text:
    Isaac C. Ogden, Jr., Resp’t, v. Henry W. Pope, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Bills and notes—Bona fide.holder—Bubden of proof.
    In an action on a promissory note, the defense being fraud in its in- ■' ception, the burden is on the plaintiff to show that he had no knowledge or notice of the transaction which affected the validity of the note, and! therefore the defendant is entitled to give evidence of the fraud without. first proving that plaintiff had notice of the same, even though plaintiff is allowed to give evidence of his being a bona fide holder for value and without notice while presenting his case in chief.
    Appeal from an affirmance by the general term of the city court of a judgment in favor of the plaintiff entered upon the verdict of a jury directed by the court.
    The action was brought upon the following promissory note
    “ $370.14. Elizabeth, FT. J., Sept. 14, 1890.
    “ One month after date I promise to pay to the order of myself three hundred and seventy and fourteen one hundreths dollars at, First Hational Bank of Elizabeth, FT. J.
    “ Yalue received.”
    “Henry W. Pope.”
    The defense denied the making of the note and the other allegations of the complaint, and alleged that defendant had delivered a blank form of note signed and endorsed by him to one Browne,. writh authority to Browne to fill up the blanks and then use the-note to obtain money for a specific purpose, and that Browne-did not do so but retained the blank, and afterwards he or some-other person without authority from the defendant filled up the same so as to make the note described in the complaint, which was afterwards and before it had any legal inception dismounted at a usurious rate of interest.

      Howard T. Stillman, forapp’lt; Charles De H Brower, for resp’t.
   Daly, Ch. J.

The plaintiff testified that he bought the note in ¡suit the day after its date for the sum of $362.64, which was a discount at a rate of interest greater than that allowed by law. He testified that he bought it from one Brower, who was acting as agent for one Kloek, and that he knew nothing of any other party. Brower was sworn, and testified that he received the note on the day of its date from Kloek with a request to sell it for him, which he did, receiving plaintiff’s check for it and thereupon -remitting his own check to Kloek after deducting his fee of $2.50, and that Kloek said nothing to him as to whether he was acting ns principal or agent.

Plaintiff having rested his case, defendant went on the stand to prove his defense, but under objection from plaintiff was not permitted to state at what time he signed the note and whether he received any consideration for it. He was then withdrawn, and .Kloek was called on his behalf, who testified that he first saw the note in possession of one Browne, that it was in blank, and that Browne filled in the blanks at his office and left it with him as his attorney, and that' the witness gave it to Brower to dispose of..

Plaintiff proceeded by cross-examination of Kloek to show -authority in Browne to fill up the note as he did. Kloek swore that he had acted as umpire between Browne and the defendant -under a written agreement, by which they submitted to him all •differences between them growing out of their relations together in the Cayuga Lake Park Company and the Seneca Falls & •Cayuga Lake B. B. Co., and agreed to abide by his decision as to which of the parties was indebted to the other and as to the .amount due, and that he had decided that defendant was indebted to Browne in the sum of $86.06, his decision being in writing dated December 2, 1889; that the $86.06 was included in the amount for which the note was filled out by Browne, together with $40 for the witness’ services as umpire; $125 for a claim of Browne against defendant for one-half of a bill settled by defendant, in which both the latter were jointly interested ; $98 for a violin belonging to Browne which he had lent to defendant, and $21.10 interest, making an aggregate of $370.14, the amount for which the note was filled up.

A letter of defendant to Browne on February 15, 1890, was read in evidence authorizing the latter to make a note for $86, the amount of the award, at four months from February 15th, with interest from the date of the award at six per cent. This letter ref erred to “ other matters,’’ leaving them to Klopkto decide, but did not enumerate them nor- provide that they were to be included in the note. .A letter from the defendant of September 30, 1890, to the witness, Kloek, questions the latter’s bill of $40 for services as referee, if it does not altogether repudiate it.

No authority whatever, therefore, from defendant to include in the note any item except the $86.06, the amount of the award, was shown, and defendant then again offered himself as a witness to prove that no such authority was given and that he did not owe Browne the items mentioned. He also offered letters of Browne’s, offering to return the blank note on the receipt of $86.06. All this evidence was excluded upon plaintiff’s objection, and the court, upon plaintiff’s motion, ordered a verdict for the plaintiff, denying the defendant’s request to go to the jury on the fact whether the plaintiff had shown himself, by affirmative proof, to be free from knowledge of the fraud in the note. To the rulings complained of the defendant excepted. All the testimony ruled out was excluded upon the ground that the defendant must show that the plaintiff got the note with full knowledge of the defense, if any, that existed between defendant and Browne.

The trial seems to have been conducted upon an erroneous, view of the law as to the burden of proof. The defendant should have been allowed to prove his defense and the burden "would then have been cast upon the plaintiff to show that he bad received the note for full value and without notice of the equities between the original parties. By permitting the plaintiff to offer-evidence of this in1 the first instance and then shutting out proof of the defense until the defendant could show notice to the plaintiff, the burden of proof as to good faith was wrongfully shifted to the shoulders of the defendant and he was deprived of the advantage to which he was entitled. Nickerson v. Ruger, 76 N. Y., 279. The defendant was not bound to prove notice to the plaintiff of the facts connected with the execution of the note. On the contrary, the burden was upon the plaintiff to show that he-had no knowledge or notice of the transaction which affected the validity of the paper. Vosburgh v. Diefendorf 119 N. Y., 357; 29 St. Rep., 448.

Another injustice resulted to defendant from the erroneous ruling. He was precluded from offering proof of his defense of usury. He could not enter upon that defense until he had 'proved the facts relating to the making and delivery of the note so as to establish that its first inception was the discount of it by the plaintiff. To do this he had to prove that Browne was not a bona fide holder, having no authority to fill up the note for the-sum inserted in it. If it appeared that the first legal inception of the note took place upon its discount by the plaintiff, and that, was at a greater rate than legal interest, no recovery could have-been had upon it.

There is no force in the contention of respondent that the note-was enforcible for the full amount in the hands of the plaintiff because it was enforcible in the hands of Browne for at least the sum of $86.06, he being concededly authorized to fill it out for that amount. It isonot probable that Browne could violate his. authority by inserting an excessive amount and then recover upon the note for what was actually due. It was held to be forgery for a person having a blank signature of another which he was authorized to fill up with a check or bill for a limited amount to-write one for a larger amount. See cases cited in Van Duzer v. Howe, 21 N. Y., 537. The case cited by respondent, Forman v. Wright, 11 C. B., 481, was that of a note procured by misrepresentations to the maker as to the amount actually due from him. A recovery was allowed for the actual sum owing, but in that case the note was the maker’s note for the whole amount and not an instrument which the law characterizes as a forgery, and the defense was in effect merely a partial failure of consideration. The rule is that the maker of a note who delivers it in blank to another with authority to fill up the blanks for a certain amount and such authority is exceeded, is bound to a bona fide transferee for value, but this does not help the case for the plaintiff as it .stands; for by the rulings of the court upon the trial the plaintiff on the strength of his prima facie case was assumed to be a bona fide holder, and upon that assumption all evidence in support of the defense was ruled out until the defendant could establish to the contrary. Upon this theory of trying actions upon promissory notes it would not be possible to prove a defense in order to cast the burden of proving good faith where it belongs, upon the holder of the paper.

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

Bischoff, J., concurs


source: Caselaw Access Project

author: Daly, Ch. J.

license: Public Domain

text:
    Julia A. Stevens, Resp’t, v. Spencer Trask et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Principal and agent—Evidence as to agency.
    Plaintiff brought an action to recover the proceeds of five bonds delivered by her to her husband, and by him delivered to defendants to be credited on his account, and on the trial testified that her husband had authority only to collect, and not to sell, and that defendants were aware of this fact; bpt, it was shown that several years before bringing the action, plaintiff had given an order for the dividend on certain stocks, held in her name, which were purchased by her husband for her with part of the proceeds of the bonds, and afterwards wrote, defendants a letter repudiating an attempted transfer of the stocks. Reid, that a judgment for plaintiff should be reversed, as her testimony was contradicted by her own writings.
    Appeal from a judgment of this court entered upon the ver■dict of a jury in favor of the plaintiff for $7,251, and from an order denying the motion for a new trial upon the judge’s minutes.
    • The action was brought to recover from the defendants the proceeds of five bonds of $1,000 each of the Delaware & Hudson Canal Company, payable July 1, 1884, which plaintiff ■claimed she caused to be delivered to the defendants for collection about said date. The defense was that the proceeds of the bonds were paid by the defendants to the husband of the •plaintiff from whom they were received for collection, he representing himself to be the owner of the same, and that such payment was made in good faith and without any notice of the plaintiff’s claim.

      Hasten & Nichols (.Arthur S. Hasten and O. P. Anderson, of counsel), for app’lts; C. C. & S. F. Prentiss (6r. W. Coiterill, of. counsel), for resp’t. . "
   Daly, Ch. J.

The evidence is undisputed that the bonds-were delivered to the defendants by the plaintiff’s husband, Thomas W. Stevens, together with the usual form of irrevocable stock power executed by the plaintiff in blank. The act of the plaintiff in entrusting these documents to her husband invested him with the indicia of ownership and conferred upon a purchaser in good faith for value a perfect title not affected by any equities between plaintiff and her husband. McNeil v. Tenth National Bank, 46 N. Y., 325.

The defendants were holders for value because they credited the proceeds of the bonds upon the account of Mr. Stevens with them, for stocks which they had just purchased for him. Were they purchasers in good faith without notice of plaintiff’s title t Mr. Stevens swears that he told Mr. Peabody, one of the defendants, that the bonds belonged to his wife and were to be collected for her. This is positively denied by Mr. Peabody, and if the case for the defendants rested there without corroboration it: would have been oath against oath, Losee v. Morey, 57 Barb., 561; Raines v. Totman, 64 How., 493; Griffiths v. Hardenbergh, 41 N. Y., 471, and they would not have sustained the burden of showing that they were purchasers*in good faith. C. N. Bank v. Diefendorf, 123 N. Y., 200; 33 St. Rep., 389.

But the preponderance of proof on this branch of the case is with the defendants, for it appears from the written evidence in the case that the bonds were delivered to the defendants by Mr. Stevens after a letter from them to him requesting margin, or security, upon his account with them ; and that when the bonds-were received by them from the New York State National Bank,, upon Mr. Stevens’ order, they wrote informing him of the fact, and stating that they placed them to his account. There was no-evidence that Mr. Stevens repudiated this disposition of the bonds, but on the contrary his wife’s counsel offered in evidence a. monthly statement received by him from defendants showing a credit upon his account of the proceeds of these bonds, which statement he had retained for years without objection. The letter demanding the margin bore date June 23, 1884; the letter-acknowledging the receipt of the bonds and crediting Mr. Stevens’’ account with the proceeds bore date June 24, 1884, and the statement bore date July 31, 1884. This action was commenced June-28, 1889.

If Mr. Stevens had placed these bonds in the hands of defendants to collect for his wife we should expect him to immediately object to the disposition which defendants had made of the proceeds and to demand that they be paid over or placed to the-account of his wife. Instead of doing so he acquiesced in a disposition of them which is consistent only with Mr. Peabody’s version of the transaction, that they were delivered to be collected and credited upon Mr. Stevens’ account, which at that time-showed an indebtedness of $6,012.50 on the purchase of a hundred shares of Western Union stock, and that Mr. Stevens assumed and exercised the right of ownership over them without any notice that they belonged to his wife.

But if the case is to turn upon the question whether the plaintiff had sustained the onus which rested upon her of proving that these bonds were originally delivered by her to her husband for the purpose of collection only, the clear preponderance of evidence is against her. From the time of the execution and delivery of the stock power to her husband in 1884, and for nearly five years, it is not shown that she made any inquiry concerning the disposition óf the proceeds of these bonds. It is shown that on July 23, 1884, the defendants delivered to her husband fifty shares <of Western Union stock registered in her name, which were part of the shares paid for by her bonds ; that on September 25,1884, .she signed an order upon the Western Union Telegraph Company for the payment to the defendants of a divideiid of $37.50 on said fifty shares of stock; that on December 24, 1884, she signed a similar order for a dividend of $75 ; that on July 7, 1887, she signed a communication to the defendants saying that the fifty shares of Western Union standing in her name and held by them were to be regarded as standing against the account of her husband to afford them additional protection, and that on December 5, 1887, she wrote to the defendants as follows: “I understand that fifty shares of the stock of the Western Union Telegraph ■Company, and one hundred shares of the American Cable Company, standing in my name, and which belong to me, are in your possession, with a transfer of power signed in my name by Mr. Stevens as my attorney. I neither know of nor authorized such signature, and have to request that you will return to me the ■certificates.” Mrs. Stevens is not positive whether she signed or did not sign the communication of July 7, 1887, authorizing the ■defendants to hold her Western Union stock against the account of her husband, but her husband admitted it, and it seemed to have been treated on the trial as genuine. There is, however, no -question about her signature to the other papers.

The admittedly genuine documents signed by the plaintiff in 1884 and 1887 show that she knew of and ratified the purchase .and transfer to her of fifty shares of the Western Union stock. They were part of the shares paid for out of the proceeds of her bonds. She does. not attempt to account for their acquisition in any other way. She not only knew of and claimed them as her property, but in 1884 turned over the dividends to her husband’s brokers. This written evidence furnished by her near the time •of the original transaction and her course of conduct for years, all •■showing that her husband had authority to make the disposition -of her bonds which he exercised in turning them over to the defendants for his own account, is inconsistent with her denials made upon the stand as a witness in her own behalf. A judgment which rests solely upon the weight to be attached to the credibility and recollection of a party who is of course interested in the result, and who is contradicted by the party’s own writings and conduct, should not be permitted to stand. Kehr v. Stauf, 12 Daly, 115, and cases cited.

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

Bischoff, J., concurs.


text:
    John W. Young, App’lt. v. Sophia Young et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Settlement op case—Notice op exceptions.
    Plaintiff merely served his exceptions to the court’s refusal to find certain1 facts on defendant’s attorney, and incorporated them in his proposed case on appeal, but failed to file a notice of exception in the clerk’s office as-required by § 994 of the Code. Held, that on settlement of the case, the judge properly struck out such exceptions, with the requests and refusals to which they referred.
    Appeal from order of the special term denying plaintiff’s-motion for a re-settlement of the case, or for an order restoring his-requests, refusals and exceptions to the case, as originally proposed.

      Bullard & Shannon, for app’lt j Beyo, Buer &' Bauerdorf for resp’ts.
   Daly, Ch. J.

The plaintiff submitted to the judge by whom the case was tried, without a jury, certain requests for findings of fact and of law which were refused. If he desired to except to-such refusal, he was required to file a notice of exception in the clerk’s office, and to serve a copy thereof upon the attorney for the-adverse party. Code, § 994. It appears from the affidavit made-on his behalf" upon the motion, that he merely served his exceptions to the decision upon his adversary, and incorporated his-exceptions to the refusals of his requests in his proposed case on appeal. On settlement of the case, the judge struck out such exceptions, together with the requests and refusals to which they referred. A motion to restore them , to the case was made and denied, and from the order entered upon such denial this appeal, is taken.

It is apparent that the order was correct. While the case should contain so much of the evidence and other proceedings as-is material to the questions to be raised, and also the exceptions, taken by the party making the case, Code, § 997; 2 Rumsey’s Practice, 391, it should not contain exceptions which had not been duly and properly taken, nor any of the proceedings to-which those exceptions refer. Refusals to fin'd in accordance with requests are rulings upon a question of a law, Code, § 993,, and exceptions to rulings upon questions of law must be filed in the clerk’s office, so that they may be either inserted in or annexed to the judgment roll. Sec. 994.

The judge who disposes of the requests may either file or return them to the attorney, § 1023, but whichever course is adopted it is the duty of the latter, if he wishes to take a valid exception to the disposition made of them, to file such exception with the clerk and serve a copy upon his adversary within ten days after he receives a copy of the decision of the court and notice of the-entry of judgment thereupon. Sec. 994.' zThe language of that- and the preceding section excludes the inference that the exceptions to be so filed are only the exceptions to the facts found in. support of the decision. The words of the‘sections apply to all exceptions to all rulings upon request and a literal compliance with the enactment involves neither hardship nor inconvenience..

Order affirmed, with costs.

Bischoff, J., concurs.


author: Macomber, J.

text:
    John Lindsay, Resp’t, v. Lute S. Tansley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Justices’ court—Summons—Code Civ. Pro., § .2877 not jurisdictional..
    An objection that a summons issued by a justice of the peace was issued more than twelve days before the return thereof must be made before the justice upon the return day, and cannot be raised for the first time on appeal.
    Appeal by the defendant from a judgment of the county court-of Genesee county, entered on the 10th day of October, 1891,. affirming a judgment of a court of justice of the peace.

      William M Prentice, for app’lt; H. B. Cone, for resp’t.
   Macomber, J.

This action was brought upon a promissory-note executed by the defendant. The summons of the justice of the peace was properly served upon the defendant on the 26th day of June, 1891, and was returnable on the 6th day of July of that year. The defendant made default before the justice of the peace, and judgment was accordingly taken against him upon proper evidence. On appeal to the county court, the point was made for the first time for the counsel for the defendant, that inasmuch as-the return of the justice of the peace showed that the summons was issued on the 22d day of June, 1891, more than twelve days-before the return thereof, the justice had not jurisdiction to hear the case, and that, consequently, the judgment pronounced by Mm should be reversed.

Section 2877 of the Code of Civil Procedure, provides that the1 summons must be returnable at a time therein specified not less, than six days nor more than twelve days after the date when it was issued.

We are of the opinion that this direction of the Code is not jurisdictional, but that it relates to practice and procedure only, and that in order for a party to avail himself of an objection of tMs character, it is incumbent upon him to appear before the justice and to raise the question. Undoubtedly, had the defendant-so acted, and it had been made to appear to the justice as a matter of fact, that the summons was actually issued more than twelve days before the date, of its return, he would have dismissed tho case. In the return made by the justice to the county court, it appears that the summons was dated on the 22d day of June, 1891, and the justice, without having his attention called to the fact, certified that it was issued on that day. • The appellant’s counsel insists that such fact appearing in the return of the justice is conclusive, and that the defect is available upon appeal.

In this we cannot concur with him. We think it is incompetent for the appellant by pointing out mere verbal defects in a record made by a justice in his return, to insist upon the reversal of the judgment when such defect, if it in fact existed, might have been obviated at the trial or shown to have been a mistake in fact. It was the duty of the defendant, in order to avail himself of any supposed irregularity of this kind, to appear and raise the question at the inception of the case.

It follows that the judgment appealed from should be affirmed.

Judgment of the county court of Genesee county appealed from, affirmed, with costs.

Dwight, P. J., and Lewis, J., concur. ■


text:
    Theodore Kirsch, by Guardian, et al., Resp’ts, v. Orange L. Tozier et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Trustee—Mortgage—Wrongeul discharge.
    A trustee, who held a mortgage for the benefit of minors, obtained title to the mortgaged premises, and satisfied the mortgage. Subsequently he borrowed money of a bank, and gave it a mortgage on the property in question, the bank having no knowledge of the prior mortgage, other than ■a single memorandum in the abstract furnished by the county clerk and which certified it as discharged. In an action by the persons named as .cestuis que trust to reinstate the mortgage for their benefit, Held, that the mortgage should be so reinstated, taking precedence over the one to the bank, it being chargeable with • constructive notice of the irregularity of the discharge by defendant.
    Appeal by the defandant, Orange L. Tozier, from a judgment -entered in Wyoming county September 80, 1891, on the report of., a referee, with notice of the intention to bring up for review an -order granting an additional allowance of costs. Appeal, also, by the defendant, the Buffalo Savings Bank, from the judgment.

      I. Sam. Johnson, for app’lt, Orange L. Tozier; Spencer Clinton, for app’lt, the Buffalo Savings Bank; F. C. Peck, for resp’ts.
   Macomber, J.

This action was brought to reinstate a mortgage executed by the defendant, Lester H. Tozier and his wife, to the defendant, Orange L. Tozier, which was made in trust for the plaintiffs, Michael Kirsch and Theodore- Kirsch, and for Peter Kirsch, now deceased, minor children of John Kirsch, to set aside a dischargé of such mortgage executed by Orange L. Tozier, and for foreclosure of the mortgage and sale of the mortgaged premises for the benefit of the persons named as cestuis que trust.

The lands in question consist of 102 acres situate in the town of Sheldon, Wyoming county, New York, of which John Kirsch died seized in the year 1872. On the 8th day of January, 1873, the defendant, Orange L. Tozier, was appointed general guardian of the infant children, Michael J., Theodore and Peter Kirsch. At the time of Ins death John Kirsch owed debts which with the incumbrances upon his real estate exceeded the value of both his personal and real property. Orange L. Tozier and Elizabeth Kirsch, the latter the widow of the deceased, were appointed ad ministrators of the estate of John Kirsch. Subsequently to this_ it was agreed between them and Lester EL Tozier, a son of Orange L. Tozier, that they should purchase the mortgages then existing; on the farm, foreclose them, and procure a title to the land, and. convey the same to Elizabeth Kirsch, who should, in turn, by mortgage thereon, secure Lester EL Tozier the amount paid by him, and give a mortgage upon the farm of $1,000 to these three-children. This arrangement was carried out, except that upon a sale-of the lands, either by direct purchase at the sale or by deed coming immediately from the purchaser, Lester H. Tozier became-the owner for the consideration in all of $1,131.56.

Thereupon it was further arranged between Orange L. Tozier and the widow, Elizabeth Kirsch, that the widow should convey to the then holder of the title, Lester EL Tozier, all her interest in the lands to which she was entitled as widow, and that a mortgage-should be executed by Lester H. Tozier to Orange L. Tozier intrust for the three children in the sum of $1,000, one-third thereof payable to each of the three children when he should arrive at age, with interest in the meantime. Having received the deed from Mrs. Elizabeth Kirsch, Lester H. Tozier and his wife-executed to Orange L. Tozier, in trust for Michael Kirsch, Peter Kirsch and Theodore Kirsch, the mortgage in question, dated the 15th day of October, 1875, expressing a consideration of $1,000, payable as follows : The sum of $333.33 November 13, 1887, the sum of $333,33 March 18, 1891, and the sum of $333.33 October 6, 1892, with interest payable annually from the 1st day of April, 1876. This instrument was delivered to Orange L. Tozier, who caused the same to be recorded in the proper clerk’s office on the 23d day of October, 1875. The mortgagee and trustee paid the interest upon this mortgage to Elizabeth Kirsch, the mother of the children, in pursuance of a previous arrangement, until the spring of 1886, since which time no part of the principal or interest has been paid thereon by the trustee for the benefit of either of the children.

On the 3d day of September, 1883, Lester H. Tozier and his-wife executed and delivered a deed of the farm to Orange L. Tozier at a consideration, as expressed in the deed, of $4,000, and the record title of such farm has since been in Orange L. Tozier. After acquiring this title, and on the 19th day of February, 1886, Orange L. Tozier executed and acknowledged a discharge of the-mortgage, and caused the same to be recorded in the proper-clerk’s office on the 9th day of March, 1886. On the 27th day of January, 1886, before the execution of such discharge, Orange L. Tozier applied to the defendant, The Buffalo Savings Bank, for a loan of $2,000 upon this farm, which application was granted on the 1st day of February, 1886, and on an examination of the title of such farm, submitted to the officers of the bank, there was an abstract certified by the proper clerk of Wyoming-county to the effect that Orange L. Tozier appeared to be the-owner of the farm. On such abstract a memorandum of the mortgage sought by this action to be reinstated described the. mortgage simply as being given for $1,000 and interest, having written across the face of the memorandum as follows:

“ Discharged March 9, 1886.
“ E. M. Jennings, Olerh."

The defendant, The Buffalo Savings Bank, at the time of taking its mortgage and advancing the money thereon, had not, either through any of its officers or attorneys, any knowledge or notice •of the existence of this mortgage now sought to be reinstated in this action, except the memorandum on the abstract of title of its discharge, and the constructive notice given by the record of such mortgage.

Under these facts, we think the learned referee was correct in granting to the plaintiffs the relief sought by this action. By the terms of this trust mortgage there was disclosed by the record thereof in the county clerk’s office a notice to all persons, that it had been executed for the benefit of the three minor children of. John M. Kirsch, deceased. That this trust, or this trust power, 2 R. S., 729, § 58, was valid admits of no doubt; for the beneficiaries were minors. Its execution or non-execution did not •depend on the will of the mortgagee; on the contrary his obligation was imperative, and imposed a duty on him the performance of which may be enforced in equity, for the benefit of the parties interested. 2 R. S., 734, § 96. It was not competent for Orange L. Tozier to repudiate the trust; on the contrary he was bound to •carry the same out faithfully. After the mortgage had once taken effect, it became irrevocable and its operation could not be affected by any subsequent act of the mortgagee, by way of repudiation, iti discharging the lands from the lien of the mortgage, or in any other way impairing the rights of his wards. Wallace v. Berdell, 97 N. Y., 25. The question, therefore, as against the appellant, -Orange L. Tozier, is not difficult of solution upon the merits of the transaction.

A point, however, is made by his learned counsel, that the remedy adopted in this case was not the correct one; that the plaintiff should have made a demand upon the trustee that he foreclose the mortgage, or failing in that, that he-should be called to an account, and should be required to pay only the difference between the sum that he had apparently deprived the cestuis que trust of, and the actual moneys expended by him in their behalf. But wre cannot follow their lead in the direction of this argument. It would be an expr&ssion of a fatuous confidence to expect that this trustee, after having discharged of record the mortgage which he held in trust for infants, thus violating to the full extent of his ability the trust imposed in him, should himself be entrusted by the court with the duty of restoring the mortgage to its proper record, and of vindicating the integrity of the trust which lie had so wantonly violated. The case must, therefore, be treated in respect to the remedy on the theory that the trustee has no disposition, and under the circumstances no power, to repair the injury to his wards which,he has deliberately wrought, and the case "must be permitted to proceed against him in invitum.

In respect to the appeal taken by the Buffalo Savings Bank, a •different question is presented. The provision for the payment -of the principal of the trust mortgage was sufficient, in our judgment, to put any person examining the records upon inquiry, and •on such inquiry the fact would have been easily ascertained, even though imperfectly disclosed in the mortgage itself, that the minors would arrive at their majority, respectively, at the very ■dates when these several sums of principal were made payable. The learned referee has charged this appellant with such constructive notice of the terms of this trust mortgage, and with constructive notice of the irregularity of its discharge, placing his decision mainly upon the case of McPherson v. Rollins, 107 N. Y., 316; 12 St. Rep., 488. In that case, a person, for the purpose of making a provision for his daughter and two grandchildren, conveyed to his daughter certain lands, and received from her a mortgage back thereon which stated that it was given as security, among other things, for the payment to him, or to the general guardian of the plaintiff in that action, one of the grand-daughters, of the sum of fifty dollars annually, for the benefit of-that plaintiff until she should arrive at the age of fifteen years, and thereafter the sum of one hundred dollars until she should arrive at the age •of twenty-one years. Both instruments were recorded. The mortgagee thereafter, and without consideration, executed a certificate of the satisfaction of the mortgage, which was recorded, .and a memorandum was made in the margin of- the record of the mortgage to the effect that is was discharged of record. Subsequently the lands were-conveyed for a full and valuable consideration to a grantee who had no actual notice of the execution -of the trust mortgage. In an action to foreclose that mortgage, which had actually been discharged, it was held that a valid and irrevocable trust was created by it, and as the same had in no way been renounced by the cestui que trust, the discharge was in con • travention of the trust and consequently void. It was there further held that the grantee -was chargeable writh notice that the plaintiff had a beneficiary interest under the mortgage, and the ■satisfaction thereof was an act, not in the execution of the trust, but beyond the power of the trustee to perform.

Danforth, J., in delivering the opinion of the court, said: “ The important inquiry before the referee was whether the defendants had any notice, actual or constructive, of the plaintiff’s rights, or of the character in which Deming held the mortgage. His finding that they had no actual notice reduces our inquiry to the effect of the recording act As intending purchasers, they must be presumed to investigate the title and to examine ever) deed or instrument forming a part of it, especially if recorded. They must, therefore, be deemed to have known every fact disclosed, Acer v. Westcott, 46 N. Y., 384, and every other fact which an inquiry suggested by those records would have led up to. Thus they are plainly chargeable with notice of the mortgage and of all the facts of which the mortgage could inform them.”

The last named cause was tried before the venerable jurist, the late Addison Gardiner, and was the last important case decided by him; and of his opinion, then delivered, which has been furnished to us and upon which his decision in that case was affirmed by this court, it is not too much to say that in grasp of facts and of law, and in its vigorous judicial style, it shows no-diminution of those rare judicial powers exhibited by him in his-first opinion, delivered thirty-five years before, contained in the.first appeal in the first volume of the Court of Appeals Reports. Inasmuch as that opinion has never found its way into the reports, and as it expresses accurately our views of the case now before us, a quotation from it may not be deemed out of place. Judge Gardiner said: “ The next important question presented is whether these defendants had, at the time of their purchase, constructive notice; or what is the same in effect, notice to put them on inquiry as to the trust in question. The leading purpose of the recording acts, it is supposed, was to enable purchasers of real estate, and those having liens upon it, to protect themselves, and the public against the frauds of previous owners and the-claims of subsequent purchasers and incumbrancers, by spreading; upon the records of the appropriate county a statement of their respective claims or their discharge, which should constitute a notice to all persons obtaining, or seeking to obtain an interest in the lands designated of the matters contained in such statement. These acts, as construed by our courts, require due vigilance upon the part of those giving this notice and of those affected by it. The one must record his claim and the other search for it with all reasonable expedition and thoroughness. Heilbrun v. Hammond, 13 Hun, 479; Viele v.Judson, 82 N.Y., 32, and cases; Ely v. Scofield, 35 Barb., 330. In the case last cited, the mortgage had been assigned but the assignment was not recorded; then the mortgage was discharged by the only person apparently authorized to secure payment, and the discharge duly recorded ; due search disclosing no defect in the title, a purchaser in good faith relying upon the discharge was protected against the claim of the assignee and the lien of the mortgagee. In Viele v. Judson, supra, the assignment was first-recorded and the mortgagee subsequently executed a discharge which was’ also recorded; the purchasers relied upon the discharge without search for the assignment; held, that the record which showed the discharge showed also its invalidity. The same doctrine for like reasons is affirmed in 13 Hun. In view of these decisions what is the situation of these parties ? Thera ortgage of the 14th of July was duly recorded with the deed to-which it referred, and through which the Rollins derived title to these premises. The mortgage declared the trust, the power of the trustee, the age of the cestui que trust, and, consequently, the inability of the trustee to discharge the investment in their favor and that of the infants to sanction such change even if desirable ?n (Citing authorities.) “ Having given public notice of the claim of their children on the records in the clerk’s office, those who acted in their behalf had done all in their power to protect their interest and secure the public against the fraud of former owners and mortgagees. The Rollins, on the other hand, had concluded their purchase without causing a personal examination to be made.. They undoubtedly, believed they had secured a good title, a belief induced mainly by their confidence in those with whom they dealt, and partially confirmed by a defective search, procured by Mr. Janes and shown to them, in which the Gray and Stevens mortgages of the 14th of July Were omitted as though never executed or recorded. Such an omission from a paper purporting to give a history of matters affecting the title to lands, gathered from the records, was erroneous and misleading. It seems in this case to have been exceptional also, since a subsequent mortgage to one Allen, although discharged, is noted and the facts stated as they should be. The notion that a discharge expunges the mortgage and leave the record tabula rasa is absurd. The record always remains, but whether as evidence of an existing lien or not will depend upon the character of the certificate and the authority of the person assuming to execute it. In this case, the whole record, if diligently examined, would disclose the trust, the age of the beneficiaries, and that Deming as their trustee could not discharge the lien of the mortgage to the prejudice of minor children; while he possessed full power in that respect as to his own annuity.

“ As in Viele v. Judson, supra, the record which showed the discharge, if followed out, would prove its invalidity. The records invited investigation, the discharge pointed directly to the record of the mortgage, book and page ; and that record in turn by the memorandum upon it referred back to the certificate.' The inquirers had only to read and learn all that was necessary for their protection. The defendants failed to do this ; and between these, parties, both innocent, which shall suffer ? The daughters, who used every measure permitted by law, with more than ordinary diligence, to apprise these purchasers of the trust in their favor; or the defendants, who neglected all the usual precautions, and risked their investment upon such outside information as could be obtained without expense or trouble?”

We think, therefore, that the referee did well to follow the decision of McPherson v. Rollins, and that such authority, under the facts disclosed, leads to an affirmance of the judgment entered upon his report.

In respect to the appeal by the defendant, Orange L. Tozier, from the order granting an additional allowance of costs under § 3253 of the Code of Civil Procedure, on the ground that the case was difficult and extraordinary, it appears from the referee's report that the value of the subject-matter involved in this action was $1,323,being the amount due on the mortgage, and that, consequently, the amount of one hundred dollars was slightly excessive of the limitation of five per cent imposed by the statute. It was the duty, we think, of the appellant’s counsel to raise this question at the special term, which he failed to do. It appears by the order entered that the only objection made to the application for an additional allowance of costs was that the plaintiffs were not entitled to any additional allowance. A rigid application of the rule would lead us to an affirmance of this order, upon the ground that the act of the appellants at the special term probably led the court into the error of allowing too much under this section of the Code. But our modification of the order ought not, under the circumstances, to affect the question of costs of this-appeal. This order is modified by allowing, instead of one hundred dollars, the sum of sixty-six dollars and fifteen cents, and as. so modified, affirmed.

Judgment and order appealed from affirmed, with costs, except, the order for an additional allowance of costs is modified so as to-reduce such allowance from one hundred dollars to sixty-six dollars and fifteen cents.

Dwight, P. J., and Lewis, J. concur.


text:
    Abbie H. Hoffman, App’lt, v. John D. Hoffman, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Estoppel—Working land on shares—Asserting title.
    An agreement to work land on shares contained the following: “The-first party (the defendant), is to occupy the upper house, and is to have the-use of the garden, and also his firewood for one year of such timber as is-down, dead, or decaying.” In summary proceedings to remove the tenant,, the answer alleged that defendant owned the house and garden above mentioned, claiming an oral transfer of the same to him by his father.. Held, that defendant was not estopped from asserting his title by his entering into said agreement, as the conventional relation of landlord and, tenant did not exist.
    2: Same.—Evidence—Code Civ. Pro. § 829.
    In such case defendant’s wife was allowed to testify as to a conversation:.heard between the defendant and his father, in reference to the property in question, in which she took no part, and also as to the original transaction between her husband and his father. Held, incompetent under § 829 of the Code, and its admission sufficient error to cause the reversal of a judgment for defendant. ■
    Appeal by the plaintiff from an order made by the. special county judge of Cayuga county, entered May 9, 1891, dismissing the petitioner’s petition in summary proceedings to remove am alleged tenant after a trial before him with a jury, and a verdict, rendered by the jury in favor of the defendant.

      James Wright, for app’lt; A. J. Parlcer, for resp’t.
   Macomber, J.

This proceeding was instituted by the plaintiff' under § 28 of 2 R. S., 513, as amended by chap. 471 of the Laws-of 1874. This amendment was made so that the statute would apply to croppers or persons working land on shares.

The agreement upon which the plaintiff relies was made the 11th day of March, 1890, between her and the defendant. By its-terms the defendant agreed properly to till and plow the lands of the plaintiff, which were described as being situated in the town of Conquest, on lot 17, except a certain portion of that lot which had been sown to wheat and certain meadow lands. The agreement set forth particularly the proportion in which the crops raised should be divided between the parties. There was in this writing the following clause: “The first party (the defendant) is to occupy the upper house, and is to have the use of the garden and also his fire wood" for one year of such timber as is down, dead or decaying,” etc.

The answer was, in substance, a denial of the allegation of the petition that the plaintiff owned all of the lands, and it alleged that the house where the defendant lived, together with about two acres of land used as a garden, belonged to him. Ho question seems to be involved on this appeal touching any part of lot 17, except this house and garden.

The right of the defendant to retain possession of this property is based upon an alleged oral transfer of the land to him by his father twelve or thirteen years ago, long prior to the execution to the plaintiff of the deed under which she claims. Evidence, much of it of a very inconclusive character, was given upon the trial, designed to show that the defendant’s father offered to, and did propose to him that he should build a house upon the land in question, and occupy and have it as his own ; and that thereupon the defendant went into possession, and, largely through his own personal efforts and those of his wife, constructed the house, there having been paid for carpenter work by the father a sum not much exceeding one hundred dollars. Other testimony was offered to' the effect that the defendant’s father, after this time, stated to sundry persons that the property belonged to the defendant.

It is contended by the appellant, however, that the defendant is conclusively estopped by the agreement which he entered into with her thereafter to dispute the plaintiff’s title to the whole of this land. It is true that the clause of the agreement above quoted has a tendency to lead one to the conclusion that the defendant did not, at the time of the execution of the" agreement, rely upon the title to the house and garden which he now sets up. Yet we are unable to say that the entering into that agreement worked such an estoppel against him as to preclude him from asserting his true title notwithstanding the existence of that agreement. Where the relation of landlord and tenant exists, the possession of the tenant is deemed to be the possession of the landlord. Code of Civ. Pro., § 373. But it is only in cases where the conventional relation of landlord and tenant exists that the tenant is deemed to be estopped to allege against the landlord his own right of possession under a title adverse to the former. The principle finds its origin in the fact that the lessee conclusively acknowledges title in his landlord when he accepts a lease of the property with an agreement to pay rent therefor; but it does not exist where such conventional relation of landlord and tenant does not exist, as in the case now before us. Sands v. Hughes, 53 N. Y., 287.

While, therefore, the clause above mentioned contained in this contract, the whole of which was showji to have been actually written by the defendant himself, is a strong circumstance against the defendant’s present contention, yet it does not appear to be a conclusive legal obstacle to the defense which has been set up in the answer.

An error, however, was committed upon the trial which we-think must lead to a reversal of the order appealed from. The defendant’s wife, Haney M. Hoffman, was called as a witness, and under suitable objection and exception was permitted to testify that she heard a conversation between the defendant and Matthias Hoffman, the defendant’s father, in reference to this property, in which she saj^s she took no part. She then proceeded to give testimony to the original transaction between her husband and his father, which must have had some influence upon the determination of the jury. This court has already decided in the case of Erwin v. Erwin, 54 Hun, 166; S. C., 26 St. Rep., 759, that such evidence was incompetent under § 829 of the Code of Civ. Pro., and that its admission was sufficient error to lead to the reversal of the judgment.

Adherence to that authority leads us to the conclusion that this evidence adduced before the learned special county judge was incompetent, and that for such error there should be a reversal of the order and a hew trial.

Order of the special county judge of Cayuga county reversed, and a rehearing had before him, with costs of this appeal to abide the event.

Dwight, P. J., and Lewis, J., concur.


text:
    Henry Weill, Resp’t, v. Charles J. Close, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Bills and notes—Consideration executory—Substitution.
    Where the consideration in a writterf agreement is executory, the parties may substitute for such consideration any new obligation, and if the same is carried into effect, it has the same binding force as though the original consideration was paid or discharged.
    Appeal by the defendant, Charles J. Close, from a judgment entered in Brie county, October 9, 1891, on the verdict of a jury directed by the court at the circuit, in favor of the plaintiff against the defendant, for the sum of $1,015.30.

      Simon Eleischmann, for app’lt; Moses Shire, for resp’t.
   Macomber, J.

This action was upon a promissory note executed by the appellant Close, as maker, to one Joseph Bork, and by the latter transferred to the plaintiff.

No question is made but that the plaintiff has no other rights in the premises as holder of the note than were possessed by Joseph Bork, the payee. The note was given in renewal of a previous note of like amount between the same parties. The consideration of the original note, as well as of the renewal, was the first instalment or payment upon a contract for the sale of land entered into by Bork with the defendant Close. The land which was particularly contracted for by the defendant Close, had been in fact conveyed by the plaintiff, to whom the contract had been assigned, to another person than the defendant Close and upon this ground it is claimed that there was a failure of consideration for the note, and that consequently this action cannot be maintained. No intervening rights of third persons appearing, this contention would be quite conclusive if it expressed the whole of the case. But after the execution of the contract, and after the maturity of the note, an arrangement was entered into between the defendant Close, one Sniggs and one Kendall, by which certain portions of the lands contracted for with Borlr, and which had been turned over to the plaintiff, and which were, by the original contract to be conveyed to Close, were in fact directed to be conveyed to Sniggs. It is true that this arrangement was oral, but" it was followed by an actual conveyance made by the plaintiff to Sniggs, under circumstances which indicated a direction by the defendant Close.

It is argued by the counsel for the appellant that as neither Bork nor Weill was ever a party to this oral contract, the same was void, and that the conveyance by the plaintiff of the land to Sniggs was not in pursuance of any valid contract. In this proposition we cannot concur with counsel. The evidence is entirely satisfactory to the effect that the plaintiff made the conveyance to Sniggs of these lands, which were originally contracted to be conveyed to the defendant, in pursuance of the oral arrangement made between Close, Sniggs and Kendall.

It appears, therefore, that the original consideration of the note was executory in its nature, and that any other consideration might be substituted therefor by arrangement of the parties. It is a case of a substituted consideration. Where the consideration in a written agreement is executory, the parties may substitute for such consideration any hew obligation; and if the same is carried into effect, as was done in this case, it has the same binding force as though the original consideration was paid or discharged.

If this view be correct, it follows that the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Jane Lynch, Adm’rx, App’lt, v. The New York, Lake Erie & Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892)

    Negligence—Railroads—Evidence.
    In an action for damages against a railroad company it appeared that plaintiff's intestate was killed while engaged in his duties as a brakeman upon defendant’s cars; that he had been employed at such work over two months; that his death was caused by collision with the beams of a bridge while standing on the deck of a box car; that ordinary cat’s, with a man. of ordinary height standing thereon, could pass under the bridge with safety; that the car upon which intestate was riding was eighteen inches higher than the ordinary cars, but that intestate knew of this fact; that the statute in regard to warning signals had been complied with by the defendant; and there was nothing to obstruct intestate’s view of the bridge. Held, that intestate’s death was caused by his negligence, and that the complaint was properly dismissed.
    Appeal by the plaintiff, Jane Lynch, the administratrix of the estate of Prank Lynch, deceased, from a judgment entered in Cattaraugus county, upon a nonsuit granted at the February circuit, 1891.

      F. B. Dowd, for app’lt; J. 0. Johnson, for resp’t.
   Macomber, J.

The plaintiff’s intestate was killed on April 8, 1890, while engaged in the duties of a brakeman upon the cars of the defendant, at a point about one and one-half miles west of West Salamanca in the town af Salamanca, N. Y. The deceased had been in the employment of the defendant as a brakeman up to the time of his death for a period of two months and eight days, and had previously worked for the defendant as a section hand for three years. His duties as brakeman "were upon through freight trains, except for about three weeks next preceding the time of the accident which resulted in his death. He came to his death when on the deck of a box car by collision with the beams of a bridge which had been erected over the railroad tracks five years previously. This bridge is shown to have been seventeen feet and ten inches in the clear from the rail to the under side of its timbers. Ordinary box cars, such as were operated at this time by the defendant, with a man of ordinary height standing thereon would pass under this bridge without danger; but the car upon which the intestate was riding at the time was sixteen or eighteen inches higher than the ordinary box car, and so high in fact that the plaintiff, who is shown to have been a man five feet and five or six inches in height, could not, while standing upon this car, pass safely under the bridge. The statute (Laws of 1884, chap. 439), requiring the company to erect and maintain warning signals at every low bridge or structure which crosses the railroad above its tracks, where such warning signals may be necessary for the protection of employees on the top of cars, from injury, had been observed by the defendant, and dropping-ropes or “tell-tales" had been suspended over the tracks on either side of the bridge at a distance of 200 feet therefrom, designed to warn bralcemen of approaching danger. In this instance, however, the brakeman seems to have passed to the top of this car for the purpose of setting a brake to hold the train, and actually mounted the car either directly under the tell-tales, or very near them, but on the side of them towards the bridge. It was shown in the evidence that this bridge was lower than many other bridges of the defendant on the same section between Meadville and Salamanca. The car upon which the deceased was riding was moving at about fifteen miles an hour. There appears to have been nothing to obstruct the view of the deceased had he attempted t'a see the stationary signals which had been hung by the defendant. Indeed a witness called by the plaintiff testified that he could, at a distance of about 700 feet, clearly see the deceased mount the car and proceed towards the brake, and that there was nothing to obstruct his view, and thus inferentially the view of the brakeman, of the approaching danger.

At the close of the plaintiff’s case in chief, on motion of the defendant’s counsel, a ‘non-suit was granted, obviously, upon the ground that the plaintiff had failed to show negligence attributable to the defendant, or the freedom from negligence on the part of the deceased. Her counsel asked that the question of the construction of the bridge, and the use of the unusually high box car, should be submitted to the jury as an omission of duty on its part to the deceased. He also asked to go to the-jury upon the question whether the deceased was guilty of any negligence under the circumstances. The exception to the direction of the court and its refusal to submit these matters to the jury raises the principal question in the case.

The proposition has so frequently been stated that it may be deemed to be elementary, that when the deceased entered the employment of the defendant he ássumed the usual risks and perils of the service in which he was to be engaged, as well as the risks and perils incident to the operation of such cars as were then actually used by the defendant-and such others as were proper to be used by it. Accepting service with the knowledge of the character and position of the structure from which the employee might be liable to receive injury, he could not call upon the defendant to make alterations to secure greater safety; or in case of injury from risks which were apparent he could not call upon his employer for indemnity. Gibson v. Erie Ry. Co., 63 N. Y., 452.

In that case the plaintiff’s intestate, who was in the employ of the defendant as a conductor of a freight train, while upon his train, was struck and killed by a projecting roof of a depot building. He was shown to have been familiar with the road at that locality, and it did not appear that any change had been made in the building or in the road after he entered upon his employment.

In an action to recover damages for his death, it was held that the peculiar character of the roof, and its near approach to passing cars, was as patent to the deceased as to the defendant’s officers or agents, and that the employee assumed the risk when he entered upon the employment and that the defendant was not liable.

In the case of Fitzgerald v. N. Y. C. & H. R. R. R. Co., 12 N. Y. Supp., 932; 36 St. Rep., 755, it was held that no recovery could be had for injuries to a brakeman by striking against a low bridge under ’ which his train was passing in the night time where it appeared that the brakeman knew the location of the bridge and had passed under it at other times, and had been cautioned against it, even though warning signals had not been erected at such bridge as required by § 2, chapter 439 of the Laws of 1884. But we are not inclined to adopt the doctrine of that case in'its full scope, as it appears’tobe reported; nor is it necessary to rely upon the same for the purposes of maintaining the judgment in this case.

In Williams v. D., L. & W. R. R. Co., 116 N. Y., 628; 27 St. Rep., 760, the plaintiff was in the defendant’s employment as a brakeman upon a freight train. While standing upon the top of a car he was struck by a bridge over the track and was injured. He had run upon this train for three weeks, and during that time had passed daily under the bridge, and frequently on top of the car, where he was required to be in the performance of his duty. His injuries were received in the day-time. The bridge was in plain sight, and, knowing that the train was about to pass under it, he turned his back to it and was going towards the rear of the car when he was struck. It was there held that a refusal to non-suit was error and that the plaintiff, had he exercised ordinary care and observation, must have known that the -bridge was not of sufficient height to permit a person to pass under it standing on the top of a car. That case seems to have been decided irrespective of any consideration of the law relating to signals or “tell-tales.”

But the principal question now before us was passed upon by this court in the case of Rock v. Retsoff Mining Co., 40 St. Rep., 556.

In that case the plaintiff, while employed as a brakeman on the defendant’s railroad, was knocked from the top of a box ear by a trestle under which the car was passing. The space between the trestle and the running board of the cars commonly used was five feet seven and one-half inches, and the plaintiff was five feet eight inches in height, but by stepping off the running board to one side of the car the plaintiff could pass under the trestle standing erect. The car on which the plaintiff was injured was higher than the ordinary by upwards of a foot, leaving a space of but four feet five and one-half inches between the running board and the trestle. The larger car had been in use to some extent, to plaintiff’s knowledge, for three months before the accident, and the plaintiff was familiar with the situation. It was there held that no recovery could be had. In that case, as well as in the one before us, the plaintiff knew of the over-structure. He had known for some time that there was nothing to spare between the running board of the ordinal car and the trestle. He knew or must have been charged with knowledge of the increased height of a large car over those in common use; for such height was plainly to be seen when the car was brought in juxtaposition with other cars, as was the fact in both cases.

The case last cited seems to be controlling, so far as this court is concerned, of the question presented by this appeal, and it follows, therefore, that the j udginent entered upon the nonsuit should be affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Earl, Ch. J.

text:
    Charles J. Quimby, App’lt, v. Edmund H. Carhart et al., Resp’ts.

      (Court of Appeals,

      Filed April 26, 1892.)

    1. Sale—Evidence.
    For many years prior to March 5, 1884, plaintiff purchased goods upon his own credit from defendants and shipped them to a firm in Charleston, S. C., paying for them himself, beipg allowed ten per cent_ discount and being reimbursed by said firm at the full price. In an action for goods shipped in 1884 plaintiff gave evidence tending to show that on the 5th day of March he settled, and notified them that he would no longer be responsible for goods shipped to the Charleston firm. This the defendants contradicted. Held, that the jury could find upon the evidence that the goods were sold to plaintiff, and on his credit.
    2. Same—Charges upon books.
    The fact that the goods were charged to the Charleston firm on defendants’ books was not conclusive against their claim that they were actually sold to plaintiff, under the evidence given by defendants tending to show that this was done at plaintiff’s request.
    3. Same—Res adjudicata—Estoppel.
    ■ Subsequent to the sale defendants made a general assignment for the benefit of their creditors, and the assignee sued the Charleston firm for the balance due on the sale of said goods. Held, that plaintiff could not have the benefit of the adjudication in that action, as he was not a party thereto, and that defendants were not estopped by their statements or actions in that litigation.
    Appeal from judgment of the Hew York superior court, general term, affirming judgment entered in favor of defendant upon verdict of a jury and order denying plaintiff’s motion for new trial.

      William P. Fiero, for app’lt; Ira D. Warren, for resp’ts.

       Affirming 36 St. Rep., 80; see 29 id., 279.

   Earl, Ch. J.

The sole question in this case is whether the plaintiff became legally bound to pay the defendants for goods shipped by them to a mercantile firm in Charleston, South Carolina, in the year 1884. He contends that he stood at most as a guarantor for the payment of the goods; and as his agreement rested wholly in paroi, he claims that it was void and not binding upon him under the statute of frauds. The defendants, on the contrary, claim that the goods were sold to him and shipped at his request to the Charleston firm, and that, therefore, there was an original liability on his part to pay for the goods. The evidence in reference to the matter is very conflicting, and it is quite difficult to determine from it precisely what the truth is. The learned trial judge, in his charge to the jury, said: “I confess to you that the evidence is very conflicting. It is impossible to reconcile it. It is almost impossible to reconcile one witness’ testimony, some parts with others. But such as it is, you must consider it and try to come to some conclusion in the matter.” But the issue between the parties is greatly narrowed by the allegation in the plaintiff’s complaint that he “ was a merchant, and in the habit of purchasing goods in the city of Hew York for the southern market, and for many years had purchased large quantities of goods on time from the firm of Whitford & Co. (the defendants), and consigned the same for sale to parties in Charleston in the state of South Carolina," and substantially that that course of business continued to March 5th, 1884. These allegations were admitted by the answer, and there was oral evidence to confirm them. It must, therefore, be taken as. established by the pleadings and proofs that for many years prior to the 5th day of March, 1884, the plaintiff purchased goods upon his own credit from the defendants and shipped them to the Charleston firm; that he paid the defendants for such goods; that they allowed him a discount of ten per cent, from the price of the goods; that he sold or consigned the goods to the Charleston firm, and obtained' reimbursement from it, with a profit of ten per cent. He claims, and gave evidence tending to show, that on the 5th day of March he went to the defendants and put an end to that arrangement; that he then paid them the balance due from him for goods thus sold and shipped to the first day of February, which, according to the prior arrangement, was one of the semi-annual pay days, and that he substantially notified them that he would no longer be responsible for goods snipped to the Charleston firm. This evidence on the part of the plaintiff the defendants contradicted by evidence on their part. They gave evidence tending to show that they did not on the 5th day of March receive any such notification irom the plaintiff, and that the goods thereafter were shipped just as they had been before, and under the same arrangement. So we think the jury could find upon the evidence that the goods were sold to the plaintiff, and upon his credit.

The fact that the goods were charged to the Charleston firm on defendants’ books is not conclusive against their claim that they were actually sold to the plaintiff. They gave some evidence tending to show that they were thus charged upon the plaintiff’s request, and that at some subsequent time they were entered in the account against him by an understanding between the parties.

Subsequent to the sale of these goods the defendants made a general assignment for the benefit of their creditors, and the assignee brought an action against the Charleston firm alleging a sale to them and seeking to recover from them the amount due after crediting upon the price of the goods the money deposited with the defendants by the plaintiff, which is now claimed in this action. It appears that the assignee, during the pendency of that action, was discharged; that after his discharge the further prosecution of the action was conducted for or on behalf of the defendants, and that on the trial of that action they gave evidence tending to show that the sale of the goods was directly to the Charleston firm. It is quite clear that their claim in that litigation between the assignee and the Charleston firm, was inconsistent with the claim they made upon the trial of this action. But their attitude in that action does not conclude them in this.

It is conceivable and possible that they actually sold the goods to the plaintiff and having delivered them to the Charleston firm that they should seek to recover the purchase price from that firm. But the plaintiff cannot have the benefit of the adjudication in that action as he was not a party thereto. The attitude of the defendants in that action was a circumstance strongly bearing upon the issues in this action. The doctrine of the election of remedies does not apply, and as to the plaintiff the defendants are not estopped by their statements or action' in the Charleston litigation. They may have taken a false position in that action. But there is no rule' of law prohibiting them from taking what they claim to be the true position in this. What they said and did in that action bears upon their good faith and credit in this, and can have no other effect, and while it has a strong tendency to bring discredit upon their contention in this action, still upon all the very conflicting evidence there remained questions of fact for the jury, and they having found in favor of the defendants we are concluded by their verdict.

After the principal charge of the trial judge, the defendants’ counsel requested him to charge the jury, “ that the allegation in the complaint that this was a purchase of goods from Carhart, Whitford & Co., and the admission in the answer that that was a purchase, is conclusive on that question, and the jury cannot consider any other evidence; that that is absolutely conclusive," and the judge so charged. The plaintiff’s counsel now complains of this charge as erroneous. The language of the judge was not strictly accurate, and could be so construed as to embody error. 'There was no allegation in the complaint that the plaintiff purchased of the defendants the goods now in controversy, and the judge could not have meant that there was. If he had meant that, and such had been his construction of the complaint, he .should have non-suited the plaintiff, or directed a verdict for the defendants, and nothing would have been left for litigation. He had previously stated accurately what the allegations of the •complaint were, and both parties and the jury must have understood the charge to have reference to the purchase of goods before March 5,1884, as alleged in the complaint If the counsel for the plaintiff supposed that there was danger that the jury would be misled' by the language used, he should have asked to have it made more explicit. The judge did not err in his view o£ the law that an allegation made in the complaint and admitted in the answer absolutely concluded the parties in the •action.

The claim of the plaintiff that he was in any event entitled to recover ten per cent upon the price of the goods under his con•tract with the defendants .is unfounded. If he had paid for the goods and had thus performed his contract, he would have been entitled to the allowance. But he did not claim this ten per •cent upon the trial. There was no ruling upon it, and it was in no way mentioned there. He can, therefore, claim no relief in’ reference thereto upon this appeal.

This case was so tried and the evidence was so confused and conflicting that we do not feel certain as to the real merits of this controversy. It was incumbent upon the plaintiff here to point out some ’error prejudicial to him. In this we think he has failed, and the judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Eugene F. Lethbridge, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed April 26, 1892.)

    1. Municipal corporations—Appointment to office where salary DEPENDS UPON SPECIAL APPROPRIATION.
    Plaintiff was notified on the 18th of May, 1886, by the commissioner of public works that he was promoted from the position of laborer, and appointed clerk in the department of public works, at $1,000 per year, “ to be paid from the appropriation for repairing and renewal of pipes, slop cocks, etc., salaries.” There had been an appropriation for this purpose of $50,000 for the year 1887, but it was exhausted December 31, 1887, and no appropriation made for Í888 and 1889. He was notified by the commissioner when the appropriation was exhausted that on that account he was suspended. Notwithstanding this, plaintiff obtained judgment against the city for his salary for over two years. Held error.
    8. Same.
    When the commissioner made the appointment he had in view the provisions of law wkicli limited his power to create an obligation against the: city beyond or in excess of the sum specifically appropriated for that purpose, and the plaintiff must be deemed to have accepted the appointment with the same-understanding and the same limitations.
    3. Same—Removal—Right to a he ailing—Consolidation act, §48.
    The provision of the statute giving a clerk or officer the right to a hearing and an opportunity to make an explanation, is wholly inapplicable to-a case where the removal was made for the reason that the appropriation applicable to the payment of the salary has been expended.
    Appeal from judgment of the New York superior court, general term, amending judgment rendered in favor of plaintiff upon, a trial by the court without a jury.

      Sidney J. Cowep,, for app’lt; É. 0. Chetwood, for resp’t.

         Reversing 39 St. Rep., 385.

   O’Brien, J.

The plaintiff has recovered a judgment for salary, at the rate of $1,000, per annum, for the period of two years,, six months and nineteen days, from the 20th day of January, 1887. Daring that period he rendered no service, hut claims that as he had not been removed from the position he was entitled to-the salary. On the 15th of May, 1886, the commissioner of public works notified the plaintiff, in writing, that he was promoted from the position of laborer and appointed clerk in the department of public works, at $1,000 per year, “ to be paid from the-appropriation for repairing and renewal of pipes, stop cocks, etc.,, salaries.” There is no dispute as to the fact that the board of estimate and apportionment in the year 1886, appropriated for the-, purpose above mentioned $50,000 for the year 1887. This appropriation was exhausted on the 31st of December, 1887, except the-sum of $116.89, and no appropriation whatever for this purpose was made for the years 1888 and 1889, so that during the period for which the plaintiff has recovered his salary, there was no fund available for its payment.

The plaintiff was not appointed to an office with a fixed salary or compensation, but a clerkship in the department of public works. The power of appointment and of fixing and regulating the salary to be paid was conferred upon the commissioner and the plaintiff’s employment was not fpr any fixed period of time. The nature and tenure of the appointment must be governed by the law on that subject in force at the time it was made and the letter of appointment must he read in connection with the following provisions of the consolidation act:

“ § 46. * * * No expense shall be incurred by any of the departments, boards or officers thereof, unless an appropriation shall have been previously made covering such expense, nor any expense in excess of the sum appropriated in accordance with law.”
“ § 47. It shall be the duty of the heads of all departments of' said city, and of all boards and officers charged with the duty of' expending or incurring obligations payable out of the moneys-raised by tax in .said city, so to regulate such expenditures for any purpose or object, that the same shall not in any one year exceed the amount appropriated by the board of estimate and apportionment for such purpose or object; and no charge, claim or liability shall exist or arise against said city for any sum in excess of the amount appropriated for the several purposes."’

The appointment of the plaintiff was accompanied by a statement that his compensation was payable from a specific appropriation which was then made. This impliedly, but necessarily, limited -the term of plaintiff’s employment to a period when that appropriation was available to pay the salary.. The plaintiff must be deemed to have accepted an appointment with full notice that his salary was payable only from a special and designated appropriation and that when this appropriation was exhausted his employment should terminate, in the absence of a. new appropriation lor the same purpose. When the commissioner made the appointment he evidently had in view the provisions of law which limited his power to create an obligation against the city beyond or in excess of the sum specifically appropriated for that purpose, and the plaintiff must be deemed to have accepted the appointment with the same understanding and the same limitations.

Whenever, therefore, the appropriation from which the plaintiff’s salary was payable was exhausted and the authorities failed to make a new one for the same purpose, the commissioner had the right, and it was his duty to terminate the employment, to the end that a liability or obligation should not accrue or be created against the city in excess of the sum appropriated for the purpose. This is further emphasized by § 48 of the consolidation act: The number and duties of all officers and clerks, employees and subordinates in every department, except as otherwise herein specifically provided, with their respective salaries, whether now fixed by special law or otherwise, shall be such as the heads of the respective departments shall designate and approve ; but subject also to the revision of the board of estimate and apportionment; provided, however, that the aggregate expense thereof shall not exceed the total amount duly appropriated to the respective departments' for such purposes.” The board of •estimate and apportionment made no farther appropriation for the payment of the plaintiff’s salary, and when the money available, at the time of his employment, became exhausted the commissioner addressed a letter to him stating that, “ In consequence of an insufficient appropriation, and a necessary reduction of force, you are hereby suspended from the position of clerk from this date.” Whether this notice was called a suspension or a dismissal is of very little consequence. It operated to terminate the plaintiff’s employment and right to salary from that date. The contingency provided for in the terms of the plaintiff’s appointment and in the law, namely, the exhaustion of the appropriation, had happened and the power and duty of the commissioner to terminate the employment, at least until another appropriation was made, was unquestionable,.and the exercise of this power furnishes to the plaintiff no legal or just ground of complaint. It may -be that undet the operation of the civil service rules the plaintiff might be entitled to be restored to the position when a new appropriation was made, and when it became lawful to fill the place again, but his right to draw any more salary from the-city ceased when the appropriation was expended and the plaintiff had notice of it. Donovan v. Mayor, etc., 33 N. Y., 291; McDonald v. Mayor, etc., 68 id., 23; Dunphy v. Mayor, etc., 8 Hun, 482.

But it is urged that the plaintiff could not be dismissed or his. right to remain'in the position and draw the salary terminated without giving -him an opportunity to be heard, under the first paragraph of § 48 of the consolidation act. The plaintiff was certainly informed of the cause of his removal, and the only thing wanting in this case to furnish a full compliance with that section is the circumstance that the plaintiff was not “allowed an opportunity of making an explanation.” The provision of the statute giving a clerk or officer the right to a hearing and an opportunity to make an explanation is wholly inapplicable to a case where the-removal was made for the reason that the appropriation applicable-to the payment of the salary has been expended. The right to-make an explanation in such cases necessarily implies that the cause of removal is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office or place. The provision has no application to a case where the in-cumbent was dismissed for want of funds or in order to reduce-expenses, and when at the time of the dismissal he has notice of that fact. People, etc., v. Fire Commissioners, 72 N. Y., 445-449; People, etc., v. Fire Com'rs, 73 id., 437; Phillips v. Mayor, etc., 88 id., 245.

The supreme court, upon certiorari to review the action of the department of parks in discharging clerks without complying with the requirements of this statute, gave to it a construction which, we think, is a just and reasonable one. The learned judge who gave the opinion states with great clearness the reasons for the enactment of the statute, its general policy and the cases to-which it applies. “ The limitation contained in this statute is in= the interest of the public, which is best promoted by keeping in the service honest clerks who have attained experience in their employment, and besides, it is a matter of justice to the employee-himself, whose summary displacement and the appointment of another in his place may give rise to an implication of infidelity or unskillfulness on his part, which an examination and explanation might have wholly dispelled.

“ But no such reasons exist when a clerk is discharged from the public service because the moneys appropriated by the body charged with that subject are insufficient to keep up the clericals force to the standard which had obtained when larger appropriations were made, or when for such cause his services are no-longer needed.

“ The notice is indispensable, and an opportunity should be afforded to the clerk to make an explanation when such explanation might prevent the proposed removal.

“ It is quite evident that the section applies only to cases where the removal is proposed to be made without just cause personal to the party, or when it is sought arbitrarily and without adequate reason, to substitute another person in the place of one proposed to be removed.” People, etc., v. Board of Parks, 60 How. Pr., 130.

The cases of Gregory v. Mayor, etc., 113 N. Y., 416; 22 St. Rep., 703, and Emmitt v. Mayor, etc., 128 N. Y., 122; 38 St. Rep., 907, do not apply. In both cases it was held that an incumbent, of a public office, suspended without cause but not dismissed, was entitled to his salary during the period of suspension. In these cases the plaintiff had not been dismissed by reason of the expiration of his term of employment, or for want of funds, or upon a hearing, and, therefore, they form no guide in the disposition of this.

The judgment of the general and special terms should be reversed and a new trial granted, costs to abide the event.

All concur.


author: Peckham, J.

text:
    Catherine Wynn, Resp’t, v. The Central Park, North & East River R. R. Co., App’lt.

      (Court of Appeals,

      Filed April 26, 1892.)

    Negligence—Street car driver.
    In an action for injuries to plaintiff sustained in a collision between street cars, it was shown that the brake chain on defendant’s car broke-while on a down grade, and the car ran down by its own weight and collided with another car standing on the same line. The driver remained at his post until within four feet of the car in front of him, and then jumped off. Held, that the judge erred in leaving it to the jury to determine whether the car was "managed with the care and skill which the law required, as there was no such question in the case; the proof being overwhelming that the driver did everything that anyone could have done to-prevent the accident from the moment the chain broke.
    Appeal from judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff, entered upon a. verdict, and order denying motion .for new trial on the judge’s-minutes.

      Henry Thompson, for app’lt; Charles H. Woodbury, for resp’t.

       Reversing 38 St. Rep., 181.

   Peckham, J.

In his charge to the jury the learned judge left it. to that body to determine whether the defendant employed skillful servants on the car, and whether the car was managed by the driver with the care and skill which the law required. The defendant, excepted to the submission of the question to the jury, whether the driver managed the car with that care and skill required by law, and claimed there was no such question in the case.

We have looked through the evidence with great care, and have come to the conclusion that the exception must prevail.

The ease is without a particle of evidence tending even remotely to the point that there was the least want of care or skill in the-management of the car by the driver at any time. On the contrary the proof is overwhelming and without contradiction that-the driver did everything that any one could have done to prevent the accident from, the moment that the chain broke. Ho remained at his post on the front platform up to the time when he was within about four feet of the car in front of him and only .jumped off at the last moment, and when to have remained would have resulted in his own serious injury, without furnishing the least obstruction to the collision which was imminent and which happened within a second or two after he had jumped off. He had been driving cars for this defendant for a year or two prior to this time, and had been in its employ sometime prior to that period. The case is without evidence tending to show that he was not an entirely fit man for the position, and there is the same absence of any evidence tending to show that he did not use the necessary and proper degree of care and skill at all times on that trip and up to the time of the collision.

When, just prior to the breaking of the chain, he used the brake two or three times to check the speed of the car on account of the driver of the Weiss beer wagon getting on the track in front of him, he says he was entirely unconscious of using any more strength upon the brake than was pecessary for the purpose of accomplishing his object. He says it was not necessary, •and that he does not remember that he did. But even if he did use more force than was necessary, there was no want of skill in that, and if the chain was as strong as it was intended to be and ithe purpose of its use called for, there was no harm or injury to be apprehended from such use. It would be improper to submit the question of lack of skill or of negligence in the driver based upon evidence that he had used more force in handling the brake than was absolutely necessary to check the speed of the car.

At any rate there was no evidence that he did do so, and a jury should not be allowed to speculate or indulge in a mere guess upon such a matter. There must be at least some evi■dence upon which the question of a want of skill can be based, and here there was none.

The plaintiff argues that the driver should have shouted so that the employees upon the car ahead would have heard him and .started their car, and thus an accident would have been avoided. The occurrence itself was accompanied with great noise so as to naturally attract attention. The counsel himself alludes to the proof that there was so much noise from the runaway car as to cause a pedestrian some ways off to hear it and turn around to discover the reason. The case is bare of any evidence that shouting would have been of the least service in preventing the accident. It is also alleged that he should have turned his horses out at right angles with the rails, and thus have dragged.the car across and thrown it off the track. Had he done so and succeeded in overturning the car, considering the speed the car then had, it is quite likely that a worse accident would have occurred and that a charge of unskillfulness or negligence on the part of the driver would have had much to sustain it under such facts. These are, however, but the possible actions which the counsel for plaintiff thinks now might have been performed by the driver. 'There is no evidence to show that they would even probably have been effectual. He was confronted with a sudden emergency, and we cannot now say that his notion was not the best, that could have been performed under the circumstances. Even a failure to exercise the best judgment which the case rendered possible cannot fairly be claimed as evidence of a lack of care or skill. We do not, however, see any evidence that in fact there-was such failure.

The defendant contends there was no evidence of negligence on the part of the defendant to be submitted to the jury.

There was a question made as to the sufficiency of the-inspection.

The happening of the accident of the nature proved in this case- and with regard to a passenger on ¿lie defendant’s car, was enough evidence of negligence to call upon defendant for some explanation. The witness who was called to prove the inspection left, the question in such condition as to its sufficiency, that it was-proper to submit it to the jury. The defendant proved by one of its witnesses, who had for many years been a chain manufacturer, that in the case of a wrought iron link it was not possible for the external appearance of the iron to be without flaw, and yet a flaw exist in the center; at least he never saw it in wrought iron and he had been in the business for thirty-eight years. As one of the-links of this wrought iron chain did in fact break upon this occasion, and was lost, and as the chain was comparatively* a new one, it might be inferred that it broke on account of some defect or flaw which would have been revealed upon a more minute inspection than seems to have been given. The inspector said he: did not on the morning in question examine the chain minutély, each particular link, but he looked the whole chain over and tested its strength by winding it up several times. Upon this evidence we think it was a fair question to be submitted to the: jury, whether in view of all the circumstances in which a car may be placed when running on its ordinary trips in the city, a more extended examination was called for or was indeed practicable in the-exercise of proper care and diligence, than was in fact given to the chain in this instance. We do not say the defendant was guilty of negligence in this regard, or that its inspection was insufficient, but we think the question whether it was or not should be submitted to the triers of fact.

Alleged error in regard to the submission of the question of the sufficiency of the brake appliance as regards plan and method is claimed by defendant. - The evidence seems to show there was no question for the jury on that subject. The brake appliance seems to have been of the same kind as that in general use in all horse railroad companies, and to have been entirely sufficient for its intended use as to plan and method. There is some doubt whether the court, in answer to defendant’s request to charge, did not cure any error that may have existed in the main charge to the jury.

Other errors are alleged as to the admission and rejection of evidence, which it is unnecessary to notice, as they may not arise upon a new trial

Forthe erroneous submission of the question as to the skill of -.the driver to the jury, the judgment must be reversed, and a new 'trial granted, costs to abide the event

All concur, except Gray, J., not voting.