author: Barker, J.:

text:
    KARL NAGEL, Appellant, v. THE CITY OF BUFFALO, Respondent.

      ■City of Buffalo — claims for injuries sustained by reason of defects in its streets, must be presented, for audit before an action can be brought thereon — 1870, chop. 519, tit. 3, sea. 7 — a demurrer will not lie beeamse of the failure to allege such presenta-, tion in the complaint.

    ■Section 7 of title 8 of the charter of the city of Buffalo (chap. 519 of 1870) provides that the common council shall audit “ all claims against the city, hut no unliquidated claim shall be received for audit unless made out in detail, specifying, if for labor or services, the time when, the place where, by whom and under whose direction and by what authority performed; if for merchandise, materials or other articles furnished, the items thereof, by whom ordered, and when and to whom delivered, and if for damages for wrong or injury, when, where and how occasioned; nor unless accompanied by an affidavit that the claim and the items, and specifications thereof, are in all respects just and correct, and that no payments have been made and that no set-oil exists except those stated. No action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council in the manner and form aforesaid.”

      Held, that the statute included claims against the city for injuries sustained by reason of its neglect to keep the streets and sidewalks in proper repair, and that an action to recover damages for such an injury could not be brought until a claim therefor, verified as required by the act, had been made out and presented for audit.

      That the failure of the plaintifE to allege in his complaint that he had so presented his claim for audit did not furnish a ground of demurrer to the defendant, but that the failure to present the claim should be set up as a matter of defense in the answer.
    Appeal from a judgment of the Erie County Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action.

      Daniel W. Alien,, for the appellant.

      Edwand O. Handles, for the respondent.
   Barker, J.:

By the terms of its charter the city of Buffalo is required to keep the streets and sidewalks within the corporate limits in a safe and secure condition. The complaint alleges that one of the streets and sidewalk was out of repair and in an unsafe and dangerous condition, to the knowledge of the defendant’s officers and agents having the same in charge; that the plaintiff, while walking along and upon such sidewalk, without any fault or carelessness on his part, “fell and broke one of his legs, and that such fall and injury was in consequence of such street and sidewalk being out of repair and in an unsafe condition, and from no other cause whatever, and that by reason of such injuries he has suffered damages in the sum of $2,000.

In support of the demurrer it is argued that the action was prematurely brought, as the plaintiff’s right of action was not complete, for the reason that it does not appear from any of the averments in the complaint that the plaintiff’s claim for damages arising out of the injuries which he has received was, before the commencement of this action, presented to the common council of the city of Buffalo for its audit, as required by its charter. This is the only objection to the sufficiency of the complaint.

The provision of the charter bearing on this question is embraced in section 7, title 3, the text of which is as follows: “It (the common council) shall audit all claims against the city, but no unliquidated claims shall be received for audit unless made out in detail, specifying, if for labor or services, the time when, the place where, by whom, and under whose direction and by what authority performed; if for merchandise, materials or other articles furnished, the items thereof, by whom ordered, and when and to whom delivered; and if for damages for wrong or injury, when, where and how occasioned; nor unless accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made, and that no set-off exists except those stated. No action or pro- ' ceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council for audit, in the manner and form aforesaid.”

The requirement that a claim for damages for wrong or injury shall be presented for audit, duly verified, is broad enough to bring within its terms a claim of the nature and character set forth in the complaint. The plaintiff seeks to give the statute a construction which excludes causes of action eai delicto, and limiting it to claims arising out of the lawful action of the city, and not out of its neglect. But as the claims which must be verified, as required by the statute, are classified, and those for damages arising from wrong and injury are separate and distinct from those for work and labor or materials furnished, I have arrived at the conclusion that the position of the defendant as to the meaning of the statute is correct, and concur in the opinion of the Special Term on this point.

The literal meaning of the words used includes wrongs and torts resulting in injury to persons or property. The form of verification prescribed does indicate, as argued by the plaintiff, that it was Ihe intention of the legislature to limit the provision to claims arising out of the ordinary and authorized acts of the officers and agents of the city, but a claimant having a just demand for damages, arising out of neglect of duty on the part of officers and agents of the city, could make a verification, in the form required, without hesitation or embarrassment. The effect of such a verification, in a case of this character, would be to state that the time and place and circumstances under which the injury happened are correctly set forth in the statement made, and that he has received no payment thereon, except those which are mentioned therein. There is convenience in having uniformity in the form of verification attached to accounts and claims presented to a board of audit when tbe same can be truthfully made, to every class of claims which the law requires to be presented for allowance. The object of the statute is to have all the acts and circumstances connected with every claim for damages arising out of injury to person or property submitted to the consideration of the common council, that it may have an opportunity to investigate the merits of the same, and, if found to be just, to pay the same, without the cost of a law suit. The common council are vested with the power, acting in conformity with the provisions of the charter, to allow and settle claims of this character, and direct their payment, which distinguishes this from many of the cases cited by the defendant in support of its position.

The following cases, found in the defendant’s brief, are based upon other statutes, the provisions of which are so different from those found in the defendant’s charter, that they are not controlling as authority, and were determined by the force of the language used in each particular statute. (McGuffin v. The City of Cohoes, 11 Hun, 531; S. C., 74 N. Y., 387; Quinlan v. The City of Utica, 11 Hun, 217; Childs v. The Village of West Troy, 23 id., 68.)

The case before us is more like the case of Minick v. The City of Troy (19 Hun, 253; S. C., 83 N. Y., 514), where it was held that no action for damages for injuries to person or property could be maintained unless the claim had been previously presented to the city authorities for audit, in the manner provided by the defendant’s charter.

But I am of the opinion that the question cannot be properly raised - by demurrer as it was unnecessary to aver in the complaint the presentation of the claim to the common council. The plaintiff’s cause of action was complete without presenting his claim for damages to the common council. His cause of action is not given by any statute but is founded on the principles of the common law. The requirement that the claim shall be presented for audit relates to the remedies to which the plaintiff must resort in order to secure an adjudication and payment of his demand. The provision of the statute is in the nature of a condition subsequent. A neglect to comply with it would operate to defeat a recovery, but its observance does not constitute any part of his cause of action. (Taylor v. The Mayor of the City of New York, 82 N. Y., 10; Cowden v. Pease, 10 Wend., 334; Cowdin v. Stanton, 12 id., 120.)

It is also in the nature of a proviso attached to the cause of action. When an exception or proviso is found in a subsequent clause of a contract distinct and separate from the general clause which gives the right of action by its terms, the' declaration is good if it states a cause of action within the general clause of the contract’without negativing the subsequent exception or proviso. It is an elementary principle of pleading that it is not necessary to allege matter which would come more properly from the other side; that is, it is not necessary to anticipate the adverse party’s answer and forestall his defense and reply. It is only when the matter is such that the affirmation or denial of it is essential to the apparent or prima facie right of the party pleading that it must be affirmed or. denied by him in the first instance. (Commonwealth v. Hart, 11 Cush., 130; Commonwealth v. Jennings, 121 Mass., 47; Hart v. Cleis, 8 Johns., 41; Teel v. Fonda, 4 id., 304; Bennet v. Hurd, 3 id., 438.)

These authorities hold that the matter omitted is not connected with the cause of action, and is more properly a part of the defense. The rule of pleading established by the Code only requires á plain and a concise statement of the facts constituting the cause of action.

The provision of the charter requiring a verified statement of the claim to be presented contemplates that it is due and payable, and that the plaintiff’s cause of action is complete. The rule of pleading that every fact which it is necessary to prove to entitle the plaintiff to recover must be averred in the- complaint, is subject to the qualifications and limitations stated.

The only authority which we are able to find in support of the demurrer is Miller v. The City of Buffalo (1 Sheld., 490). That was an action on an alleged contract with the city for work and labor done, and that learned court held that it was in the nature of a condition precedent to a right of action that the claim should be presented for audit, and the question could be raised by demurrer, if the complaint omitted to aver a presentation, as required by the charter. In support of its position the court cited cases arising on contract where, by the terms of the agreement upon which the actions were based, the act omitted to be averred was made a condition precedent by the terms of the contract, to be performed by the plaintiff.

We have carefully examined all of these cases and fail to discover in any of them a rule of pleading laid down at variance with the conclusions we have reached. In a contract with the city, either express or implied, it may be said, with some reason, and, perhaps, with entire accuracy, that the provisions of the city charter on the subject of audit and payment of claims against the city enter in and form a part of the agreement, the same as if they were in terms incorporated therein. But that rule cannot be applied to actions ex delicto, if it may be rightfully in actions on contracts.

The judgment sustaining the demurrer reversed, with costs, and the defendant allowed to answer on payment of the costs of this appeal and the Special Term.

Bradley, J., concurred; Smith, P. J., concurred in the result; Haight, J., not sitting.

Judgment sustaining demurrer' reversed, with leave to answer over on payment of costs of this appeal and of the demurrer.


source: Caselaw Access Project

license: Public Domain

text:
    CORNELIUS BODINE, Sheriff of Seneca County, Respondent, v. LOUIS L. THURWACHTER and Others, Appellants.

      Execution issued upon a judgment void as to the debtor''s creditor's — how fair it protects am officer in making a levy under it.

    The defendant, a constable, levied upon certain goods of one Kennedy under a judgment entered against him by confession in a Justice’s Court. The judgment was irregular, because the affidavit, which section 311 of the Code required the plaintiff to make, was made by his agent. On the same day the same goods were Seized by the sheriff under an attachment issued against . Kennedy. They were retaken on the same day by the constable. The evidence made it a'question for the jury whether the constable was or was not in possession of the goods under the execution when the levy was made by the sheriff. Upon the trial of this action, brought by the sheriff for a conversion of the goods, the court charged that the execution in the hands of the constable, though regular in form, was no protection and that he must prove that it was issued upon a valid judgment.
    Held, that this was error.

      That ií at the time of the removal of the goods the sheriff was in full and complete possession of the same, as against the constable, that then the latter was liable for retaking them, but that if the constable was in the actual possession of the goods under the execution when the levy was made by the sheriff, then the retaking of the goods by the constable was lawful and this action could not be maintained.
    Appeal from a judgment in the plaintiff’s favor, entered on a verdict, and from an order of the Monroe Special Term denying the defendant’s motion for a new trial.

      William H. Bwton, for the appellants.

      D. Coats, for the respondent.
   Barker, J.:

This is an action of trover for the conversion of certain goods of which Clark H. Kennedy was the owner on the 31st day of December, 1878, and kept by him in his store, in the village of "Waterloo, for sale at retail. On that day in a justice’s court he confessed judgment in favor of Jackson Perry for the sum of $118.25, and judgment was rendered against him by the justice for that amount. Such confession and entry of judgment was in full compliance with the provisions of the Code on that subject, except that the plaintiff omitted to make an affidavit, as required by section 311 of the Code. An affidavit was made by Oscar E. Dennis, who claimed to be the agent for the plaintiff in making the affidavit, and he stated therein that he was such agent, and that the defendant was indebted to the plaintiff in the sum of $118.25, upon a demand, as set forth in the confession of judgment, signed by the defendant, over and above all just demands which the defendant had against the plaintiff, and that such judgment was not made or taken with a view to defraud any creditor. (Code, §§ 310, 311.) On the same .day an execution in due form was issued on such judgment and placed in the hands of the defendant Thomas Walters, who was at that time a constable, and he, on the same day, levied on a part of the goods in controversy, and made an inventory thereof, and attached the same to the execution. He did not remove any of the goods, and Kennedy was left in the possession of the store.

On the next day an attachment was issued out of this court against the property of Kennedy and placed in the hands of one of the plaintiff^ deputies, who ’immediately levied upon all the goods in the store, including those levied upon by the constable, and with the assistance of appraisers made an inventory thereof. He did not remove any of the goods, but he claims that he took possession of the goods and received from Kennedy the key of the store. On the next day, while the store was closed, and the deputy sheriff having the key, the constable with the aid and assistance of the other appellants, in the absence of the deputy sheriff, broke open the store and commenced the removal of the goods levied upon by him, and while the same was being done the deputy sheriff went to the store and forbade the removal. At the time the constable made the levy the deputy sheriff was present at the store and was informed that he had made a levy.

The evidence tends to prove, and a jury would have been justified in finding, that the constable did not surrender up possession to the sheriff, and in fact, was in possession up to the time he removed the property, as against the sheriff and his levy under the attachment. It may be said that the evidence preponderates in the plaintiff’s favor; that he did, in fact, come into the actual possession' of the property notwithstanding the constable made the first levy, but there is evidence' sustaining the position that the constable had not lost possession of the property by virtue of his levy. The deputy sheriff, at the time of the levy by the constable, was in the store claiming control over the goods by virtue of a chattel mortgage which Kennedy had given on the goods to another person and he had advertised them for sale thereon as the agent of the mortgagee. On the day of the alleged conversion, and a few hours before the removal of the goods from the store by the appellants, the evidence tends to show that the deputy sheriff at the store offered some of the goods for sale under the chattel mortgage. Under these circumstances, in connection with the fact that the most material and important evidence on this question came from interested parties, I think the question fairly belonged to the jury for their consideration.

Evidence was given as to the value of the goods, and the verdict included the value -of the goods levied upon by the constable. After the evidence was all in, the court ruled that the execution in the hands of the constable, though regular on its face, was no protection to him and that he was bound to show a valid judgment upon which the same was issued. To such ruling the defendants-took an exception. The judgment was valid against the defendant therein, although the plaintiff omitted to make the affidavit as required. The statute declares that a judgment confessed, otherwise than as prescribed, is void as against every person except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession. The omission to make and file an affidavit on behalf of the plaintiff makes the judgment void as against creditors, but as the constable’s levy was in every respect regular, it being prior to the levy under the attachment, if he in fact remained in possession of the goods levied upon, he could not be charged as a tort feasor by retaining such possession, as against a subsequent levy by execution dr attachment, in behalf of creditors. If such parties should desire to displace the first levy and secure possession of the goods from the constable, I am of the opinion that they would'be obliged to resort to judicial proceedings to accomplish that purpose. The officer making the first levy having followed the directions of the writ, and if no intervening rights had accrued he could have sold the property and a purchaser in good faith would have acquired a perfect title, and it would be manifestly unjust to require the officer to determine, at his own peril, that his rightful possession of the property had ceased in consequence of other proceedings to which he was an entire stranger.

Independent of the consideration that the judgment was valid as against the defendant in the justices’ judgment, the constable-was protected by the writ in making the levy and retaining possession of the goods, the same being in due form and fair on its face. The rule is now well established that a ministerial officer is protected in the execution of process regular on its face and coming from a court having jurisdiction over the subject matter.

When an officer who has seized property by virtue of an execution is sued by the defendant in such execution, or those claiming under him, the officer is never compelled to produce the judgment to justify the taking and retention of possession. The execution alone protects him. (Savocool v. Boughton, 5 Wend., 170; Sheldon v. Van Buskirk, 2 Comst., 473; Bovee v. King, 11 Hun, 250.)

If, however, the constable had in fact surrendered to the sheriff, or the sheriff had acquired full and complete possession of the property under the attachment, even without the consent of the •constable, then the execution afforded the defendant no protection. As an officer acting under process apparently valid, but void in law, he can avail himself thereof for his defense, but not as a justificar tión for affirmative and aggressive action.

The constable could not have maintained an action in replevin .against the sheriff to regain the possession of the goods, for the reason that the execution was issued upon an execution void as against the creditors of Kennedy, and this was so held in Clearwater v. Brill (63 N. Y., 627). Nor could he with his own hand do that which the law would render him no aid in accomplishing.

For these reasons we think that the instructions, in the unqualified manner in which they were given, were erroneous, and it should have been left for the jury to say whether, at the time the goods were removed by the defendants, the sheriff was in full and complete possession of the same as against the constable, and if he was, then the defendants were guilty of a wrong and the process in the hands of the constable did not afford him and liis abettors any protection whatever; but if they should find to the contrary, that the constable was in the actual possession of the goods as against the sheriff and his levy under the attachment, then he was justified by his process in retaining the possession acquired by virtue of his levy.

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

Present — Smith, P. J., Bradley and Haight, J J.

Judgment and order reversed and new trial ordered before another referee, costs to abide the event.


text:
    RHODILLA KELSEY and ELISHA BACON, as Administrators, etc., of HORACE KELSEY, Deceased, Respondents, v. HUGH J. JEWETT, as Receiver of the ERIE RAILWAY COMPANY, Appellant.

      Action for personal injuries — it abates upon the death of the plaintiff — the recovery of a verdict by him will not make it sv/rvive if it be reversed on appeal— Oode of Oivil Procedure, sec. 764.
    In an action to recover damages for personal injuries occasioned by the negligence of the defendant the plaintiff recovered a judgment from which an appeal was taken to the General Term. The appeal was argued in June, 1882, and in October a decision was made reversing the judgment and granting a new trial. The plaintiff died in September, 1882. Thereafter the administrators of the deceased plaintiff were substituted in his place and allowed to file a supplemental complaint.
    The defendant demurred to the supplemental complaint, upon the ground that it did not state facts sufficient to constitute a cause of action: - Held, that the demurrer should be sustained, as the action abated upon the death of the original plaintiff.
    Appeal from a judgment, entered upon an order overruling a demurrer interposed to the complaint, and from the said order.
    This is-an action to recover damages for injuries to the person of the intestate, alleged to have been caused by the defendant’s negligence. The action was commenced November 21, 1875, by the intestate as plaintiff, and issue was joined December 11,1877. The cause was tried in November, 1879, and a verdict was rendered for $5,500 in favor of the plaintiff. The defendant made a motion for a new trial at Special Term, which was denied in September, 1880. Judgment was entered on the verdict in favor of the plaintiff and an appeal was taken to the General Term in September, 1880. The case was argued and submitted at General Term in June, 1882, and a decision reversing the judgment, setting aside the verdict and granting a new trial was handed down by that court in October, 1882. The plaintiff died in September, 1882. After the decision on the appeal, upon a petition by the administrators, they were substituted as plaintiffs in the action and leave was granted to them to file a supplemental complaint setting forth the death of the original plaintiff and the appointment of themselves as administrators. On the filing and serving of the supplemental complaint in November, 1883, the defendant interposed a demurrer upon the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action, and that the cause of action set forth in the original complaint did not survive the death of the intestate. This demurrer was overruled at Special Term and leave given to the defendant to answer. Judgment was entered theréon, from which the defendant appeals.

      Sjprague, Morey <£ Sprague, for the appellant.

      W. S. OTmer, for the respondents.
   Barker, J.:

The plaintiffs, in their representative capacity, had no cause of action against the defendant at the time of filing the supplemental complaint. By a rule of the common law, rights of action founded in tort died with the death of the injured party. The maxim of that law was, a personal right of action dies with the person.” The personal representatives of a deceased person plight, however, sue for a breach of any covenant or promise running to the deceased which caused any injury to his personal estate. So if a tortfeasor or trespasser did an injury to the property of another, either real or personal, and the injured party died before satisfaction was made, all remedy against the wrong-doer was gone and the estate of the deceased was diminished in value to the extent of the loss sustained by the injury. This rule has been relaxed in England by several acts of parliament relative to the subject. (Broom’s Legal Maxims, m. p. 704.)

In this State the ancient rule has been also modified in some particulars, but the change effected does not include in its operation a case like the one at bar; therefore, the cause of action did not survive to the personal representatives of the deceased. The statutes-on the subject are found in chapter 8, part 3, title 3, article 1, entitled “ of suits by and against executors and administrators.” By section 1, 2 Revised Statutes, marginal page 447, it is enacted : “ For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executors or administrators against such wrong-doer * * * in the same manner and with the like effect in all respects, as' actions founded upon contracts.”

The limits of the first section are distinctly defined by the provisions of the second section, which read: “But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plainitff.\ or to the person of the testator or intestate of any executor or administrator.” These provisions of the statute are in full force and effect, unrepealed and in all respects unmodified. (Cregin v. Brooklyn, etc., R. R. Co., 75 N. Y., 192; Murphy v. N. Y. C. and H. R. R. R. Co., 31 Hun, 358.)

It will be observed that in the instances where the right of action survives to the personal representatives, the recovery is for the benefit of the estate of the deceased. The cause of action set forth in the plaintiff’s complaint is for injuries done to the person of the plaintiff’s intestate. At the time of the filing of the supplemental complaint this alleged cause of action was untried and undetermined.

The plaintiff’s position is this: that a verdict having been rendered in favor of the intestate in his lifetime, the right of action survives by virtue of other statutory provisions relative to the subject.

By another rule of the common law, if the injured party brought suit and died before the final judgment, the suit abated. This rule of procedure in actions at law has also been changed, with a view of saving to the estates of deceased persons verdicts recovered in their favor during their lives, in actions of tort, so that if the verdict should remain undisturbed final judgment might be entered thereon and enforced by the personal representatives of the deceased party, and the proceeds become part of the estate in their hands for distribution among the creditors and next of kin of the deceased. The provision of the Revised Statutes on this subject was as follows : “After verdict shall be rendered in any action and after plea of confession in a suit brought, if either party die before judgment be actually entered thereon, the court may, within two terms after such verdict or plea, enter final judgment in the name of the original parties.”

This provision, it will be observed, embraces both classes of actions, no distinction being made between actions of tort and on contract. The statute was repealed (Laws of 1880, chap. 245) and the legislative expression on the same subject is found in section 764, Code of Civil Procedure, as amended 1881, and is as follows: “After verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.” This provision in terms is limited to actions for personal injuries, and properly so, as section Y57 related to cases where the cause of action survived, as provided by the Eevised Statutes already quoted. Section Y64 was substituted in the place of section 121 of the old Code, and so far as the question we are now considering is concerned, the provisions are in legal effect the same.

In our ojnnion if a verdict for a personal injury is set aside then the cause of action abates if the plaintiff dies before another trial is had, and that the sole purpose intended to be accomplished by the provisions of section 764 is to, save to the estate of a deceased party the verdict, report or decision, which may have been rendered in his favor before his death. After a verdict or decision has been set aside as void or erroneous the case stands the same as if none had been rendered, the issues being untried and undetermined.

The subsequent proceedings referred to in this action are the proceedings had in the case after perfecting- judgment, or motions made or appeals taken in the action in due course of procedure, to test the validity of the judgment. For that purpose it is proper to substitute the personal representatives of the deceased party. When the party to an action dies after an appeal is taken from the judgment, the court having jurisdiction on appeal has power to order the legal representatives of the deceased to be substituted 4 independent of the provision of the Code on the subject of substitution of new parties. (Hastings v. McKinley, 8 How. Pr., 175; 1 Wait’s Pr., 155.)

To give the section the construction contended for by the respondent would make a radical change in the law beyond what, as we think, was the intention of the legislature. Such a construction would, in many cases, open the way for the most objectionable pro ceedings in courts of justice, and result in continuing active litigation, which should terminate with the death of either of the litigants. If we should hold, in the case now before us, that the action was not abated,’ then actions for slander, libel, breach of promise to marry, may be tried de novo after the death of either the plaintiff or defendant in all cases where a verdict has been once rendered in'lav or of either party and set aside for cause. The estates of deceased persons might be wasted by law suits of a purely malicious character. Executors and administrators might maintain suits for slander, uttered in the life of the deceased, defaming his character. We are not persuaded that the legislature,-in substituting this section of the Code for the provisions contained in the Revised Statutes, intended that any such result should follow.

In the case of Benjamin's Executors v. Smith (17 Wend., 208) it was held that when a verdict had been set aside and the action sent back for a new trial, it was the same as if no verdict had been rendered.

We have not been able to find any decision which supports the-view of the learned judge at Special Term. The following cases contain rulings and suggestions which are in accord with our own views: Evans v. Cleveland (72 N. Y., 488); Mosely v. Mosely (11 Abb., 105); Wood v. Phillips (11 Abb. [N S.], 2); Spooner v. Keeler (51 N. Y., 527); Comstock v. Dodge (43 How., 97); Cox v. New York Central and Hudson River Railroad (4 Hun, 176). Several of these cases gave an interpretation to section 121 of the old Code,'which is in substance like section 764 of the present Code.

The judgment overruling the demurrer is reversed and the demurrer sustained, and judgment absolute ordered for the defendant, with costs.

Smith, P. J., Bradley and Oorlett, JJ., concurred.

Judgment reversed, demurrer sustained and judgment absolute-ordered for the defendant, with costs.


text:
    NEIL S. GOULD, Plaintiff, v. THE BOARD OF EDUCATION OF UNION FREE SCHOOL, DISTRICT No. 9, of the Town of Livonia, Livingston County, Defendant.

      Board of education of a Union free school district — is a corporation — it may employ an attorney to defend an action — it may select one of its own members to act as its attorney — 1864, chap. 555, tit. 9.
    The board of education of a Union free school district, formed under title 9 of chapter 555 of 1864, is a corporation and possesses, in addition to the powers expressly conferred upon it, those which are possessed by corporations by the rules of the common law, and it may therefore employ an attorney to appear for it and defend an action brought against it.
    It may employ one of the members of its board to act as its attorney, and may be compelled to pay to him the reasonable value of any services he may render.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiff.
    The action was brought to recover the value of - professional services alleged to have been rendered for the defendant by one J. W. Byam, who had assigned his claim to the plaintiff.

      John W. Byam, for the plaintiff.

      James Wood, for the defendant.
   Barker, J.:

The defendant was created a corporation under and in pursuance of title 9, chapter 555 of the Laws of 1861. It was held, in Bassett v. Fish (75 N. Y., 303), that the board of education mentioned in the act was created a corporation complete and possessed all the powers conferred upon it by the other provisions of the act, and possessed in addition thereto the functions and authority conferred by other statutes, and such as corporations enjoy by tne rules of the common law; that the members of the board of education did not possess the powers of school district trustees, but they were the agents of the corporation by and through which it manifested itself and discharged its duties and made and performed its contracts.

The defendant in its corporate capacity was authorized to take charge and possession of the school-house, sites, lots, furniture, books, apparatus and all school property within its territorial limits, and the title to the same was vested in it, and to take and hold for the uses mentioned in the statute any real estate transferred to it by gift, mortgage, bequest or devise of whatever kind given or bequeathed to the said corporation, and apply the same, or interest or proceeds thereof, according to the instructions of the donor or testator. The board of education was vested with the superintendence and management of the schools, and empowered to contract with and employ teachers and remove them for neglect of duty or immoral conduct, and to pay their wages out of moneys appropriated for that purpose. (Sec. 13, tit. 9.) It also possessed the powers, privileges and liabilities conferred upon corporations as enumerated in section 1, title 3, chapter 18 of the Revised Statutes (1 R. S., 599), which includes the power to sue and be sued, complain and defend in any court of law or equity, to make and use a common seal, and alter the same at pleasure; to appoint subordinate officers and agents, such as the business of the corporation shall require, and to allow them suitable compensation therefor.

By the common law corporations are deemed to have such powers as are specifically granted by the act of incorporation, and such further power as may be necessary for the purpose of carrying into •effect the powers expressly granted, and that they possess none other. Such is now the provision of the statute on the subject. (Talmage v. Pell, 3 Seld., 340; 2 Kent’s Com., 298; Hodges v. The City of Buffalo, 2 Denio, 110; New London v. Brainard, 22 Conn., 552.)

¥e entertain no doubt but that the board of education, as the agent of the corporation, had the power to employ an attorney and counselor-at law to conduct for them their legal business and to give them advice from time to time, as they should need it. It is a proper and reasonable power to confer upon the board of managers; to make defenses to such suits as may be commenced against the corporation, and it is necessary to enable them to protect the property of the corporation and not suffer claims to go to judgment by default. There is nothing in the act under which the defendant is organized, or in any other statute, depriving the corporation, through its proper officers and agents, of the right to defend all .actions which may be instituted against it. It may become necessary for such corporations to make contracts aside from the employment of teachers, such as insurance contracts, the loaning of moneys and taking securities therefor, and it would be unreasonable to hold that the board of managers could not commence or defend .suits relating to such matters.

It is claimed by the learned counsel for the defendant that the board of managers had no authority to employ .counsel to prosecute and defend actions, unless instructed so to do by a resolution of the district meeting, and refers to the provisions of section 7, title 9 of the Act. (Chap. 555 of 1864.)

We are of the opinion, and so hold, that the provisions of sections 7, 8 and 9 are limited in their application to school district trustees proper, and' are not limitations upon the corporations created under the act, or upon the power and authority of the board of' education, who act as the officers, agents and managers of the corporation.

It was admitted upon the trial that an action had been commenced against the corporation to recover wages claimed to be due one of the former teachers employed in the sch'ool maintained by the defendant, and at a meeting of the board of education, by a resolution in due form, J ohn W. Byam, then a member of the board, was employed as attorney and counsel to defend the action, and that he acted as such, and that his services were reasonably worth $103.25, and that such claim and demand had been assigned to the plaintiff.

There is no requirement that the members of the board of managers, or any one of them, should act as attorney in defending suits prosecuted against the corporation, and they may properly employ others to perform that service, and the action of the board, within the scope of their authority on that subject, should be binding upon the corporation. (People v. Board of Supervisors of Delaware County, 45 N. Y., 199.)

It is now well settled that a board of managers of a corporation may employ one of its members to perform personal services which are beyond the range of its ordinary official duties, and that he is entitled to compensation therefor. (Jackson v. N. Y. C. R. R. Co., 2 N. Y. Sup. Ct. [T. & C.], 653; S. C. affirmed in Court of Appeals, 58 N. Y., 623; Bailey v. Buffalo Crosstown R. R. Co., 14 Hun 483; Henry v. The Rutland and B. R. R. Co., 27 Vt., 435; Hall v. Vermont and Mass. R. R. Co., 28 id., 401; Chandler v. Monmouth Bank, 1 Green [N. J.], 255.)

The plaintiff-is entitled to judgment upon the verdict, with costs of the action and this appeal.

Present — Smith, P. J., Barker, Bradley and Haight, JJ.

Judgment for plaintiff ordered on the verdict.


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    THE BOARD OF COMMISSIONERS OF EXCISE OF THE CITY OF AUBURN, Respondent, v. GURDEN F. MERCHANT, Appellant.

      Hridence — when the d/rinking of liquor in a store raises a presumption that it was sold, to he drunk there.

    Upon the trial of an action to recover penalties for violations of the excise law the court charged, “that upon proof being made of the fact that liquor was seen to he drunk on the premises, that is prima facie evidence that it was sold with intent that it was to he drank on the premises.”

      Held, no error.
    Appeal from a judgment, entered upon a verdict in favor of the plaintiff rendered at the Cayuga Circuit for $1,000 damages, and from an order denying a motion for a new trial made upon the minutes of the court before which the trial was had.
    The action was brought to recover penalties for alleged violations of the excise laws.
    In the course of his charge the judge said : “ The law provides in such case as this that upon proof being made of the fact that liquor was seen to be drunk on the premises, that is prima facie evidence that it was sold with intent that it was to be drank on the premises.” To this portion of the charge the defendant’s counsel excepted.

      J. JD. Teller, for the appellant.

      F. D. Wright, for the respondent.
   Barker, J.:

All the questions presented, save one, were considered in the case of the same plaintiff against Burtis, just decided.

It appeared that the defendant kept a saloon in the city oí Auburn. The court charged the jury that the calling for liquor and drinking the same on the premises was prima facie evidence of a sale, and the defendant excepted.

It has been held that where a person enters a tavern or saloon and calls for whisky or any other beverage, and it is set out to him by tlio proprietor, and he drinks it, nothing more being said, the law implies a sale. It was so held in The State v. Jarrett (35 Mo., 357), and in this court in the unreported case of Stark v. Lansing, decided in March, 1884.

The judgment should be affirmed, with costs.

Smith, P. J., Bradley and Haight, JJ., concurred.

Judgment and order affirmed.


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    HARRIS ANDREWS, Respondent, v. ABEL RICHMOND and LUCAS SMITH, Appellants.

      Contract — when it is to be regarded as a bailment and when as a sale— as to which party bears the risk of the destruction of the propm'ty by fire.

    The plaintiff delivered to the defendants, who were millers, 490 bushels of wheat, and took back the following instrument:
    “ Received of Harris Andrews, 490 bushels of wheat iu store. The same is subject to him, or option to take price on or before the first of May next.
    “RICHMOND & SMITH.”
    The wheat was placed in a bin containing some 200 or 300 bushels of wheat of the same kind. From this bin the defendants drew every day, on an average, 100 bushels of wheat to be ground into flour and they placed wheat in it from time to time. The mill was burned without fault on the part of the defendants on January twenty-seventh, there being then about 1,000 bushels of- wheat in the bin, and at all times prior thereto there had been in the biu more wheat than was delivered by the plaintiff to the defendants. Thereafter, and before May first, the plaintiff notified the defendants that he elected to sell them his wheat at the then market price.
    In an action, brought by him to recover the market price of the said wheat:

      Held, that if the written receipt alone were considered, then the contract was one of bailment and the defendants became liable as for a conversion of the wheat when they ground it up into flour and used it.
    That if, as was claimed by the defendants, the plaintiff agreed, verbally, at the time of the delivery of the wheat that it might be mixed with the defendants’ own wheat and be ground into flour and used as their property, then the trans action was iu law a sale and the title passed to the defendants, who became liable to pay tbe market price thereof or to return other wheat of the same class and quality as the plaintiff might elect.
    That in either case the plaintiff was entitled to recover the market value of the wheat.
    Appeal from a judgment in the plaintiffs favor, entered upon a verdict rendered at the Ontario Circuit, for the sum of $417.29 and from an order of the Special Term denying a new trial.

      Gomstook <& Bennett, for the appellants.

      John OálMster, for the respondent.
   Barker, J.:

The action is to recover the market price of a quantity of wheat. The plaintiff, a farmer, delivered to the defendants, who are millers, 490 bushels of wheat, and they executed and delivered to him at the same time an instrument in writing which reads:

“ Canandaigua, November 14, 1878.
“ Received of Harris Andrews 490 bushels of wheat in store. The same is subject to him or option to take price on or before the first of May next.
“RICHMOND & SMITH.”

Before the first day of May following, the date of the instrument, the plaintiff informed the defendants that he would sell the wheat and take the market price as it ruled on that day, which was one dollar per bushel. The trial court directed the jury to render a verdict for the plaintiff for the sum of $417.29.

The evidence tended to prove that at the time the wheat was delivered it was placed in a bin containing two or three hundred bushels of wheat of the same kind and quality, of which they were the owners, and from which they were drawing every day for the purpose of grinding, and that when they received the wheat from the plaintiff they informed him that they intended to mix it with their own and manufacture it into flour. It was established on the trial that from the time of the delivery of the wheat up to the twenty-seventh day of January following, the defendants drew from this bin on an average 100 bushels per day for milling purposes, and placed therein about the same quantity. On the day last named the mill burned without any fault or negligence on the part of the defendants. At the time of the fire there was in the bin about 1,000 bushels of wheat of the same class and quality as the wheat delivered by the plaintiff, and during all the time, and up to the time of the fire, there was more wheat in the bin than was delivered by the plaintiff to the defendants. Before the destruction of the mill the plaintiff had not demanded a return of the wheat delivered by him, nor had he elected to make a sale and take the market price. There was no dispute on the trial as to the value of the wheat at the time the plaintiff made his election.

The question presented is this, was the transaction in law a bailment of the wheat, or was it a sale of the same, so that the title passed from the plaintiff to the defendants ? If the instrument in writing called a receipt expresses in full the contract under which the plaintiff' delivered his wheat to the defendants, then they were bailees of the wheat and the title remained in the bailor, and the defendants were under obligations and it was their duty to re-deliver on proper demand the specific wheat to the plaintiff, unless they were relieved from such obligation by an election on the part of the plaintiff to sell them the wheat at the market price, or the same was in some manner destroyed without the fault of the bailees. There is no expression in the instrument indicating an intention on the part of the plaintiff to part with his title and make a sale of the property in presentí. It was stored in the defendants’ mill subject to the plaintiff’s own order, with an option on his part at any time before the first of May, to sell to the defendants at the then market price, and on making such election the defendants were under the implied promise to pay for the wheat. Regarding the instrument as embracing the entire contract between the parties there is no reasonable grounds for disputing the views thus far expressed. (Goodyear v. Ogden, 4 Hill, 104; Dawson v. Kittle, Id., 107.) Therefore, confining the terms of the agreement to the receipt, the consumption of the wheat before the fire was a wrongful and tortious act and the defendants are liable to the plaintiff for the value of the wheat. By the verdict he recovered that much and no more.

We are now to consider the rights of the parties. Conceding the contract or arrangement to be as the oral evidence, together with the writing, tended to prove it to be, that is, the plaintiff consented that the wheat might be mixed with the defendants’ own wheat and ground into flour, in the usual course of their business as millers, and the flour made therefrom to be their own property. Considering this to be the terms of the arrangement, then the transaction in law amounted to a sale of the wheat, and the title passed to the defendants. By an arrangement of this character, if the defendants consumed the wheat they might have redelivered the same amount of other wheat, of the same class and quality, in place of the wheat delivered by the plaintiff, should he demand a return of the wheat, and not elect to sell under the clause giving him the option.

The distinction between a sale and a bailment is well defined by all authorities. The rule laid down is this: when the identical thing is to be redelivered, in the same or in an altered form, the contract is one of bailment and the title to the property is not changed. But when, by the contract, there is no obligation to restore the specific article, and the bailee is at liberty to return another of equal value, he becomes a debtor under obligation to make a return in kind and the title to the property changes, it is a sale. I quote the remarks of Story in commenting on this class of cases: The property passes to the borrower, it being a loan for consumption, and he being bound to restore not the same thing, but other things of the same kind. Thus if corn or wine or any other thing which is not intended to be returned back, but an equivalent in kind, is lost or destroyed by accident, it is the loss of the horrower, for it is his property and he must restore the equivalent in kind.” (Story on Bailments, § 283; Mallory v. Willis, 4 Comst., 76; Foster v. Pettibone, 3 Seld., 433; Buffum v. Merry, 3 Mason, 478; Ewing v. French, 1 Blackford [Ind.], 353; Norton v. Woodruff, 2 Comst., 153; Barker v. Roberts, 8 Greenleaf, 101; Chase v. Washburn, 1 Ohio, 244; Story on Bailments, § 439.)

So which ever view the jury may have taken of the case, the defendants’ liability to account for the value of the wheat at the time of the fire was established. The mere consent of the plaintiff that his wheat might.be mixed with the wheat of the defendants of the same kind and quality was not inconsistent with a bailment simffliciter. Owners of the same kind of property and of equal value, like cereal grains or wines, may consent that they be mixed together in mass, and each in law will retain title to his aliquot part, and may maintain replevin for his share as against a wrong-doer who acquires possession of the same. By force of this rule the owner of grain in store may sell a certain quantity of the same, less than the whole, and pass title thereto, without separating the part so sold from the whole. (Story on Bailments, § 40; 2 Blackstone’s Com., 405; Kimberly v. Patchin, 19 N. Y., 334.)

On these admitted legal propositions, together with conceded facts that the loss was without the defendants’ wrong or negligence, the learned counsel for the appellants bases his argument that the relation of bailor and bailee existed between the parties at the time of the loss of the wheat in the bin by fire, and the loss should be borne by the respondent. But this argument ignores other facts appearing in the case, to wit, that it was the purpose and intention of the bailees to consume the wheat by converting it into flour and selling the same as their own property, to which arrangement the bailor assented.

An agreement that the particular article which the owner places in the hands of another, may be by him consumed or sold in the course of trade, is utterly inconsistent with the principles on which the law of bailment is founded. The very term bailment implies that the owner of an article has placed it in the hands of another who is at some time to redeliver the same to the owner. If the owner consents that the person to whom he delivers the thing may consume or destroy it, it is not a bailment, whatever else the transaction may be in the law. In the case at bar there is no fair question but that all the wheat delivered was ground into flour before the Are.

Ve are cited to cases which are supposed to support the appellants’ argument, that although the identical wheat was consumed by them, the case was one of bailment, as there was all the time other wheat in the bin equal to the amount delivered and of the same class and quality.

In the case of Ledyard v. Hibbard (48 Mich., 421), the defendants were millers, and received from the plaintiff, a farmer, wheat from his wagon and delivered to him a receipt stating that the wheat was received “at owner’s risk from elements, at ten cents less Detroit quotations for same grade when sold us.” This wheat, with the knowledge of the owner, was stored in a bin with the millers’ wheat, from which they drew from day to day for the purpose of their milling business. The quantity in the bins changed from day to day as it was depleted by drafts and replenished by new deposits. There was no finding in that case, nor^was it claimed by the defendant that the plaintiff knew when he delivered the wheat that it was the intention of the defendant to grind the wheat into flour. It was stated as one of the facts of the case that the identical wheat deposited was ground into flour before suit brought. The action was replevin against the millers as defendants, and it appeared that a quantity of wheat of the same brand and quality as that delivered by the plaintiff was in the bin when ho made demand on the defendants for the wheat. It was adjudged by the court to be a case of bailment and not one of sale.

After an examination of the opinion of that learned court we fail to find an affirmance of any rule of law hostile to the views we have expressed. The court say, that by the receipt the grain was declared to be at the bailor’s risk for the time being; it must have continued at his risk until some act was afterwards done by one party or the other to convert what at first was a bailment into a sale.” The court also remarked: It is true if the wheat is all consumed, and the amount in store is not kept good so that a demand for the wheat can be responded to, and if consumption is by the consent of the owner, express or impUed, the consumption under such circumstances may be justly regarded as the meeting of the minds of the parties at the time of sale; but so long as the grain is kept in store from which the receipts may be met, the fair presumption is that it is intended that it shall be met, and this presumption would only be overcome by some act unequivocal in its nature.”

It also appeared in the case that the defendants were warehouse-men, having an elevator and were receiving grain in store from other parties on similar terms and conditions, and there was no •finding that it was the intention of both parties that the grain delivered by the plaintiffs should be ground into flour and sold by the millers as their own. The case falls within the class of cases which are now so common in commercial centers; that the owner of grain may deliver the same to a warehouseman for store with the understanding that the same will be mingled with other grain, and he receive in return grain of the same class and quality, and as between the bailor and bailee the title does not pass, and an action of replevin may be maintained against the warehouseman and a recovery had for any grain of the same class that the warehouseman may have in his possession. The other cases cited are of this character. (Nelson v. Brown, 53 Iowa, 719; Sexton v. Graham, Id., 181.)

In the case at bar the defendants were not warehousemen, and it is not disclosed that they had similar transactions with other parties.

The evidence, which tends to show that the arrangement was in fact different from the one expressed in the receipt, must be regarded as proved by the defendants, for the plaintiff could well stand by the case made in his favor by the terms of the receipt, and the most favorable view that can be taken of the ease from the evidence, in connection with the receipt, is that the plaintiff consented that the defendants might use the wheat, as they did, and replace the same with other wheat of the same kind and quality. Such an arrangement was a sale of the wheat, as we have attempted to demonstrate.

Judgment and order both affirmed, with costs.

Smith, P. J., Haight and Bradley, JJ., concurred.

Judgment and order affirmed.


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    THE CHARLOTTE IRON WORKS, Respondent, v. THE AMERICAN EXCHANGE NATIONAL BANK OF NEW YORK, Appellant, Impleaded with HOBART F. ATKINSON, Receiver of the City Bank of Rochester.

      Deposit of a draft for collection — when one receiving it in good faith, from the person with whom it was deposited, may hold it as against the true owner.

    The plaintiff, a domestic corporation, doing business at Rochester, hela a draft for $(3,500, accepted by one Dunning, payable December 19, 1882, at the National Exchange Bank of Auburn. The plaintiff sent the draft, several days before its maturity, to the City Bank of Rochester, where it kept an account, stating that it was sent for collection and directing that the proceeds be credited to its account. On December ninth the Oity Bank sent the draft to the Auburn bank, where it was payable, with directions to remit the proceeds when collected to the defendant, a bank doing business in New York, to be' placed by the latter to the credit of the Oity Bank. On December nineteen the bank at Auburn charged the amount of the draft to Dunning, drew its own draft on a New York bank to the order of the defendant’s cashier for the amount due, and sent the same to it by mail, stating that it was sent for the credit of the Oity Bank. The draft was paid on the next day and credited by the defendant- to the account of the Oity Bank which was then indebted to it in an amount exceeding that of the draft. The City Bank was insolvent on December nineteenth, and its doors were closed at three o’clock in the afternoon of that day:

      Held, that as it appeared that the defendant had received the draft and applied the amount thereof in the payment of a debt due from the City Bank to it, in good faith, and without notice of the source from which the money was derived, and without notice of the insolvency of the City Bank, it was entitled to retain the money so received and could not be compelled to account to the plaintiff therefor.
    Appeal from a judgment, entered upon the report of a referee directing a judgment in the plaintiff’s favor for the sum of $7,013.23.
    The plaintiff is a domestic corporation organized under the laws of the State of New York, located and doing business near the city of Rochester. The plaintiff held an acceptance of J. W. Dunning, its debtor, for the sum of $6,500, payable on the 19th of December, 1882, at the National Exchange Bank of Auburn. The plaintiff was the drawer of the draft on which the acceptance was written. Several days before the draft matured the plaintiff inclosed the draft in a letter to the City Bank of Rochester, where it had, and kept, an account, stating that the same was for collection and to credit to its account when paid. On the ninth of December the City Bank forwarded the draft to the bank at Auburn where the same was payable, with directions to remit the proceeds when collected to the American Exchange National Bank, the defendant, to be placed to its credit and to advise the City Bank of Rochester.
    On the 19th of December, 1882, the day the draft matured, Dunning had an account at the National Exchange Bank of Auburn, and that bank charged the amount of the draft to Dunning’s account, and issued its own draft on the National Park Bank of New York, payable to the order of Dumont Clark, cashier of the National American Exchange Bank, the defendant, for $6,496.75, and sent the same by mail on the evening of that day, addressed to the last named bank, stating that the draft was sent for the credit of the City Bank of Rochester, as requested by it. On the same day it advised the City Bank of Rochester, by letter, that Dunning’s acceptance was paid and that the proceeds had been sent to the American Exchange National Bank, to be placed to its credit as requested. The defendant, before nine and one-half o’clock on the morning of December the twentieth, received the draft on the National Bark Bank and the same was on that day paid and the avails credited to the account of, the City Bank of Rochester. The City Bank of Rochester, had no instructions or authority from the plaintiff, in relation to said draft or its proceeds, except those which have been stated, and on the day the draft matured the plaintiff had standing to its credit on the books of the City Bank of Rochester over $10,000, and that bank was a debtor to the plaintiff in that sum. On the nineteenth day of December the City Bank of Rochester was insolvent, and at three o’clock in the afternoon of that day closed its doors and thereafter did not resume business. On the next day an action was commenced at the instance of the attorney general, and a receiver appointed of its effects on the twenty-sixth of December. On the morning of December the twenty-first the plaintiff, by telegram, notified the defendant that the draft belonged to it, and was a collection for its account. The defendant, at the time it received, collected and credited the proceeds of the draft on the Park Bank, had no notice or knowledge-of the source or origin of the said - draft, except as is contained. in the letter of advice inclosing the same.
    On the trial the defendant offered to prove that it received, from the National Exchange Bank of Auburn, the draft, before it had any notice or knowledge of the failure of the City Bank of Rochester, and in the ordinary course of business, credited the amount thereof to the City Bank of Rochester; that at the same time the said defendant bank had no notice of the source from which the said money was derived; that the draft so credited was j>aid by the National Park Bank in the usual course of business, on the same day, through the clearing house; that at the time when the said draft was received and credited, the City Bank of Rochester was indebted to the defendant bank in a much larger amount than the amount of said draft; that the said draft was credited and applied on account of said indebtedness, and after such application the City Bank of Rochester remained a debtor to the defendant bank in a large sum of money.
    The facts offered to be proved were set out in the defendant’s answer. This offer of proof was rejected and the defendant excepted.
    WVid Coggswell, for the appellant.

      M. W. QooTc, for the respondent.
   Barker, J.:

The legal questions presented arise on the ruling of the referee rejecting the evidence offered. In our consideration the facts which such evidence would have established, constitute a perfect defense. The act of the plaintiff in placing the Dunning accept" anee in the hands of the City Bank of Rochester for collection gave it an apparent title to the draft and to the moneys collected thereon. The evidence given on the trial is not set forth in full in the case, and it was stipulated on the settlement that the evidence tended to prove the facts found by the referee. By the pleadings and the facts found by the referee we are made to understand that nothing appeared on the face of the draft indicating that the City Bank received the draft for collection. On presentation the acceptor paid the draft and the same was given up and canceled.

All persons dealing with the City Bank in the due course of business and in good faith, acting upon the assumption that it was the owner of the draft and its proceeds, and being ignorant that it was the mere agent of the plaintiff, the owner, are protected by well settled principles. By the several transactions had the Dunning acceptance was paid up in cash. There was no longer in existence any paper representing the plaintiff’s debt against Dunning. In legal effect the debt had been paid in money to the defendant. This money came to the defendant from one of its customers, who was its debtor, in the due course of business, with directions to credit the same on its overdrawn account. The transaction is the same and the defendant’s title to the money as good as if Dunning had paid the draft in currency and the Auburn Bank had remitted the 'identical moneys to the defendant in compliance with the order given to it by the City Bank of Rochester. The intermediate transaction, which was adopted by the bank in Auburn, to secure a transmission of the proceeds to the defendant was for its own convenience and was the customary mode of making remittances between those places. The collection through the clearing-house was, in legal effect’, the same as if the defendant had sent the draft for payment by its own messenger, and at the counter of the Park Bank had received the currency and returned it to the defendant, and the amount credited to the City Bank of Rochester as cash paid on its indebtedness. (Indig v. National City Bank, 80 N. Y., 100; First Nat. Bank v. Leach, 52 id., 350; Justh v. Bank, 56 id., 480; Turner v. The Bank of Fox Lake, 3 Keyes, 425.)

As a general rule where the trustee or agent has converted the subject of his trust or agency into money, and ,pays the same in the due course of business, in discharge of his own indebtedness, to one ignorant of the nature of his title, the, payee acquires a perfect and indefeasible one as against the real owner. In such a case the right to follow the money by the principal is gone.

In Stephens v. The Board of Education (79 N. Y., 183) the court, in commenting upon the facts of that case, said: It is said that the case is to be governed by the doctrine established in this State that an antecedent debt is not such a consideration as will cut off the equities of third parties, in respect to negotiable securities obtained by fraud. But no case has been referred to where this doctrine has been applied to money received in good faith in payment of a debt. It is absolutely necessary for practical business transactions, that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payor. Mon ey has no ear mark. The purchaser of a chattel or a chose in action, may, by inquiry, in most cases, ascertain the right of the person from whom he takes the title. But it is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce great confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to a risk of accounting therefor to a third person, who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considerations of public policy and Convenience, and to give security and certainty to business transactions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in the due course of business and in good faith upon a valid consideration.”

It was said by Lord Mansfield, in Miller v. Race (1 Burr, 452): “It (money) never shall be followed into the hands of a person who hona fide took it in the course of currency and in the way of his business.”

In the case of Stephens v. The Board of Education, the facts were, that one Q-ill owed the defendant, the Board of Education, a debt. He procured a loan of money from the plaintiff by means of a flagrant fraud, practiced on him and placed the same to his own credit in the bank where he kept his account. He then drew a check against his account in the defendant’s favor for the amount ,pf his debt, and the same was paid. The plaintiff discovered the fraud practiced on him and brought an action to recover the money from the defendant, and the defendant’s title to the money was sustained, the court holding that the action would not lie ; that money obtained by fraud or felony cannot be followed by the true owner into the hands of one -who has received it hona fide and for valuable consideration in the due course of business.

The case before us is in all respects parallel to Wood v. Boylston National Bank (129 Mass., 358). There the plaintiff was the owner of a note, the avails of which he sought to recover of the defendant. It was a negotiable note, indorsed in blank by the payee. Before it fell due the plaintiff delivered it to Jackson, an attorney-at-law, for collection, and he deposited it without his own indorsement to the defendant bank, and at the time of its maturity and payment Jackson was owing the bank, on account of advances and otherwise, more than the amount of the note. Nothing was said when it was deposited or before its payment as to Jackson’s title or relation to the note, and no advance of money was made to him on account thereof. It was held that the plaintiff could not follow the proceeds in the hands of the defendant, and a recovery was defeated.

We fail to discover in the cases cited by the respondent’s counsel any rule of law hostile to those which’ we have stated. In McBride v. The Farmers' Bank (26 N. Y., 450), the notes which came to the hands of the defendant and were paid to it by the maker after maturity, were sent to it by the Canal Bank, who had received them for collection from the owner, and forwarded them to the defendant for collection, wrch a request when paid to remit the proceeds. The defendant had no information that the Canal Bank was not the owner of the notes, but it did not discount the notes nor make any advances upon the credit of the same. Before the notes matured the defendant was fully advised that the Canal Bank had no title, and that the plaintiff was the owner, and when the notes were paid they were aware that the Canal Bank, who forwarded the notes for collection, had no title to the same.

Nor are the cases of the Grand Trunk Railway v. Edwards (56 Barb., 403); Ely v. Norton (3 Keyes, 397) in point, for the reason, that, in each of these cases the payee of the money had notice that the payor had no title, and that the same was held by him in a fiduciary capacity.

There is another class of cases which, in principle, sustain the defendant’s position, that it acquired a good title to the money. The rule to be gathered from these cases, as it has been stated in some of them, is this: where a factor dealing for a principal, but concealing that principal, deals in his own name, the person contracting with him has a right to consider him to all intents and purposes as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. (George v. Claget, 7 T. R. 355; 2 Smith’s Leading Cases, p. 77; Hogan v. Shorb, 24 Wend., 458; Keator v. Smith, 13 N. Y. Dig., 64 [Third Dept.]; Locke v. Lewis, 124 Mass., 1; Story on Bailments, § 390; Wright v. Cabot, 89 N. Y., 574.)

The City Bank of Rochester, when i't gave instructions that the avails of the collection should be" remitted to the defendant, intended and knew that, in the regular course of business, it would be applied upon its account and that the remittance, in whatever form it was made, would be in currency or its equivalent.

There is another circumstance which indicates that the plaintiff ■did not expect the funds in which the payment might be made would come into its actual possession, for its instructions to the City Bank were, to credit it with the proceeds, and in whatever form the payment might be made to the bank it would be used by it and the plaintiff credited with tbe avails, which was, in effect, an authorization to use the cash proceeds. The insolvency of the City Bank of Rochester has nothing to do with the question, as there is no pretense that knowledge of it came to the defendant until after it had collected the draft on the Park Bank and applied the proceeds.

Judgment set aside. New trial ordered before another referee, with costs to abide the event.

Smith, P. J., Bradley and Haight, JJ., concurred.

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


author: Barker, .J. :

text:
    JONATHAN CHAMPLIN, Respondent, v. THE VILLAGE OF PENN YAN, Appellant.

      Obstructions in a street — suspension of a banner across a street —liability of a village, to one who is injwrecl by his horse taking fright at it and running awaq — evidence— when it may be shown that sm/ila/r banners Time frightened othen' horses.

    An advertising banner, twenty-four feet wide and twelve feet deep, was suspended across one of the streets in the defendant village. The top was attached to a wire and ropes which were fastened to the tops of the buildings fronting on the street opposite to the banner. A rope led from one corner of the bottom to an awning post on the sidewalk, and one running from the other corner of the bottom was fastened to the sill of the window of a house. The jury found that the banner was an object likely to frighten horses ordinarily gentle and well trained.
    In an action by the paintiffi to recover damages sustained by being thrown from his buggy while his hprse, which had been frightened by the banner while passing under it, was running away:
    Held, that the banner was wrongfully erected across the street, and that it was the duty of the board of trustees of the village to remove it.
    That by allowing it to remain there for a considerable length of time they were guilty of negligence which rendered the village liable for the injuries which the plaintiff had sustained.
    Upon the trial the plaintiff was allowed to prove that on another occasion prior to his accident, a flag similar to the one in question had been suspended over • the same street in a similar manner, and that it had frightened other horses which were being driven along the street under it.

      Held, that the evidence was admissible to show the jury that horses are at times frightened and shy at objects, such as the banner in question.

      Appeal from a judgment, entered upon a verdict rendered at tlie Tates Circuit in the plaintiff’s favor for the sum of $850, and from an order of the Monroe Special Term denying the defendant’s motion for a new trial.

      John T. Knox, for the appellant.

      John Oillett, Jr., for the respondent.
   Barker, .J. :

The case is this: the plaintiff sustained injuries, to his person by being thrown from his buggy while driving along Main street in the village of Penn Yan. An advertising banner was suspended directly over the traveled part of the street between the curb-stones. The banner was suspended by means of ropes attached to the battlements and chimneys of stores on opposite sides of the street. A portion of the upper rope and the part directly over the street between the curb-stones was made of wire, so as to prevent the ban- . ner sagging in the center. The banner was made of seine twine, knit in meshes of two or two and one-half inches, and the letters were cut out of oil cloth and sewed on the netting. The banner was twenty-four feet long and twelve feet deep. It was stayed at the bottom by two guy ropes, one fastened to an awning post, standing in the street, on the outside of the sidewalk, in front of one of the stores to which the upper rope was attached, and the other was fastened to a nail or spike driven into one of the window sills of the store on the opposite side of the street. The lower line of the banner was from twenty to thirty feet above the surface of the street.

The proof on the part of the plaintiff tended to show, that, while the plaintiff’s horse was being driven along the street and under the banner, it took fright from the banner, became unmanageable and ran away, upsetting the buggy in which the plaintiff was riding. That this banner was such an object as was likely to frighten horses ordinarily gentle and well trained, has been found by the jury, upon evidence amply sufficient and satisfactory to warrant such a conclusion. The act of Sisson, who put up the banner, was unlawful on his part and greatly endangered the life and property of all persons traveling in carriages drawn by horses. The board of trustees had knowledge that th'is banner was suspended over the street, for it had befen up for a considerable length of time.

It is the duty of all municipal corporations organized under the laws of this State to keep the streets within their territorial limits-in a reasonably safe and secure condition, so that they may be safely used by the traveling public. The duty, when not expressly imposed upon the corporation by the terms of its charter, is based upon an implied agreement between a municipal corporation and the sovereign power of the State, by which the corporation agrees to keep the roads in a safe and secure condition, so that they can be used by the public at all times, and for a failure to discharge this duty the municipality is liable to a public- prosecution by indictment, and also to a private action at the suit of every person injured by such neglect. (Conrad v. The Trustees of the Village of Ithaca, 16 N. Y., 158; Requa v. The City of Rochester, 45 id., 129.)

It being within the power of the board of trustees to remove this object as soon as they knew of its existence, it was their duty to do so. The trustees are the agents of the corporation. Their negligence is, in law, the negligence of their principal.

The argument presented by the defendant is this: that it is not the duty of a municipal corporation to remove objects suspended over the street, fastened to supports wholly outside of the street, if they are elevated so high as not to actually obstruct the use of the road-bed or sidewalk. In this State the proposition, as stated, has never been approved by any reported decision, nor have I been able to find any rule or authority which supports the argument. I think the doctrine contended for was repudiated in Hume v. The Mayor (74 N. Y., 264). In that case the erection complained of as an obstruction to the street was an awning made of a permanent roofing of boards over the entire sidewalk, resting against the building and supported on the outer line by wooden posts standing in the ground, near the curb-stone, and was used wholly, for private purposes. This was held to be an unauthorized obstruction, or an encroachment upon the street, and the city was held liable to a person injured by its fall, for the reason that it was the duty of the city to remove it after notice of its erection. In the opinion of the court, no point was made of the circumstance that a part of the structure was supported by a post standing in the street. The court referred to several Massachusetts cases, with approval, where hanging objects were supported by fastenings in the face of the buildings which were standing on the line of the street, which were held to be unlawful obstructions. The cases to which I refer are, Pedrick v. Bailey (12 Gray 161); Day v. The Inhabitants of Milford (5 Allen, 98). The court in commenting on these eases said they are precisely in point upon the question whether such a structure, if in a. dangerous position or condition, is a defect in the street, which a municipal corporation, in pursuance of its general duty, is bound to remove or repair. It has been repeatedly held that it is the duty of a municipal corporation to remove objects deposited upon the streets, the natural effect of which is to occasion accidents, frightening horses of ordinary gentleness, although the objects were placed wholly outside of the traveled part of the road-bed.

In Eggleston v. The Columbia Turnpike Co. (18 Hun, 146), the. court remarked: the more common cause of injury and liability are structural defects or means to repair the road-bed ; but a road may also be rendered unsafe, with consequent liabilities therefor, by unsightly objects placed or permitted to remain upon it, which are calculated to frighten animals employed thereon. (See, also, Sherman and Redfield on Negligence, § 388; Morse v. Richmond, 41 Vt., 435; Winship v. Enfield, 42 N. H., 199; Dimock v. Suffield, 30 Conn., 129; Bennett v. Lovell, 18 Alb. Law Jour., 303; Harris v. Mobbs, Id., 382.)

We are unable to discover any sensible reason for holding that an object permanently suspended directly over the traveled part of a highway, although fastened to supports outside of the limits of the same, is not an obstruction to travel, if it naturally tends to frighten horses of ordinary gentleness. Such an object drives travel from the street over which it is suspended, because discreet persons will avoid the risk and danger incident to an attempt to pass under the same. It endangers travel and makes it perilous to all travelers riding in conveyances drawn by horses. Such an object placed in a place so conspicuous as this banner was, within the plain sight of horses, is to be distinguished from objects which are suspended over sidewalks and fastened to the face of a building, like a sign or a bracket fastened in the face of a building, on which traders display their goods, or a show case standing in front of a store.

In many of the eases cited the argument is rejected that a roadbed can only be rendered defective by something in or upon the road itself, as being narrow and unreasonable. (See Norristown v. Moyer, 67 Pa., 365; Grove v. The City of Fort Wayne, 45 Ind., 429.)

The plainlifE was permitted to prove that on another occasion, prior to this accident, a flag similar to this in appearance, suspended over the same street and in a similar manner, did frighten other horses when driven along the street under "the same. The objection made to this evidence was put upon the ground that it was • incompetent. We think that the evidence was properly received, as showing to the jury that horses are at times frightened and shy at such objects. Some of the jury may have been ignorant of the habit of horses and of their, natural tendency to be frightened at objects which they are not accustomed to see. . It was certainly competent to prove how such sights are likely to disturb horses of ordinary gentleness when driven before carriages, and in places where they are not accustomed to pass. The witness by whom this fact was proved was an acting trastee at the time of the accident, and consented that this banner might be suspended over the street, and on his cross-examination he- testified that his own place of business was near by and on the same street; and that he never saw any horse frightened at the flag; and that he did not know that floating flags were objects at which horses took fright. It was competent to show that this witness had knowledge, at the time he gave consent, that such objects were dangerous. For these purposes the evidence was entirely competent.

As a matter of fact, this object was in part supported and kept in place by being fastened to a post standing in the highway, and while we place no stress on this circumstance, in holding that it was the duty of the defendant to remove this object as an obstruction to the street, we refer to it for the purpose of showing that it makes the case, in all essential particulars, similar to Hume v. The Mayor (74 N. Y., 264), already cited.

The judgment and order appealed from are affirmed, with costs.

Smith, P. J., Bradley and Haight, JJ., concurred.

Judgment and order affirmed.