor, and thus vest himself with the absolute title, free from the right of redemption, then the whole of that nicely adjusted policy of our statute in relation to sale of real property to enforce the payment of judgments, is subverted and swept aside. Let it be borne in mind that there never has been any order of the court directing any conveyance or assignment from the judgment debtor to the receiver, nor directing any sale or conveyance by the receiver. Proceedings supplementary to execution are analogous to the commencement of an equitable action in the nature of the old-fashioned creditors’ bill; and its only object, so far as it relates to land, is to clear away some fraudulent obstruction to the ordinary and legal remedy by execution. It is true that the Court of Chancery had the power, and exercised it, to compel the debtor to make an assignment of his property to the receiver (Chipman v. Sabbator, 7 Paige, 47); and when this was done the receiver became the trustee, and discharged his duties under the direction of the court. This remedy still exists. The Supreme Court has now the same power as the old Court of Chancery in this respect, and, where a creditor elects to pursue it, he may, but he cannot be compelled to do so. In this case the plaintiff has not pursued this remedy, and it is no part of the legitimate office of a creditor’s suit. That office is performed when the obstruction to the legal remedy by execution is swept aside. In this case there was no such obstruction. The lien of the plaintiff’s judgment had attached to the interest in the land, of his judgment debtor, and the title still remained in him. There was no office to be performed by the subsequent proceeding, unless the plaintiff went further and obtained an assignment from his judgment debtor to the receiver under and in pursuance of the order of the court. The judgment debtor was in possession of land in which he had a legal estate, and we do not think that a receiver ought to be appointed in such a case; and, if one is appointed, we do not think he takes an interest in the land of the judgment debtor, which empowers him to convey any title to it at all. To hold otherwise would be to decide substantially that the court can cut off the right of a junior judgment creditor to redeem, by the appointment of a receiver in any case, whereas, “ if his judgment has been recorded before other creditors have instituted proceedings in equity, nothing in the course or in the result of those proceedings can affect' his right.” (Bank v. Risley, 19 N. Y., 375.)

It seems to be settled that, before the Code, a receiver took no title to real property by the mere order of the court, without any conveyance from the judgment debtor in whom the legal title was vested. (Wilson v. Wilson, 1 Barb. Ch., 592; Porter v. Williams, 5 Selden, 142.) Whether, under the provision of section 298 of the Code, a receiver takes title to real property by the mere order of the court appointing him, has been much discussed in several cases in the Court of Appeals, but the judges have differed in their views. In the case of Porter v. Williams (supra), Justice Willard expressed the opinion, that by the Code real and personal property are placed on the same footing in this respect, and that no assignment is necessary to vest the legal estate to either. This, however, is but the mere expression of his own opinion and is of no binding» force, as the question, was not involved in the case. The most satisfactory case is .that of the Chautauqua County Bank v. Risley, above quoted. In that case Judge Comstook discussed'the question respecting the power of the receiver to make a sale under a judgment of the court, that would cut off the right of the debtor to redeem, with great ability and great thoroughness, and came to the conclusion that he had no such power without an assignment from the judgment debtor, and in the course of the discussion he says: The personal estate became vested in the receiver from the time and by virtue of his appointment, the real estate only by virtue of a conveyance to him, which the court has power to compel.”

In Moak v. Goats (33 Barb., 498), proceedings supplementary to execution were instituted against Catharine Coats, and the plaintiff was appointed receiver therein, when she was the owner of a dower right as the widow of her husband, then deceased; after the plaintiff’s appointment the widow joined with the heirs in a conveyance of the land. After that the plaintiff, as such receiver, procured her dower to be admeasured and set off, and then brought an action of ejectment, claiming to be the owner of the lands so set off by virtue of his appointment as such receiver. No assignment had been executed to the receiver. This case then presented the same question now under consideration, and the court held that the action could not be maintained against the purchaser. The opinion, which was unanimously concurred in by all the members of the court, adopted the views af Judge Comstook, above quoted, and commands our respect by the force of its reasoning. We fully concur in the opinion and in the result arrived at.

Personal property is usually held by mere possession without any other evidence of title, and may be passed from hand to hand in the same way, and it is well enough to allow the title to that kind of property to vest in a receiver without any assignment, because he can take actual possession of it and dispose of it for the purposes of the trust; but real property is held by a very different tenure, and it is important that there should be some muniment of the title, and some evidence of its transmission from one to another. We put our decision on the ground that the receiver took no title to the premises which he assumed to convey to the plaintiff, and that the plaintiff ‘acquired no interest in the same by the conveyance from the receiver, and has no ■ interest that will enable him to maintain this action.

The judgment must be reversed, with costs.

Present — Gilbert and Dykman, JJ. Barnard, P. J., not sitting.

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


author: Gilbert, J.: Dykman, J.

text:
    SARAH SHERWOOD, Respondent, v. THOMAS O. ARCHER and EMILY E. ANDERSON, Appellants.

      Usury — substitution of new note for old one — rights of bona fide holder.

    One Treadwell held an over-due promissory note given by the defendants which was void for usury. Treadwell being indebted to the plaintiff to the amount of the said note, a note was given by the defendants, payable to the order of the paintiff, and the same was subsequently delivered to her, she being ignorant that Treadwell had received any usurious interest from the defendants.
    In an action by her upon the second note, held, that the plaintiff was entitled to recover; that the defendants, by making the note to her order, represented to her that the transaction in which it was given was a lawful one, and that they were estopped to deny the truth of this representation. (Dykman, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by tbe County Court of Westchester county without a jury.
    The action was brought upon a promissory note given by the defendants. The defense was usury.

      JE/agene Archer, for the appellants.

      Amherst Wight, Jr., for the respondent.
   Gilbert, J.:

The evidence given upon the trial not being before us, we must take the findings of the court below upon questions of fact as conclusive. One of these findings is, that the note in suit was given in' renewal of a previous usurious note made by tbe defendant Archer, payable to and held by one Treadwell. That Treadwell delivered tbe note in suit to tbe plaintiff, to whom by its terms it is payable, in payment of bis indebtedness to her, amounting to $200; that tbe plaintiff received none of tbe usurious interest paid by Archer, and did not authorize Treadwell to receive, or know that be bad received any illegal interest. Tbe taking of the note in suit by tbe plaintiff, in payment of Treadwell’s indebtedness to her, was a perfectly legitimate transaction, and constituted her a bolder for value, and if she took the note in good faith and without notice of tbe usury in tbe previous note, those facts are sufficient to establish her right to recover upon it. By making the promise directly to tbe plaintiff, tbe defendants in fact represented to her that the transaction in which tbe note originated was a lawful one, and they are estopped to deny tbe truth of that representation. Tbe release of Treadwell’s indebtedness was a sufficient consideration for the defendants’ promise, and tbe promise, having been made to one who was not privy to tbe usurious agreement between Treadwell and tbe defendants, upon a new and independent consideration, is valid, and not affected by such usurious agreement. Tbe principle that a new security is infected with tbe taint which invalidated tbe former one, does not apply to an innocent bolder of tbe new security, who took it directly from tbe debtor. (Ellis v. Warnes, Cro. Jac., 33; Cuthbert v. Haley, 8 T. R., 390; Jackson v. Henry, 10 Johns., 185; Powell v. Waters, 8 Cow., 691; Holmes v. Williams, 10 Paige, 329; Aldrich v. Reynolds, 1 Barb. Ch., 43.) Tbe legal effect of tbe transaction is tbe same as if tbe defendants bad borrowed of tbe plaintiff tbe money wherewith to pay tbe usurious note held by Treadwell, and bad given tbe note in suit therefor. An argument that a lender of money cannot recover on such a note, because tbe money loaned was used to pay a usurious debt of tbe maker of tbe note, would hardly be bstened to. Although tbe means furnished by tbe plaintiff by which tbe debt of tbe defendants to Treadwell was paid were not in tbe form of money, yet they were equally efficacious, and tbe promise of tbe defendants should be held equally valid and binding. (Hawkes v. Weaver, 46 Barb., 164.)

It has been suggested that tbe transaction was a mere device to evade tbe statute of usury. Tbe court below did not find that fact. Those who allege illegal acts must prove them. In the absence of such proof, the legal presumption is that the fact alleged was not proved.

The intention of Mrs. Anderson to charge her separate estate for the payment of the note, sufficiently appears from the written declaration to that effect appended to the note. That declaration bears the same date as the note, and the court below, in effect, found that they were made and delivered at the same time. They, therefore, formed, together, but one instrument. It is not essential that such declaration should appear in the note itself. (Corn Exchange Ins. Co. v. Babcock, 42 N. Y., 613; Manhattan Co. v. Thompson, 58 id., 82.) The contract is a valid one, notwithstanding it was not made in the course of the separate business of Mrs. Anderson, nor for the benefit of her separate estate, and it may be enforced as a legal liability. (42 N. Y., supra; First Mat. Bank v. Garlinghouse, 53 Barb., 615 ; Ainsley v. Mead, 3 Lans., 116; Monilaws v. Andrews, 8 Hun, 65.)

The judgment should be affirmed.

Dykman, J.

(dissenting):

On the 3d day of June, 1874, Thomas O. Archer, the defendant, executed and delivered to Devoe Treadwell his promissory note for $200, payable five months after date, with interest, and received from Treadwell for the note $180 only. When this note became due Archer requested an extension of time for its payment, and, to procure the same, executed and delivered a new note to Treadwell for $200, and paid to him the interest on the first note and a bonus of ten dollars. Both of these notes were payable to Treadwell’s own order, and, when the second note became due, Archer applied for another extension of time, which was granted upon Archer giving the following note to Treadwell:

“ White Plains, April 2, 1875.

“ Six months from date, for value received, we severally and jointly promise to pay Sarah Sherwood two hundred dollars, with lawful interest.

“THOMAS O. ARCHER.

“EMILY E. ANDERSON.

“ I, Emily E. Anderson, one of the makers of this the above note, being a married woman, do hereby charge my separate estate with the payment of the above note.

“ Dated April 2, 1875.

“EMILY E. ANDERSON.”

Treadwell was indebted to the plaintiff, and after he had received this note he delivered it to her, and she brought this action upon it in the County Court. The cause was tried without a jury, and the county judge has found the facts as they are here stated, and gave a judgment in favor of the plaintiff for the full amount of the note against both of the defendants.

The case now comes into this court upon appeal from that judgment. No case has been made, and we have nothing before us but the judgment roll, containing the findings and the exceptions of the defendants thereto. •

From the foregoing statement it appears that the note in suit was given in substitution of the liability of Thomas O. Archer upon the second note, which was usurious in its incejjtion, and was, therefore, only the continuance of a usurious loan, which had been aggravated by two renewals. It is true this note was taken in the name of the plaintiff, and if this device can be made to succeed, then the usury laws will soon be trampled under the feet of the avaricious moneylender. Extortion will become rampant in the land, and the legislation for the suppression of this evil will become a by-word and a reproach.

The vigilant eye of a court of justice is not to be turned aside by so simple a make-shift or a simple change of papers. The real facts in the transaction must control.

In such a case as this, where the first security is tainted with usury, no matter how often it may be renewed, nor in whose name or in what form the renewals may be, they are all corrupted by the same taint of usury, and are all void. (Walker v. Bank of Washington, 3 How. [U. S.], 62; Tuthill v. Davis, 20 Johns., 285; Bridge v. Hubbard, 15 Mass. Rep., 96.) Neither is the fact that the plaintiff was not privy to the usurious bargain of any importance. (Bridge v. Hubbard, supra; Vickery v. Dickson, 35 Barb., 96; Jacks v. Nichols, 5 N. Y., 178.) As this judgment must, therefore, Le reversed on this first ground, it will be unnecessary to consider tbe case in respect to the liability of tbe defendant Emily E. Anderson.

Tbe judgment should be reversed and new trial granted, with costs to abide tbe event.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment of County Court affirmed, with costs.


text:
    ANDREW JENNINGS, Plaintiff, v. MARGARET CONBOY and others, Defendants.

      Powers — must be either beneficial 01' in trust — when invalid.

    One clause of a testator’s will was as follows, viz.: “I give full power and authority and control to sell my property in Brooklyn to my sister, Mrs. Conboy, and to receive the rent of it — house No. 865, Pacific street, Brooklyn.” PLeld, that the testator created, if anything, a power, but as such power was neither beneficial or in trust, it was not authorized by the Revised Statutes, and that as to such real estate he died intestate.
    Motion for a new trial under section 268 of the' Code, after a judgment bad been rendered in favor of tbe plaintiff, directing tbe usual reference in partition, and for an accounting.

      R. R. Hope, for tbe motion.

      EUal F. Hall, opposed.
   Dykman, J.:

This is a partition suit founded on chapter 238 of tbe Laws of 1853. Section 2 of that law reads as follows: “Any heir or heirs claiming lands, tenements or hereditaments by descent from an ancestor, who died bolding and being in possession of tbe same (whether such heir or heirs be in possession or not), may prosecute for tbe partition thereof, notwithstanding any apparent devise by such ancestor, and any possession held under tbe same devise, provided that such heir or heirs shall allege and establish in tbe same suit, action or proceeding that such apparent devise is void.” John Jennings departed this life in tbe city of New York on tbe 25th day of January, 1873, leaving him surviving tbe plaintiff, bis brother, the defendant, Mrs. Oonboy, his sister, and the other two defendants, his nieces, his only next of kin and heirs at law. He left a last will and testament, which was made and dated on the 10th day of January, 1873, and which has been duly proved and admitted to probate. At the time of his death he was the owner of the premises described in the complaint in this action, and that portion of the will which has any reference to it, is as follows: “I give full power and authority and control to sell my property in Brooklyn to my sister, Mrs. Conboy, and to receive the rent of it — house No. 865 Pacific street, Brooklyn.” On the 10th day of February, 1873, Mrs. Conboy made a deed of conveyance of these premises to William Hanlen, and either the same day or the next Hanlen reconveyed the same to her, and she now claims to own the premises in fee under an execution of the power in the will. On the other hand, the plaintiff and the other defendants claim that the devise is void.

It is the duty of the courts to give force and effect to every last will and testament, and to carry its provisions into execution, if it can be done consistently, and in accordance with the rules of law on that subject. This is upon the principle that the owner of property has the legal right to give such directions to it after his death as he shall deem prudent and proper, provided such direction is consonant with the law. Now, if this provision in this will has any validity at all, it must be valid as a power, and as the creation, construction and execution of powers are now with us governed by our statutes on that subject, this devise must be tested by their provisions; and powers, as authorized by them, are general or special, and beneficial or in trust. (1 R. S., 732, article, Powers.) This is not a power in trust, either general or special, because no person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits, to result from the alienation of the lands according to the power, and because the disposition which it authorizes is not limited to be made by any person other than the grantee of the power. (734, §§ 94, 95.) Neither is this a special power, because no persons or class of persons are designated to whom the disposition of the land under the power is to be made, and the power does not authorize the alienation of any particular estate or interest less than a freehold. (726, § 38.) It is a general power, because it authorizes the alienation, in fee of tbe lands embraced in tbe power to any alienee whatever. (732, § 77.) To be valid, however, it must be beneficial as well as general. Is it such ? “Á general or special power is beneficial where no person other than the grantee has, by the terms of its creation, any interest in its execution.” (§ 79.) It would seem to be a fan- deduction from this section that to render a general or special power a beneficial one the grantee of the power must have an interest in its execution. Here the grantee of the power has no interest in its execution; and not only so, if the power could be exercised by a sale of the land the proceeds would, of course, take the direction which would be given them either by this will or by the law, and either direction would make others beside the grantee interested.

As this examination of the statutes shows that this provision is not valid as a power, its entire invalidity follows; and it likewise follows that, as to his real estate, the testator died intestate. The case was, therefore, properly disposed of at Special Term, and the motion for a new trial must be denied, with costs.

Present — Gilbert and Dykman, JJ. Barnard, P. J.,- not sitting.

Motion for new trial denied with costs.


author: D NEMAN, J.:

text:
    SAMUEL L. MULFORD, Respondent, v. ELINER HODGES and EDWARD F. HODGES, Appellants.

      Divisible a/nd indivisible claims — how distinguished — Assigning'of portion of indivisible claim, — effect of.

    In an action brought against four defendants, an attorney appeared and put ii_ answers for all of them, and appeared for and defended their interests upon the trial. Subsequently, he having assigned to the plaintiff herein his claim against two of the said defendants, the assignee brought this action against the said two defendants and recovered the whole amount of the attorney’s claim.

      Held, (1) that the claim of the attorney against the four defendants was an indivisible one;
    (2) That the assignment to the plaintiff did not assign the whole claim to him, and, the claim being indivisible, did not invest him with any separate portion of it,

      Aureal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      Wyll/ys Hodges, for the appellants.

      Wm. M. Mullen, for tbe respondent.
   D NEMAN, J.:

In April, 1871, tbe Ocean National Bank of tbe city of New York commenced an action in tbe Supreme Court against Eliner Hodges, George W. Hodges, Edward E. Hodges, and Annie E. Hodges, to set aside a conveyance of certain real estate from George W. Hodges, to Edward F. Hodges, and from Edward E. Hodges and wife to Eliner Hodges. Robert Christie, an attorney and counselor at law, was employed by George W. Hodges to defend tbe action. Mr. Christie put in answers for all tbe defendants, which be sub-, scribed as tbe attorney for tbe defendants, and at tbe trial appeared and defended for all tbe defendants. ,

On tbe 15th day of May, 1874, Mr. Christie assigned bis claim against Eliner Hodges and Edward E. Hodges to tbe plaintiff, and this suit was commenced to recover for bis services in that action. From tbe foregoing statement it appears that Mr. Christie 'was tbe attorney for all tbe defendants in tbe bank suit; that be appeared for all, answered for all, and defended for all; and that now the plaintiff, under an assignment of bis claim for services against two of these defendants, claims to recover in this action tbe full value of those services; that is, tbe entire claim that Mr. Christie bad against all tbe defendants for bis services in tbe original action.

This cause was tried before a .referee, who reported in favor of tbe plaintiff for tbe full amount of tbe plaintiff’s services, and judgment has been entered upon tbe report, from which tbe appeal is taken.

We think there is a radical difficulty in tbe way of tbe plaintiff’s recovery in this action. Mr. Christie bad four persons who were indebted to him jointly for professional services; be assigned bis claim for services against two of them, and tbe plaintiff has been permitted to recover on that assignment in an action against tbe two tbe full amount of tbe claim against tbe four. If Mr. Christie had any claim for his professional services in the original action, it was for services rendered for all, and under one employment for all. The services were all rendered and performed under the same contract, and his demand for compensation was an entire demand against the four defendants. His claim rested upon one contract and one transaction; or, rather, upon transactions in relation to one subject.

Much has been said in relation to this subject of entire and divisible demands, and our courts have not been entirely harmonious in relation to the rule by which it may be determined whether a claim is entire and indivisible or not. Some of the cases go far enough to hold that every account or claim consisting of different items, the whole of. which is due, is an entire demand and incapable of division for the purposes of prosecution, while others hold that it is necessary that the claim should have arisen out of a single transaction, or be connected together by contract in order to make it indivisible.

The following rule has been laid down on this subject by our Court of Appeals: The true distinction between demands or rights of action which are single and entire and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts. Perhaps' as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass or conversion or fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be; in respect to contracts expressed or implied, each contract affords one, and only one, cause of action.” (Secor v. Sturgis, 16 N. Y., 558.) It is not important in this case to follow the principle of law on the subject any further, for within all the cases the claim of Mr. Christie was an entire and indivisible demand against four persons.

What, then, was the effect of the act by which he undertook to assign his claim against two of those persons for this entire demand ? Did it accomplish any thing more than make the assignee a joint owner with him of the entire demand? We think it did not; at all events it did not assign the entire claim, and did not vest the assignee with the whole cause of action. It did not vest him with any portion of tbe claim, because, within the rule above stated, that was an entire thing and could not be divided. If this be so, then plaintiff, as such assignee, took no separate interest in this claim; that is, he took no title which gives him a cause of action against these two defendants. Christie had no cause of action against these defendants alone, to give him.

This is not the case of a failure of the joinder of proper parties as defendants, which ought to have been pleaded, but it is the case of a party bringing a suit without any cause of .action. The foundation of this action has failed, and he cannot recover for that reason. But the referee, before whom the cause was tried, not only permitted the plaintiff to maintain his action, but allowed him to prove and recover the entire value of Mr. Christie’s services in the original litigation. This would be wrong, even if the claim was a divisible one. The assignment only purports to give- the plaintiff the claim against the defendants for the services of the assignor, and the judgment allows him to recover for the whole claim of the assignor against all the original defendants.

If this action had been commenced by the assignor in his own name against these two defendants for his services, it might possibly be said that they would be called upon to plead the non-joinder of their co-obligers, because in that case the claims would be a subsisting demand and a valid cause of action in the hands of, and belonging to the plaintiff. But in this case the plaintiff was not the owner of the entire claim for the services, and had not, therefore, any cause of action against any one for it. In any view, therefore, this judgment must be reversed.

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

Present — BarNARD, P. J., Gilbert and Dyikmau, JJ.

Judgment reversed, and new trial granted at Circuit, costs to abide event.