author: Per Owriam:

text:
    ALEXANDER C. MORRISON, Plaintiff, v. CHARLES S. LESTER, Defendant.

      Section 331 of the Code — liability of assignee of ccmse of action after action commenced tlwreonfor costs — how enforced.

    Under section 331 of the Code, which provides that payment of costs may he enforced hy attachment against an assignee of a cause of action after commencement of suit thereon, a demand was made against one Clarke for the costs of an action assigned to him during its pendency, and an order was thereupon made directing him to pay the same, and providing that upon the return of an execution against his personal property unsatified, a precept should issue to the sheriff committing Clarke to jail until he should pay the same. Held, that this order was unauthorized.

      Semble, that the attachment mentioned in section 331 of the Code is an attachment against the person.
    Appeal by Thomas J. Clarke from a portion of an order made at Special Term, which portion is in the following words:

      “And it is further ordered, that upon the return of such process unsatisfied, a precept issue to the sheriff requiring him to attach the body of the said Thomas J. Clark, and commit him to the common jail of the county to which such process is issued, and to keep and to detain him in custody until he shall pay the said costs in this action, together with the sum of ten dollars costs of this motion, and the fees of the said sheriff upon such process.” .
    This action was brought to collect a claim of $5,000, and about twenty years’ interest. After the action was commenced, and at issue, Thomas J. Clarke took an assignment of the action and cause of action, for one dollar, and continued the prosecution of it, although notified that he would be held for the costs.
    The complaint was dismissed and judgment' entered in favor of defendant for $319.96 costs, June 26, 1876.
    The nominal plaintiff being wholly insolvent, a motion was made to compel the assignee to pay the judgment under section 321 of the'Oode.
    An order was made at Special Term by which it was “ ordered that the said Thomas J. Clarke pay to the defendant, or his attorney, the costs in this action, and that process in the nature of an execution against personal property may be issued to the sheriff of any county in this State founded upon this order, for the collection of said costs out of the personal property of the said Thomas J. Clarke.
    And it is further ordered, that upon the return of such process unsatisfied, a precept issue to the sheriff requiring him to attach the body of the said Thomas J. Clarke, and commit him to the common jail of the county to which such process is issued, and to keep and to detain him in custody until he shall pay the said costs in this action, together with the sum of ten dollars costs of this motion, and the fees of the said sheriff upon such process.”
    j51 F. Bullard, for the appellant T. J. Clarke.

      Cfharles O. Lester, for the respondent.
   Per Owriam:

The Code makes two persons liable for costs who are not parties to the action ; the guardian of an infant plaintiff (§ 316) and the assignee of a pending action. (§ 321.) In both instances it declares that payment may be enforced by attachment. The appellant claims that by “ attachment ” in section 321, is meant an attachment against property. We think not. The word, when used without qualification, as it seems to us, usually designates attachment of the person. And again, when the word designates the seizure of property, generally, if not always, it means the taking and holding of property so that it may be liable to some subsequent action of the court. In other words, it designates mesne, not final process. If this section was intended to give a right to enforce the costs against property, the language would probably have been that the costs might be collected by execution.

This language, too, is the same that was used in 2 Revised Statutes (m. p., 619 ; [Edm. ed.], p. 643, § 44), where it was provided that where an action was brought by one person in the name of another, the payment of the costs might be enforced by attachment. And that language was well understood to mean an attachment against the person. But this matter has been considered and passed upon in respect to section 316 of the Code, which is identical in its language with section 321, under which the present question arises. In Grantman v. Thrall (31 How., 464) the Special Term had refused an attachment against the guardian of an infant plaintiff. The General Term reversed that decision and directed that an attachment issue. They held that even if this provision seemed to be in conflict with the act of 1841 (chap. 390, § 2), yet that, as the Code was enacted several years after that statute, this particular case must be deemed to be taken out of the effect of that act.

But another difficulty arises. In the present case, on a demand of the costs from the alleged assignee, a motion was made for an order requiring him to pay and for an attachment in case of his failure to do so. On the hearing of that motion, the assignee was ordered to pay the costs and it was at the same time ordered that on the return of an execution against his personal property therefor, a precept issue to the sherriff committing the assignee to jail till he pay the costs. This would be an absolute commitment and not merely process like a ca sa. And this course does not seem warranted by the Revised Statutes. (2 R. S. [m. p.], 535, §§ 4, 5, and [m. p.], 531, § 19.) The process ordered to issue would be such as might be granted in case of fine for a contempt. (See §§ 23,21, 25, p. 557.) Yet there is nothing in the papers to show the assignee guilty of a contempt of court. It would be clearly unjust to imprison him in close custody for not paying a bill of costs which he was perhaps unable to pay. The statute seems to intend that when an attachment is issued, the party on the return thereto, shall have an opportunity to excuse himself for his alleged misconduct. (§ 19, p. 556.) It might be a good excuse for him to show on the return of the attachment that he had no means of payment. But this need not be passed on here. It is not necessary for us here to decide whether process might not be issued in the nature of a ca sa, as was done in the case cited. It is enough to say that we think the order granted was not proper and should be reversed.

Order reversed with ten dollars costs and printing disbursements.

Present — Learned, P. J., and Boardman, J. ; Bookes, J., taking no part.

Order reversed, with ten dollars costs, printing and disbursements, without prejudice to proper proceedings.


source: Caselaw Access Project

author: LeabNed, P. J.:

license: Public Domain

text:
    NORMAN COX, as Executor, etc., of HENRY PECK, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action for personal injuries — stipulation that action shall notábate — -Measure of damages — excessive damages.

    This action, was brought by one Peck to recover damages for injuries sustained by reason of his unlawful expulsion from one of the defendant’s ears. While the action was pending, a stipulation was entered into between the parties thereto that, in case of the death of Peck, the action should not abate. Peck died during the pendency of the action, and after a judgment in his favor had been reversed by the General Term. Held,, that, upon a new trial, his executors were entitled to recover the sum which would have compensated him for his injuries if he were alive, although his estate had not suffered at all by reason of the injury.
    The intestate was wrongfully removed from a parlor car, for a refusal to pay his fare, by one of the defendant’s conductors, who was acting in good faith. The only unnecessary violence alleged to have been used consisted in seizing him, while standing upon the ground, and pulling him from the car while he was holding on to the rail by one hand, thereby wrenching him and injuring his finger, so that subsequently a felon appeared, from which he suffered two weeks. The judge charged that compensatory damages only could be allowed. The jury brought in a verdict for $3,000. Held, that the verdict was excessive, and should be set aside.
    MotioN for a new trial on exceptions ordered to be beard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an' order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages for the ejection of plaintiff’s testator from- defendant’s cars. It has been three times tried. On the first trial, the jury rendered a verdict in plaintiff’s favor for $8,000. The complaint claimed but $5,000, and judgment was entered for that amount, the plaintiff remitting $3,000 of the verdict. On appeal from this judgment, the General Term set aside the verdict as excessive, imposing costs as a condition. After this, and before a new trial, Henry Peck died, and his executor was substituted, by order entered upon a stipulation made by the defendants, on putting the cause over a term of court before the first trial; the stipulation also providing that the action should not abate with the death of the plaintiff, but any verdict and judgment rendered therein should be regarded as rendered in the lifetime of the plaintiff. After substitution of plaintiff’s executor, the action was again tried, and a verdict of $4,000 rendered in plaintiff’s favor. The defendants appealed, and the General Term reversed the judgment, denying a new trial upon the ground that the action had abated with the death of Henry Peck. (4 Hun, 116; 6 T. & O., 405.)
    The defendants entered judgment upon the order, and the plaintiff appealed. The Court of Appeals reversed the judgment of the General Term, upon the ground that the stipulation was valid and binding upon defendants (63 N. Y., 414), and. remitted the cause to the General Term for the consideration of the other questions in the case. A new trial was granted by the General Term upon the grounds stated in the previous opinion, the court imposing costs of trial as a condition. The case has been again tried, and a verdict rendered for $3,000. Tbe defendants moved upon tbe minutes for a new trial, wbicb was denied. They then procured an order staying proceedings and sending tbe exceptions, as well as tbe review of tbe order denying a new trial, to tbe General Term in tbe first instance.
    Tbe plaintiff, with bis wife and daughter, entered a palace car of tbe defendant at TTtica, with tickets entitling them to a passage in tbe ordinary cars to Albany. Whether they entered this car, knowing that it was a palace car and that extra fare would be demanded, or whether they did so by direction of tbe conductor, and in tbe expectation of riding therein without further charge, was in dispute, and was settled by tbe verdict in favor of tbe plaintiff. Having refused to pay tbe extra fare, they were put off tbe train at Palatine Bridge. Tbe principal violence consisted in tbe fact that while tbe intestate was standing on tbe ground, bolding on with one band to tbe car rail, tbe conductor put bis arm around bis waist and jerked him away, wrenching him all over and injuring bis band.

      J3. A. Stcmton, for tbe respondent.

      Isaac S. Newton, for tbe appellant.
   LeabNed, P. J.:

It has always been tbe law that a right of action for an injury to tbe person dies with tbe party aggrieved. Not merely does tbe action abate (as it formerly did always on tbe death of tbe plaintiff), but tbe right of action is absolutely gone. Tbe reason is that there is no longer any person who has been injured and who ought to be compensated. Tbe executors represent tbe estate; but neither they nor tbe estate have suffered from tbe personal injury. And so it was said by tbe Court of Appeals, that executors cannot maintain an action on an express or implied promise where tbe damage consists entirely of personal suffering of tbe deceased, whether mental or corporeal. (Zabriskie v. Smith, 13 N. Y., 333.)

Tbe statutory action given to tbe representatives of a deceased party by wrongful injury is no exception to this rule. Tbe ground of that action is not tbe injury to tbe deceased, but tbe injury to bis surviving relatives, to whose support he bad contributed. The right of action wbicb the deceased might have had for the injury which caused his death dies with him.

The English courts have made one wise exception. When the injury has affected the estate of the deceased by preventing him from earning money as usual, or by occasioning expense in paying for medical aid, to this extent the right of action survives to the executors or administrators, because they represent the estate thus injured. (Bradshaw v. Lancashire amd Y. R. W. Co., L. R., 10 Com. Pl., 189.)

In the present case, however, there was no injury to the .estate of Mr. Peck, the deceased. The wrong occasioned only bodily and mental pain. But it was held by the Court of Appeals (63 N. Y., 414) that the stipulation of, the defendant’s counsel had given the estate of the deceased as assets in the hands of the executors a right of action which it would not otherwise have had. And on the last trial his executors claimed, and were allowed, to recover damages, to go to his estate, on account of the insult which Mr. Peck had received and the suffering, bodily and mental, which he had endured. And the question is now presented by the defendant, what are the proper damages which will compensate Mr. Peck’s executors or his estate for pain in his feelings and pain in his finger.

At the first statement, it would seem that such damages could be only nominal. Eor it might be said that it is no compensation for an assault and battery on Mr. Peck to pay money to his executors, any more than it would be to pay it to any other persons. But the Court of Appeals would not have sent the case back for the recovery of nominal damages. They must, therefore, have held that Mr. Peck’s estate was entitled to recover, for the benefit of his creditors and legatees, pecuniary damages, as compensation for his sufferings in mind and body, by reason of the assault and battery.

It might have been suggested that analogy to the English case would hold that the expense of the litigation, already incurred before Mr. Peck’s death, was the rule of damages in behalf of his estate. But no such view was taken by the Court of Appeals. We conclude, therefore, from that decision, that Mr. Peck’s death transferred to his executors his right of action to recover the sum which would have compensated him for the injury, although, as by the case then appeared, his estate had not suffered at all.

"Were tbe damages given by tbe jury excessive ? Tbis ease bad been previously tried twice. Tbe damages given on both of those trials bad been held excessive. But it was said on tbe argument, and not denied, that on each of those trials tbe plaintiff bad been allowed to recover exemplary damages. On tbe present bis recovery was limited by tbe court to damages compensatory. Tbis is,.therefore, tbe first time that a jury has passed on tbe question of damages in that light.

It was necessary for tbe conductor to use some force, for Mr. Peck made some resistance, though slight. Tbe principal alleged injury was in pulling him from tbe car, when be bad bis band on tbe railing. It is claimed that tbis act wrenched him and injured bis finger, so that subsequently a felon came on it, from which be suffered two weeks. No bone was broken; no blow inflicted. No inability to work was occasioned, unless during those two weeks. And, even as to them, it appears that, at tbis time, Mr. Peck was on. an excursion for health or pleasure.

If any individual, without malice, bad inflicted tbis amount of injury on Mr. Peck, would a jury have rendered a verdict of $3,000 % Considering that tbe conductor was doing what be thought be ought to do, can we avoid tbe conclusion that tbe jury was prejudiced ? Perhaps tbe fact that tbe difficulty arose about Mr. Peck’s claim to ride in a parlor car may have prejudiced them. But whatever tbe cause, is it not obvious that these damages were rendered for something more than tbe mere actual injury to body and mind ? Tbe defendants ought not to be punished for being a corporation, or for running parlor cars. And yet it seems to us that some motive of tbis kind must have influenced tbe verdict. If tbe jury bad passed on tbis question twice before, we might think differently.

Ve think tbe damages excessive, and a new trial must be granted on payment of costs by tbe defendants.

If, however, tbe plaintiff prefers to stipulate within twenty days after service of a copy of tbis order to reduce tbe damages to $1,500 (Murray v. H. R. R. R. Co., 47 Barb., 196; affirmed, 48 N. Y., 655) then tbe motion for a new trial is denied, and tbe order denying a new trial affirmed, without costs to either party.

Present — Learned, P. J., and Bockes, J.; Boardman, J., not sitting.

Motion for new trial granted, costs to abide tbe event, unless, witbin twenty days after notice of tbis decision, tbe plaintiff stipulates to reduce tbe verdict to $1,500, and, in that event, new trial denied, without costs to either party.


author: BoaedmaN, J.:

text:
    LELAND SEWELL, Respondent, v. THE CITY OF COHOES, Appellant.

      Municipal corporation — Streets — bridges ov&>' — accident, caused by.

    For several years prior to August 15,1874, a tramway extended across a strip of land, winch ran parallel to and along the Erie canal in the city of Cohoes, said tramway reaching from a coal yard on the east side of said strip to the canal, which adjoined said strip on the west. The tramway was about ten feet from the ground. The strip of land, which was some fifty feet wide, extended from White street to a bridge over the canal, and was used by vehicles and foot passengers. About eighteen months before that date the strip had been payed and the sidewalk graded by the city. Whether the strip belonged to the State, or was a street of the city, was in dispute.
    On that day the plaintiff seated upon the top of a wagon, twenty-one feet long, containing six lions, was driving six horses through White street, and turned to his right along the said strip, intending to cross the bridge. After the horses turned into the strip, the plaintiff looked to the rear to see if the hind wheels of the wagon would clear the corner, and did not look to the front, until he was so near the tramway, which was near the corner, that he could not stop his horses, and was struck by it and injured.
    In an action by him to recover damages from the city, held, that under all the circumstances of the case, the question as to whether or not the plaintiff was entitled to recover was properly left to the jury, and that a verdict in his favor would not be disturbed.
    Upon the trial plaintiff was allowed against the defendant’s objection and exception, to show that two days after the accident the common council directed the removal of the tramway and that it was accordingly removed. Held, that, although the evidence was inadmissible upon.the question of the negligence of the defendant, yet it was competent to show that the defendant assumed authority to control the said strip and remove the tramway after the accident, as tending to show that it had such authority prior thereto.
    Appeal from a judgment in favor of tbe plaintiff entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried.

      The action was brought to recover damages for personal injuries sustained by the plaintiff while driving a wagon through one of the streets of the city of Cohoes. Along the side of the Erie canal, in that city, where it is intersected by White street, there is a strip of land some fifty feet in width, leading to a bridge across the canal, which has for some time been used as a highway. Some fifteen months before the accident the city had paved this strip and established the grade of the sidewalk. The land ad joining this strip upon the east, was used and occupied as a coal yard, and for some time prior to and after the paving of the same, a tramway had extended from this yard to the canal, at a distance of about ten feet above the pavement, being used to ruii small coal wagons from the yard to the canal. The bridge was situated a short distance north of White street. There was a house, a story and a-half high, standing on the corner of the turn, and between ■ this and the tramway was a high fence, surmounted by a stone wall several feet high. The plaintiff was seated upon the top of a wagon, some twenty-one feet in length, in which were contained six lions, and was driving six horses. He drove through White street, and turned along the canal towards the bridge, which he intended to cross. He was unacquainted with the city and did not know that the bridge was there. After the leading horses turned the corner he did not look towards the bridge, but turned towards the rear to see if the hind part of the wagon would clear the corner; just as the second team passed under the bridge he saw it, and tried to stop the horses, but before he could do so he was struck by the bridge and injured.
    Among other requests to charge, on the part of the defendant, were the following:

      “ Second. That the defendant was not bound to provide a passageway in the street for a vehicle of the unusual size and length of that driven by the plaintiff, and they were guilty of no legal negligence in permitting a bridge across the street only high enough to allow the usual and ordinary traffic, and the passage of vehicles of ordinary and usual size.
    “ Fourth. That if the vehicles were so long that, while turning the corner, it was necessary that an eye should be kept backward on the rear wheel of the wagon, then ordinary care required that some lookout should at the same time be kept ahead.

      “ Fifth. That plaintiff, having kept his eye turned back to the wheel until he was almost directly under the bridge, as he admits, he was guilty of negligence which will prevent a recovery.
    “ Sixth. That the tramway, having been constructed and used by pi’ivate parties, from the canal to the coal yard, before the defendant had paved or in any way adopted the ground under it as a street, they did not, by paving underneath it, or adopting the passage under it as a street, incur the obligation of removing or compelling the removal of the bridge, especially if ordinary vehicles could pass under it without difficulty or danger.”
    All of which requests were refused by the court.
    The jury found a verdict in favor of the plaintiff.

      Samuel Ecmd, for the appellant.

      J. H. OVwte, for the respondent.
   BoaedmaN, J.:

There are many points of resemblance between this case and Blanchard v. Western Union Telegraph Company, decided by the Court of Appeals on appeal from this department. The latter was an action for so negligently laying the company’s cable across the Hudson river at Albany that plaintiff’s steamboat caught upon it, and the scag and propeller were stripped off, and the boat damaged. It appeared that no other vessel, of the many passing over this submerged cable, had ever caught upon it, and that the vessel injured had repeatedly caught upon the cable without serious injury, and that the indications were that the scag on. the bottom of plaintiff’s boat operated as a hook by reason of its defective attachment to the bottom. It was argued (1) that the plaintiff was guilty of contributory negligence in paying no attention to the condition of the bottom of his own boat after repeated warnings that something was wrong; (2) and that the defendant was gnilty of no negligence, nor did it obstruct navigation when it so located its cable that all vessels except this one passed over it without trouble, many of such vessels having a greater draft of water than plaintiff’s. But the Court of Appeals sustained a judgment rendered for the plaintiff by a referee, holding that the questions of negligence and contributory negligence were npon tbe evidence questions of fact and not of law, and that the findings of the referee were conclusive upon courts of review in those respects. There is, I think, in the case now under consideration greater evidence of negligence on the part of defendant, and less evidence of contributory negligence by plaintiff, than in the case referred to. As a consequence, the motion for a nonsuit was properly denied. It is not quite clear that the bridge or tramway passed over lands adjoining the canals belonging to the State. The evidence of Greene with the map tends to establish that fact, but such purpose was disclaimed in connection with its admission. Notwithstanding the allegations of the pleadings, I think enough appears to raise a presumption that the property belonged to the State. However that may be, the defendant had, prior to the disaster, taken possession of this land and graded it for a street, and in effect invited its use for such purposes. In such a case I think the defendant was bound to exercise the same degree of care as if it owned the right of way for the purpose of a street.

The nature of the obstruction and the character of the team and vehicle under plaintiff’s charge were proper subjects for consideration by the court and jury. The learned judge submitted such matters fairly to the jury, and properly left it for the jury to say whether a cause of action was established by the negligence of the defendant and the absence of negligence by the plaintiff. He was not called on to decide as a legal proposition whether this vehicle was of such unusual size and length as not to be entitled to passage along the street, as requested in defendant’s second proposition. That was a question of fact, not of law, and it was proper to decline the whole proposition of which that was part. The fourth and fifth requests to charge were properly disposed of. The fifth request, if assented to, would have made the plaintiff’s negligence due to a single fact, whereas no one fact alone can settle such a question. Negligence must depend upon all the circumstances surrounding the transaction. The fourth request had been covered, so far as it was good law, by the charge already made. So, too, of the sixth request to charge. So far as it was correct, it had been charged. Whether the defendant incurred the obligation to remove the bridge after adopting the ground under it as a street, even though ordinary vehicles could pass under it without danger, was a question of common prudence. Was it safe and prudent for the defendant to prepare a street and invite travel through it and under this bridge in the condition in which it was ? That was not for the court to determine. If it was, where is the limit at which it ceased to be a legal question ? Does the law say how high a bridge shall be above the highway to exempt from liability ?

Several exceptions were taken to rulings made in the admission or exclusion of evidence.

It will only be necessary to consider one of them. The injury complained of occurred August 15, 1874 Afterwards and on the seventeenth of August the common council passed a resolution directing the removal of this tramway or bridge, and it was removed. The plaintiff offered this resolution and removal in evidence. It was objected to by defendant as not admissible, being after the time of the accident. The court thought it might bear upon the question whether the common council had control of the street, and allowed the question.” The defendant excepted to such ruling.

In Dougan v. Champlain Transportation Company (56 N. Y., 8), such evidence was held to' be improper upon the issue of negligence. Unless another and proper purpose can be shown for the admission of such evidence in this case, it was error and a new trial would follow. It was not admitted by the learned judge as evidence of negligence, but as tending to show that the defendant assumed authority to control the street and cause the obstruction to be removed. Such exercise of control, even after the injury, is some evidence of power and authority before the accident, the facts being the same. The defendant endeavored to exempt itself from liability by showing it had no title to the street over which the bridge passed, and that as a consequence it had no right to cause the removal of the bridge built by others. Hence it asked, as an inference, that the city should not be held negligent in a matter which it could not prevent. "Whs it not proper to repel such inference by showing the exercise of the necessary power with success after the accident ? Does not that tend to show the existence of the power before the act? Does it not tend to show the existence of a power and authority over this street and bridge, creating a responsibility for neglect of duty in respect thereto? These questions should, I think, be answered in the affirmative, and for such purpose the evidence was admitted. The propriety of this ruling is sustained by Mauderschid v. City of Dubuque (4 Amer. R., 196, 204; 29 Iowa, 73), in which is cited Folsom v. Underhill (36 Vermont, 580), as an authority for the same view.

I conclude, therefore, that we are not controlled by Dougan v. Champlain Transportation Company (ante), and that the distinction between the two cases which I have made is justified by the facts in the ease.

It is not considered necessary to discuss the other exception taken respecting evidence. They are not believed to be well taken.

"We conclude, therefore, (1) that the negligence of the respective parties under the evidence was not a question to be decided by the court, and was properly left to the jury; (2) that the charge of the court was eminently fair and plain, and the judge did not err in so far as he refused to charge as requested by the defendant’s counsel; (3) that there was no fatal error in the rulings upon the admission or rejection of evidence; and (4) that as a consequence no error-was committed in refusing a motion by the defendant for a new trial made upon the minutes.

The judgment and order should therefore be affirmed, with costs.

Learned, P. J., concurred; Bocees, J., dissented.

Judgment and order affirmed, with costs.


author: LearNed, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. ROGER HICKEY and JOHN B. LYNCH, Plaintiffs in Error.

      OTia/g. 74 of 1854 — what necessary to authorize conviction under.

    Under chapter 74 of 1854, providing for the punishment of any person convicted of “ any assault upon the person of another with any knife, dirk, dagger or other sharp, dangerous weapon,” no conviction can he had unless the weapon with which the assault is made is sharp, as well as dangerous.

      Writ OK ERROR to tbe Court of General Sessions of Warren county, to re-view tbe conviction and sentence of tbe plaintiffs in error of an assault with intent to kill.
    Tbe indictment charged that tbe plaintiffs in error assaulted one William J. Davis with an iron stove griddle or cover, a club and a chair, with intent to kill him.
    Tbe jury rendered tbe following verdict: “ Guilty of an assault and battery, without justifiable or excusable cause, with a dangerous weapon, with intent to do bodily barm.” Tbe prisoners were then sentenced to bard labor in tbe State prison for two years, under tbe act of 1854.

      A. J. Cheritree, for tbe plaintiffs in error.

      Gha/rles M. Mott, for tbe defendants in error.
   LearNed, P. J.:

We have no doubt that tbe statutory offense must be an assault ■with a sharp as well as with a dangerous weapon. This is tbe reasonable construction of tbe language. It is also tbe construction implied by tbe language of tbe Court of Appeals in tbe case of Filkins, plaintiff in error, v. The People, defendants in error (4 Weekly Digest).

In tbe present case tbe jury did not find that tbe assault was with a sharp weapon, and it was not, in fact. Tbe verdict, therefore, is in effect for an assault and battery. And the judgment must be reversed, and tbe case remitted to tbe Court of Sessions for a sentence, viz., for a conviction for assault and battery.

Present — LearNed, P. J., Bo'oKes and BoardMAN, JJ.

Judgment reversed and case remitted to Court of Sessions for sentence on verdict of assault and battery.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs in Error, v. FRED. W. PIERCE, Defendant in Error.

      Arson in tJwrd degree— chap. 197 of 1862 — what must be alleged in indictment for.

    In an indictment for arson in the third degree, under section 10 of chapter 197 of 1862 — providing that “ every person who shall willfully set Are to, or burn in the night-time, any store or warehouse not adjoining to or within the curtilage of any inhabited dwelling-house, so that such house shall not be endangered by such firing, shall, upon conviction, be adjudged guilty of arson in the third degree” — it is not necessary to negative the exception therein contained, and allege that the store or warehouse burned was not within the curtilage of an inhabited dwelling-house as specified in the statute.
    Writ of error on bebalf of tbe people to tbe Court of Sessions of tbe county of Essex, to review a decision of tbe court quashing an indictment and rendering a judgment in favor of tbe defendant in error.
    Tbe defendant was indicted for arson. Tbe indictment containing three counts, each charging tbe plaintiff with willfully and feloniously setting fire to, and burning in tbe night-time, two stores situated in tbe town of Westport. Tbe defendant’s counsel demurred to and moved to quash tbe indictment, on tbe ground that it was not alleged whether tbe stores were or were not adjoining to, or within tbe curtilage of, any inhabited dwelling-house, so that such bouse would be endangered by such firing.
    Tbe court granted tbe motion, and tbe case was brought to tbe General Term by Tbe People, pursuant to chapter 82 of tbe Laws of 1852.

      Robert 8. Hale, for tbe plaintiffs in error.
    Waldo, Tobey <& Grover, for tbe defendant in error.
   Learned, P. J.:

It is true that, in many cases, where an indictment is found for a statutory offense, it must negative any exceptions made in tbe statute. Tbe reason of this is evident. Tbe absence of those facts which are excepted by tbe statute, goes to make of tbe act done a criminal offense. For instance, if one were indicted for selling liquor without having a license, it is the fact that he has no license which makes an offense of the act of sale.

But, in the present case, the words of exception in the statute, “not adjoining to or within -the curtilage,” etc., do not go to con stitute the act of burning a criminal offense. They are intended only to except from the statute a class of acts which were already, by another statute, an offense of a higher degree. That statute had made it a crime to burn in the night-time any store or warehouse, even though it were not adjoining to or within the curtilage, etc. By the two statutes any setting fire in the night-time to a store or warehouse is a crime. If the store or warehouse be adjoining to or within the curtilage, etc., the crime is of a greater, if not, then of a less degree.

We think, therefore, that the judgment should be reversed and the people should have judgment on the demurrer and motion to quash, with leave to the defendant to plead to the indictment, and the case should be remitted to the Court of Sessions.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order quashing indictment and judgment on demurrer reversed defendant in error to be allowed to plead to indictment; case remitted to Court of Sessions.


author: Leauned, P. J. : Bockes, J.

text:
    BENJAMIN A. FRASER, Respondent, v. DANIEL S. GILBERT, Appellant.

      Chattel mortgage — when void as to creditors.

    December, 1869, B. Y. Fraser executed a chattel mortgage to Harriet Marvin, -wbicb was never filed until April 1,1874, when it was immediately withdrawn, nor was there any immediate change of possession. In the winter of 1870-1871, the property was put up in a lump and sold to the mortgagee. It still remained, as it had theretofore, in the Everett House. In the spring of 1874 the mortgage was assigned to the plaintiff, the son of the mortgagor, who allowed the property to remain, as before, in the possession of his mother, who was carrying on the house. He lived in the house with his father and mother. In the fall of 1874/ he removed a portion of the furniture to another house.

      In June, 1873, S. and others recovered a judgment against B. Y. Fraser, for a debt incurred in September, 1869, on -which they issued an execution under which the property was seized. In an action by the plaintiff against the sheriff, held, that the mortgage was void as against the judgment creditors, and that the plaintiff was not entitled to recover.

      Semble, that had the plaintiff been a purchaser of the property instead of an assignee of the mortgage, he could have recovered. (Per Bocees, J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought against the defendant, a deputy sheriff, for the alleged conversion of certain furniture seized by him under an execution issued upon a judgment recovered against one Benjamin Y. Fraser, the father of the plaintiff, for a debt contracted between June and September, 1869.
    Plaintiff claimed to be entitled to the property by virtue of a chattel mortgage executed by Benjamin Y. Fraser to Harriet Marvin, which had subsequently been assigned to him by the personal representative of Harriet Marvin by the following indorsement on the back of the mortgage: “ For value received, I hereby assign the within to Benjamin A. Fraser. Mary L. Marvin, per Pike, attorney.”

      Ga/rr dk Peters and J. B. Putnam, for the appellant.

      P. H. Cowen, for the respondent.
   Leauned, P. J. :

There is evidence enough to warrant a finding tnat the. attorney who signed the transfer of the mortgage was authorized to do so by Mary L. Marvin. It was then sufficiently executed as by the representatives of the estate of Harriet Marvin. (Hertell v. Bogert, 9 Paige, 52.)

The referee finds that the chattel mortgage, executed in December, 1869, by Benjamin Y. Fraser, then owner of - the property, to Harriet Marvin, was never filed in the clerk’s office until April 1, 1814, when it was filed and immediately withdrawn; that the mortgagor remained in possession at least for one year; and that there was no immediate change of possession.

The sale by the mortgagee in the winter of 1870-1871, and the purchase by her of the mortgaged property did not change her rights. (Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y., 403.) There is no evidence that the mortgagee then took possession of the property. It remained as it had been in the Everett House. Nor is there any evidence that after the death of the mortgagee in March, 1872, her representatives took possession of the property. In the spring of 1874, the transfer to the plaintiff was written upon the mortgage and was signed in the name of Mary L. Marvin by her attorney. It appears that after this transfer was made, the property still continued until the fall of 1874, in the Everett House, where the wife of the mortgagor was still carrying on the house and where the property (furniture) was still used the same as before.

The plaintiff testifies that in the spring of 1874, the mortgagor handed him the mortgage with the transfer written on it; that he went through the house to see the property was there; that he took the furniture and varnished it (the mortgagor buying and preparing the varnish); that he put the furniture in good condition and put it in the rooms of the Everett House and let his mother use it, who was then running the house; that he had always lived with his father and mother; that the Everett House was run the same as it had been for several years before, and the furniture used the same as it had been for years before.

In the fall of 1874, the plaintiff seems to have taken part of the personal property to the McNulty House; the bedding and crockery. AIL the bureaus, bedsteads, mattresses and carpets, were still left at the Everett House.

In June, 1872, Norman Sherman and others recovered judgment against Benjamin Y. Eraser, for a debt contracted by him between June and September, 1869. On that judgment they issued execution December 12, 1874, and the defendant, as deputy sheriff, seized and sold thereunder this personal property.

It seems to me plain that Mary L. Marvin never had any other interest in the property than as mortgagee. The alleged sale to herself gave her no additional title. (Buffalo Steam Engine Works v. Sun Mut., ut supra; Pulver v. Richardson, 3 N. Y. S. C. [T. & C.], 436.) The parties evidently treated the matter in this way and disregarded the alleged sale. The transfer to the plaintiff was on its face a transfer of the mortgage; not a bill of sale of the property described therein. There are, therefore, no third parties who have purchased the property in good faith under a sale thereof. The plaintiff succeeds only to the rights of Harriet Marvin, the original mortgagee.

The mortgage was not accompanied by an immediate delivery; nor was it followed by an actual or continued change of possession. As it was not filed, therefore, it was absolutely void as against the creditors of Benjamin V. Fraser. (2 R. S. [m. p.], 136, § 9.)

The judgment creditors were creditors of the mortgagor when the mortgage was executed. Under the decision in Thompson v. Van Vechten (27 N. Y., 568), they have a right to go bach to the origin of their debt and show that the mortgage was void as to them. This case is approved in Parshall v. Eggert (54 N. Y., 18). The plaintiff claims that the case of Van Heusen v. Radcliff (17 id., 583) is in conflict with this doctrine. That case only decides that a voluntary assignee in trust for creditors is not a purchaser, against whom a mortgage is void for want of filing. It decides nothing as to the rights of creditors.

The case of Tiffany v. Warren (37 Barb., 571), only holds that a second mortgage for a precedent debt is not a mortgage “ in good faith,” under the meaning of this statute. It decides nothing as to creditors by judgment and execution.

In the case of Hale v. Sweet (40 N. Y., 97), the language cited by the plaintiff was in a dissenting opinion. The decision is not in conflict with the doctrine above stated. And the same may be said of the decision in Porter v. Parmley (52 N. Y., 188), also cited by the plaintiff.

It does not affect the parties that the mortgage had become payable by its terms. “ Once a mortgage it so continues for the purpose of filing.” (Ely v. Carnly, 19 N. Y., 496).

We have then a case where the statute declares the mortgage to be absolutely void. "When a mortgage is given and not filed, and no delivery of the property is made, and at a subsequent time the property is delivered and there is then an actual and continued change of possession; and after such delivery the mortgagor becomes indebted, it is not necessary to inquire whether the mortgage may not be valid as against such indebtedness. But that is uot the present case. Here no immediate delivery was made and no change of possession was had. The mortgagor continued in possession, and it does not seem that any actual change of possession was made until the fall of 1814; if then.

Under 2 Revised Statutes (m. p., 136, §§ 5, 6), also, this mortgage is presumptively fraudulent and void. It was necessary for the plaintiff to show that the mortgage was made in good faith and without intent to defraud. How far the testimony established this need not now be examined.

There are some objections taken by the defendant to the evidence which should have been allowed. As there must be a new trial on other grounds, it is unnecessary to specify them.

The plaintiff claims another title to the piano. It appears that this was levied on for taxes, and it is claimed to have been bid off by the mortgagee at a sale by the collector. But the difficulty with this claim is that the only transfer to the plaintiff was of the mortgage. If there was a purchase by the mortgagee at the collector’s sale, which gave her a title other than as mortgagee, then that title was not transferred to the plaintiff by the’ indorsement on the mortgage. If, on the other hand, the payment by the mortgagee is to be considered as made only to protect her interest, and she is to be treated still as mortgagee of the piano, then the same objection remains, which was above stated, that the mortgage was not filed.

Judgment should be reversed and there should be a new trial, costs to abide event and reference discharged.

Bockes, J.

(dissenting).

The referee finds that the plaintiff was the owner and in possession of the property at the time it was taken by the defendant on execution against Benjamin Y. Fraser. I think the evidence sufficient to sustain this finding. As regards the piano-forte, the plaintiff made title as well under the mortgage and sale of it to him by the personal representatives of the mortgagee as also under the tax sale and its subsequent transfer to him by the purchaser.

Benjamin Y. Fraser was the original owner of the property. This is conceded by all parties. He mortgaged it to Mrs. Harriet Marvin, and it is found, and the evidence is abundant to sustain the finding, that the mortgage was bona fide; that is, it was made in good faith to secure an honest indebtedness. There was a foreclosure of the mortgage, and the property was purchased in by Mrs. Marvin, the mortgagee. Mrs. Marvin died, and her personal representatives sold and transferred the property to the plaintiff. This makes a perfect train of title from B. Y. Fraser, the original dwner, to the present plaintiff, a purchaser from the personal representatives of the mortgagee after foreclosure. The question then is, whether the evidence will support this line of title.

In the first place it is insisted that the plaintiff is without title either in form or in fact; that there was no sale to him. It appears, however, that there was a transfer in form by an indorsement on the back of the mortgage, in which mortgage the property was particularly described, transfering it to the plaintiff. The language of the transfer is as follows: “ For value received", I hereby assign the within to Benjamin A. Fraser.” This was sufficient in form to transfer the property; certainly it was sufficient, in the absence of all proof tending to countervail the manifest intention and purpose of the writing. But the proof shows, beyond controversy, that it was the intention of the parties to transfer the title to the plaintiff by this instrument. The evidence of such intention is unmistakable, and, indeed, this is not disputed in fact. It was executed, it is true, in form by one of the two joint owners, but by the agent of both, from whom he had full authority to act. The parties, represented by such agent, were the administrators of Mrs. Marvin, and they were also owners by gift under her will. They were, therefore, the owners, both in their representative capacity and by bequest. They were joint owners, and held as joint owners, and each as well as both, had the right to make the transfer. The execution of the paper evidencing the transfer to the plaintiff was therefore well enough as evidence of the sale. The transfer was, in fact, authorized by both, and was made for both. In making the sale and transfer, the agent testifies that he acted under authority from both, and intended to transfer the property from them to the plaintiff. As was said in Campbell v. Birch (60 N. Y., 218), under a somewhat similar state of facts, “ the real intention and legal consequences of the transaction was to transfer to the plaintiff the property embraced in the mortgage.” Thus, it seems, there was a transfer of the property to the plaintiff sufficient in form, and valid in point of intention.

But no writing was at all necessary to a valid sale. The transfer was on valid and sufficient consideration. It was enough that the transfer was by oral agreement, with consideration paid, and with delivery of the property to the vendee; and it may be here added that the transferrors or vendors do not gainsay the transaction, but in fact confirm it. The sale and transfer, to the plaintiff, was, therefore, sufficient to sustain his title, so be it, that his vendors were owners. The question, then, is, whether the title thus acquired by the plaintiff, by purchase, from the personal representatives of Mrs. Marvin, who also claimed under the bequest in her will, will be protected against the creditors of Benjamin Y. Eraser, the original owner and mortgagor. The mortgage was given in good faith, and for value, and had it been immediately filed in the proper office, as required by the statute, with a view to the protection of the mortgagee, no question would have arisen to the prejudice of the mortgagee, or to the prejudice of any one claiming through or under her title and rights.

The' mortgage, however, was not filed in the proper office, and for this reason it is claimed that it was void by the statute as to the creditors of the mortgagor.

The case of Thompson v. Van Vechten (27 N. Y., 568), also Parshall v. Eggert (54 id., 18, 22), and Stewart v. Beale (14 N. Y. Sup. Ct. R. [7 Hun], 405), are cited in support of this position. The decision in Stewart v. Beale was affirmed in the Court of Appeals, but is yet unreported in the New York Reports. Now, unquestionably, if the levy in this case, under the execution, against the mortgagor, had been made before the mortgagee had taken possession of the property, or had taken any steps to enforce the mortgage, the creditor would have been protected against the claim of the mortgagee. In that case the mortgage would have been deemed void as to the creditor. This is the doctrine of the cases cited in exposition of the statute. But the case in hand has these distinguishing features. The mortgagee had taken possession of the mortgaged property; had foreclosed the mortgage by public sale ; had become the purchaser at such sale; had died the absolute owner in possession, and her personal representatives had again sold the property to the plaintiff, and the latter was in possession when, after all this, the defendant made the levy here put forward as a justification for his action.

Now, admitting that the levy would have been valid in law, and conclusive against the mortgagee until the latter had asserted her right to the property by taking it into possession, or even further, in this ease, until foreclosure, or even further yet, as here, until again sold to a third party by the purchaser at foreclosure sale, would it also be valid if made after any or all these proceedings had been taken? No case in the books yet holds the affirmative of this. If it should be so held, when will the title vest so that the creditor of the mortgagor may not follow the property with his execution, or have other proceedings to reach it or its avails ? If sold by the mortgagee, may the avails of the sale be taken from him by the creditor and applied on the debt on a proceeding having that object in view ? Will nothing short of the statute of limitations close the creditor’s right to pursue the property or its avails, if sold ? In this case, the plaintiff held the position of purchaser, and, according to the evidence, his position seems to be that of a bona fide purchaser. True, the transfer to him is on the mortgage, and let that stand alone unexplained, it would make him an assignee of the mortgage rather than a purchaser. But, under the explanation of the transaction, as given by the witnesses, Mr. Crane, Mr. Fraser, and others, the transaction was a sale of the property, and the indorsement, by way of transfer, on the mortgage ivas to identify the property intended to be transferred. All understood that Mrs. Marvin, at the time of her decease, held the property as her own, having become the purchaser at the foreclosure sale; and her personal representatives, who made the transfer to the plaintiff after Mrs. Marvin’s decease, held the property, and claimed to hold it by absolute title. Thus holding, they made the transfer, intending it as a sale of the property, rather than a mere assignment of the mortgage. The plaintiff’s right to the property was, therefore, as purchaser, and was superior to that of any creditor of the mortgagor. His right to the property was complete on its sale to him with delivery. The title to it vested in him while yet it was free from the legal claim of any creditor. Thus, in the absence of all fraud in the transfer to him, his title was perfect and absolute.

This conclusion must lead to an affirmance of the judgment, without determining the question whether the right of a bona fide mortgagee is not superior to that of a creditor, so soon as he asserts his right to the property by taking it into his actual possession, although he may have omitted to file his mortgage in the proper clerk’s office; so be it, that the property is then free from attachment or execution levy by a creditor. Nor is it necessary here to declare the rights of Mrs. Marvin’s personal representatives; as if the levy been made before the sale by them, they holding under the foreclosure sale made by Mrs. Marvin during her life, for here the property had passed from them on sale to the plaintiff. But a word as to the piano-forte. The plaintiff’s title to the piano-forte may be maintained under the tax sale. It was sold for taxes, -and Mrs. Marvin became the purchaser. The referee finds the value of the piano, at the time of the levy, to have been $180. The plaintiff should clearly have an affirmance of the judgment for this sum, whatever should be the conclusion as to the property specified in the mortgage, other than the piano. But I am of the opinion that the judgment is right for the sum awarded by the referee.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed and new trial granted, costs to abide event 5 reference discharged.


author: Learned, P. J.

text:
    JOSEPH FOXELL and THOMAS JONES, Respondents, v. GEORGE W. FLETCHER, Appellant.

      Extension of time of payment of debt — vacates a prior order of a/rresi.

    Appeal from an order denying a motion to vacate an order of arrest.
    The order was granted January 2, 1877, on an affidavit showing that an action was about to be commenced for commissions received by the defendant, which he had fraudulently neglected to pay over to the plaintiffs. On the fifth of January, one Jones entered into an agreement with the plaintiffs, by which he transferred to them certain real estate in consideration that the defendant should have thirty-eight months to pay the amount of his indebtedness, the conveyance being made to insure the payment of the debt. The agreement also contained a provision for the payment of twenty-five dollars monthly, but whether this was obligatory upon, or optional with, the defendant, was disputed. The defendant having failed to pay any thing under the agreement, the plaintiffs caused his arrest under the original order, on March 26, 1877.
    The court at General Term said: “ The conveyance from Andrews, whether absolute or as security, was a good consideration for the plaintiffs’ agreement. And whether that agreement be construed as an unqualified extension for thirty-eight months, or as an extension, contingent on the prompt payment of the installments, in either case ■there was an extension of the time, as' the plaintiffs themselves admit, for one month at the least. For one month, therefore, at the least, the plaintiffs had no cause of action on which they could sue. It seems to us, then, that an order of arrest, granted before this extension, onglit not to be in force, after the plaintiffs’ right of action had thus been suspended. Nor should it be again in force after the suspension of the right of action had expired. The suspension was more than a stay of proceedings in an action.
    We do not say that a new order of arrest might not be granted, if the suspension has expired, or when it shall expire.”

      lioss dk Jones, for the appellant. Uem'ij A. Merritt, for the respondents.
   Opinion by

Learned, P. J.

Present- — Learned, P. J\, Bookes and Boardman, JJ".

Order reversed, with ten dollars costs, printing and disbursements; and motion granted, with ten dollars costs; plaintiffs to have leave to offset those costs, etc., against their claim.


author: Opinion by Boardman, J.

text:
    STEVENS V. TRULL, Respondent, v. ALEXANDER BARKLEY AND OTHERS, Appellants.

      Contact for excavation — modification of— Receipts — explanation of.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover for services rendered in making certain excavations for the defendants. After the making of the contract under which the work was done, it having been discovered that the amount of the rock excavation had been underestimated, it was agreed “ that the plaintiff should go on with the contract, and should have ninety-five cents per cubic yard -for rock excavation, and be paid for other excavation at the prices named in the contract.” This action was brought to recover for portions of the rock excavation which had not been paid for. The defendants claimed that they had paid in full, and introduced in evidence, monthly estimates of their engineer, and payments made in pursuance thereof, and plaintiff’s receipts therefor, which they claim were final and conclusive. The referee allowed the plaintiff to prove that the •estimates were made ex parte,. and were erroneous ; and that the receipts were not intended to be given or received in full settlement of all claims.
    With reference to the admission of this testimony, the court at General Term said: “It is urged that the receipts of payments were given on recognized and acknowledged estimates, and were in full, hence are absolutely conclusive- of the plaintiffs claim; but the receipts were open to -explanation, on both of these points, by parol proof. Those receipts were not in the nature of contracts in any respect; and it is the settled rule of law that mere receipts may be explained, as to the consideration, when the explanation is not contradictory to, but consistent with, the instrument. (JEgleston v. Kmoherbaoher, 6 Barb., 458; Goon v. Knap, 8 N. Y., 402, 405 ; Bonesteel v. Klaole, 41 Barb., 435 ; Buswell v. Poineer, 31 N. Y., 312; Boardman v. Gaillcvrd, 8 N. Y. S. C. R. [1 Ilun], 211.) In the last case cited, the receipt was given to close account,’ and purported to be £ in full of all demands,’ but it was held that the party was not concluded by it. The court said that it was in no just sense a contract, and held it open to explanation. This case was affirmed in the Court of Appeals February 16, 1815, but not reported. The case of Buswell v. Poineer (supra) is to the same effect. (See, also, Tobey v; Barber, 5 Johns., 68.) It is quite manifest, from these decisions, that the evidence given explanatory of the receipts in this case was admissible for that purpose, and that the receipts were not absolutely conclusive against the plaintiff’s claim.
    It appears, therefore, that the case was one of fact for the referee, on a consideration by him of all the evidence submitted, and, according to well-settled rules, this court cannot interfere with his conclusions.”
    Learned, P. J., and Bocees, J., concurred.

      P. 8. Nvoer, for the appellant. Smith, Bcmai'oft & Moale, for the respondents.
   Opinion by Boardman, J.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.


author:
Davis, P. J.:
      Brady, J.

text:
    CHRISTIAN F. A. DAMBMANN, Respondent, v. HERMAN SCHULTING, Appellant.

      Moral obligation — agreement to pay debts when able — enforcement of — fraudulent concealment— effect of — duty of debtor asking release from creditor.

    The plaintiff and others entered into an agreement by which, in consideration of one dollar to them paid, they agreed to discharge H. Schulting from the legal obligation to pay certain money loaned to him February, 1866“said Schulting giving his moral obligation to refund the said money in part or whole as his means will justify in the future.” Held, that Schulting was not thereby absolutely discharged from the debt, but that the agreement merely suspended his legal liability until he should be in such a condition as that a moral obligation to pay it would fairly exist, and that then his failure to perform this moral obligation would revive the legal liability, and the same could be enforced by action. (Brady, J., dissenting.)
    In August, 1868, Schulting sold his stock in trade to S. & Co. for $225,000, out of which they were to pay debts amounting to about $193,000, the balance to go to him, he being also entitled to one-third of any amount which S. & Co. might realize on the sale of the stock over the purchase-price. In the same month he called upon plaintiff and made a statement as to his affairs, telling of the sale and stating that his one-third in the surplus over the $225,000 was worth little or nothing; that he had offered to sell it for $20,000. He had, in fact, made an offer to sell it at that price, but withdrew it in a few days; subsequently he realized $90,000 for it.
    In October he paid the plaintiff $5,000, and procured from him a release of the whole debt, $10,000. At the time of this payment S. & Co. had already realized over $400,000, for the stock of goods, and a large amount was still unsold, of which facts he said nothing to the plaintiff, who was ignorant of them. Jleld
      that it was a fraud on liis part to conceal those facts from tlie plaintiff, and that the release given to him1 was avoided thereby. (Brady, J., dissenting.)
    The utmost good faith is required of a debtor seeking to procure a discharge from his indebtedness for less than its full amount; and he is bound not to induce, or to permit the action of his creditor to be influenced, by any false representation, material concealment, or ignorance of any fact, touching his own real condition. (Brady, X, dissenting.)
    Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court, without a jury.
    This action was brought to have a release, given upon the receipt of one-half of a debt due from the defendant, set aside on the ground that it was executed under a mistake of material facts caused by the representations and concealments of the defendant, and to recover from him the balance of the indebtedness remaining unpaid, with the interest due thereon.
    It appears from the findings of the justice before whom the action was tried, that, on the 17th day of February, 1866, Charles F. Dambmann & Go. loaned to defendant $10,000, to be paid whenever he should be able to pay the same. That plaintiff is the sole surviving partner of said firm, and the sole owner of this claim. On the 7th of March, 1867, the plaintiff’s firm, with other of defendant’s creditors, entered into and executed an agreement with the defendant in these words:
    “"We, the undersigned, agree, in consideration of one dollar paid to us, to discharge II. Schulting from the legal payment of the money loaned to him February 1, 1856, said Schulting giving his moral obligations to refund the said money in part or whole, as his means will allow in future.”
    On the 8th of October, 1868, the defendant paid to plaintiff’s firm the sum or $5,000, and the plaintiff’s firm, with the other creditors of defendant, executed to defendant a general release under seal, releasing the defendant from all claims and demands. The $5,000 so paid being the $5,000 mentioned in the following receipt:
    “New York, 1th October, 1868.
    “ Received from Mr. Herman Schulting, five thousand dollars, in full of all claims to date. $5,000.

      { 1;B™} “ C. F. DAMBMANN & CO.”

      That prior to this release, and in August, 1868, defendant sold his large stock of goods to Stursberg & Co. for $225,000, on the terms that Stursberg & Co. pay his debts — amounting to $192,000 — the balance of .the $225,000 to go to defendant, and with an agreement that Stursberg & Co. should pay to defendant one-third or any amount for which Stursberg & Go. might sell the said goods over $225,000.
    That early in the same month of August, defendant made a statement to the plaintiff of his means in detail, of his sale to Stursberg & Co., and stated to plaintiff that the one-tliird interest in the sum of which the goods would realize over $225,000 was worthless, and he had offered to sell it for $18,000 or $20,000.
    That defendant did offer to sell the said interest for $20,000, but in a few days after withdrew his offer and refused to consummate the same.
    That said interest was worth $100,000, and defendant did realize $90,000 for the same.
    That on the 6th October, 1868, defendant came to ,the store of plaintiff and obtained the release aforesaid on the payment by him of $5,000.
    That a portion of the goods aforesaid had then been sold by Stursberg & Go. for $400,000, and a sale of the residue increased the total sum to $576,981.
    That defendant, at the time, had knowledge of the sale ol said goods for $400,000. Plaintiff had not.
    That defendant has means sufficient to pay the debt in question, and is worth upwards of $100,000.

      G. Baimbridge Smith, for the appellant.
    An action is not maintainable upon a moral obligation. (Stafford v. Bacon, 1 Hill, 539; S. C., 2 id., 353; Ex parte Hall, 1 Deac., 171; S. C., 38 E. C. L., 426.) The general release under seal, executed by the creditors of the defendant to him on the 6th of October, 1868, could only be declared invalid on the ground of fraud ; and to establish such fraud the evidence must be clear, precise and indubitable. (lefler v. Field, 52 N. Y., 621; Perm. P. Go. v. Shag, 3 "Weekly Dig., 211; Stine v. Sheris, 1 "W. & S., 195. Irwin v. Shoemaker, 8 id., 75 ; Bean v. Fuller, 4 "Wright, 47; Wilson v. Wilson, 2 Dev. Ch., 181; Dudley v. Scranton, 57 N. Y., 424.)

      W. Watson, for tlie respondent.
    An act done, or contract made under a mistake or ignorance of a material fact, is voidable and relievable in equity. (1 Story Eq., §§ 140-193.) The rule applies not only to eases where there has been a studied suppression or concealment of the facts by the other side, which would amount to fraud, but to many cases of innocent ignorance on both sides. (Curtis v. Lernitt, 15 N. Y., 193 ; 9 Pick., 130; 8 Barb., 233; Hammond v. Permock, 61 N. Y, 145; Park v. Gurney, L. B., 13 Eq., 79, 113; Smith v. Him. P. Co., L. B., 2 id., 264; Michigan v. Phoenix Bank, 3 N. Y., 24; Few York Exch. Go. v. BeWolf, 31 id., 273; Carter v. Boehm, 3 Burr., 1910 ; Yon Cortland v. Under-hill, 17 John., 405; Bóbson v. Pierce, 2 Kern., 164.) The agreement first set up in the answer to discharge Schulting without payment, he giving his moral obligation to refund the money in part or in whole, as his means will allow, is without consideration and void. (1 Smith’s Lead. Cas., 350, where cases are collected; Fitch v. Sutton, 5 East, 250; 2 B. & A., 313; Stratton v. Pas-tall, 2 T. & ít., 366.) If this were a composition agreement, it is subject to one fatal objection, viz., the terms on which it was given have not been complied with. Schulting, so far from giving his moral obligation to refund when he is able, directly refuses to refund. His ability was clearly shown. All the cases hold that if the terms of the composition agreement be not exactly followed by the debtor, the creditor is remitted to his original rights; the onus is with the debtor. (Fellows v. Stevans, 24 "Wend., 302; Balsen v. Arnold, 10 How., 530; Oughton v. Trotter, 2 N. & M., 71; Granby v. Ililay, 2 M. & S., 120 ; Posting v. Maggend/ye, 16 M. & W., 181; Evans v. Purvis, 1 Exch., 601.) This writing lacks every element of a composition deed. . The debtor pays nothing. The creditor does not discharge in full, but leaves a moral obligation in force. (Ga/rardv. Wool/ner, 8 Bing., 258; Fellows v. Stevens, 24 Wend., 302.)
   Davis, P. J.:

The learned justice at Special Term, in deciding this case, pronounced the following opinion:

“ Yan Yorst, J. Tlie agreement, signed by the plaintiff’s firm, with others of the defendant’s creditors, on the 17th day of March. 1867, is in these words, ‘We, the undersigned, agree, in consideration of one dollar paid to us, to discharge H. Schulting from the legal payment of the money loaned to him, February, 1866, said Schulting giving his moral obligation to refund the said money in part or whole, as his means will allow in the future.’
“ I do not regard this paper, as is claimed by the defendant’s counsel as an absolute discharge of the debt in question, and there was substituted and accepted in place thereof a moral duty only, not to be enforced by action in the event that the debtor should afterwards acquire means sufficient to enable him to pay the claim in whole or in part.
“ The agreement to discharge ‘ from the legal payment ’ is, in fact, conditioned upon the debtor’s promise to refund the money loaned should he acquire the means in the future to do so. If he did not acquire such means then all legal claim was abandoned, but if he did, the legal claim existed, to be enforced by action in the event that the conscience of the debtor refused to recognize the obligation to pay the money.
“The paper may, in truth, be regarded as an agreement not to enforce the legal liability, so long as the debtor was without means to pay.
“And the evidence shows that the defendant yet considered himself under a valid obligation to pay; hence afterwards, and on the 6th day of October, 1868, he paid the plaintiff $5,000 of the oidginal loan of ten thousand, and received the signature of the plaintiff’s firm, under seal, to a complete and full release from all claim and demand whatever. The plaintiff claims that the signature of his firm was obtained to the release by false statements and suppression of material facts made by defendant, and that, had the truth been stated they would not have executed the release. In August, 1868, the defendant sold his large stock of merchandise to Stursberg & Co. for the sum of $225,000, the purchasers to pay his debts thereout, amounting to about $192,000. By the conditions of sale the defendant was entitled to one-third of any amount Stursberg & Co. might realize on a resale thereof over and above the amount they had paid for same.
“ Early in the same month the defendant made a statement to the plaintiff of his means, entering into details, and, among other things, gave the particulars of his transactions with Stursberg & Co., and added,' ‘ as for that one-third interest in the sum which the goods would realize over $225,000, that was worthless. It was worth little or nothing. In fact, he had offered to sell it the other day for $18,000 or $20,000.
“Now, the facts with regard to such one-third interest and its value may bo in short stated as follows: The defendant did offer to sell the same to one Yon Keller for $20,000, but in a day or two afterwards withdrew the offer, and refused to consummate it. This one-third interest was, in truth, worth about $100,000. Defendant did in the end realize in money $90,000 for the same.
“ When the defendant called in October and paid the $5,000, and obtained the release, Stursberg & Co. had already realized over $400,000 for the goods then sold, and subsequent deliveries increased the total sum realized to $576,981.
“Yet the defendant made no statement to the plaintiffs, when he obtained the release, with respect to the value of his interest in such proceeds. I think he was under a positive duty to have done so. An obligation was resting upon him to pay the debt due plaintiff in full, if his means were sufficient for the purpose. Ilis interest in the one-third of the proceeds of the sales already realized, and with what might be reasonably expected to be realized from the residue of the goods, were enough, with other means in his possession, to pay in full all the claims covered by the agreement of March, 1867.
“ The parties were not standing upon an equal footing. Plaintiff was ignorant of the facts, having been informed, in August, by the defendant that, in his estimation, the value of his interest was little or nothing. lie was under a positive duty to correct the former judgment he had given, and to state the facts fully and truly.
“ His concealment of these facts rendered the release he obtained inoperative as a discharge of the plaintiff’s claim. And as the evidence shows that the defendant has the means to pay, the release must be declared void, and the plaintiff entitled to judgment for the amount of the loan unpaid, with interest.”

This opinion seems to me to be a correct exposition of the law applicable to the facts found by the Special Term, and a careful examination of all the evidence satisfies me that the findings of fact made by the learned judge are sustained by evidence, and are substantially correct.

Tlie instrument of March, 1867, by its express terms, leit the defendant- under a moral obligation to refund the money borrowed in February, 1866, in part or in whole, as his means would allow in the future. The moral obligation, thus assumed, was the consideration on which the discharge from legal liability was given. It differed in its nature from that kind of moral obligation which exists when a debt has been discharged by operation of law or by some proceeding in m/oitum, and which, in some cases, has been held to be a sufficient consideration to uphold an express promise to pay; for in this case no future express promise ivas contemplated or required. Tlie fact that the means of the defendant in the future would allow payment of the money in whole or in part, brought the moral obligation into such vigorous operation as to make it a duty to pay, the failure to perform which restored the legal liability. Or, in other words, the instrument was nothing more or less' than an agreement that the legal liability should be suspended until the debtor should be in such condition in the future that a moral obligation to pay would fairly exist, and then his failure to perform the moral obligation was to revive the legal liability. The parties were entirely competent to make such a contract, and it seems very clear that that was what they intended to do, and no forced construction or application of technical rules should prevent a court of equity from carrying out the intent. It is as if the defendant had said to this creditor “You release me now from legal liability, and as soon as my future means become such that I ought conscientiously to pay, I will do so by force of the moral obligation which shall continue in full effect.”

^Representations had been made by the defendant as to the condition of his affairs which may have been believed by him at that time to be true ; and it is clear that the plaintiff’s firm had acted in giving the instrument above mentioned in reliance upon such representations. It was known to the defendant that they so relied. But when he came for the absolute release in October following, his circumstances had materially changed. He had repudiated the sale of his interest in the stock of goods to Yon Keller, and he knew that a sum had already been realized (to wit, $400,000), on the sales then made, and that a large amount remained unsold, which advanced the value of his interest far beyond the sum at which he had before represented it to plaintiff’s firm.

The plaintiff’s firm were ignorant of this change of circumstances, and were acting under such ignorance. The defendant knew, or certainly had reason to know, they were so acting. I think it was his plain duty to have undeceived them by a frank and full disclosure of his altered circumstances and prospects. It is true the plaintiff’s firm might have acted precisely as they did had such disclosure been made, but the court cannot speculate upon that probability because they have not had the opportunity of determining for themselves how they would act with such knowledge. They have acted without knowledge of facts hnown to defendant, and which it was his moral duty to state to them, and for that reason they may repudiate their action. The strict rules that apply between parties contracting at arms length, in which the better knowledge of either party is his own property, have no application to these parties, because the obligation does rest upon a debtor who is seeking to get a discharge from his indebtedness for less than its full amount, on the ground of his inability to pay more, not to induce or permit the action of his creditor by any false representation or material concealment or ignorance of any fact touching his own real condition. The utmost good faith is required on the part of the debtor, and he has no right to permit his creditor to act upon his belief in the correctness of representations previously made to him which have become untrue by reason of changes in the debtor’s own affairs.

It is apparent that the changes which had taken place, and were unknown to the plaintiff in this case, were such as made the defendant then, or would soon, make him fully able to pay the whole of the money borrowed. He should have made the facts known to the plaintiff’s firm, and his-failure to do so prevents his using the release as a defense in this suit.

I am not able, therefore, to concur with my brother, Brady, but am of opinion that the judgment should be affirmed for the reasons set forth in the opinion of Yan Yorst, J., indicated in this memorandum.

Daniels, J., concurred.

Brady, J.

(dissenting):

In February, 1886, tbe defendant, wbo had been for many years a successful' merchant in this city, became embarrassed in bis business, and, impressed with tbe conviction that be could no longer continue in trade, went to see Mr. Adolph Dambmann, one of tbe firm of C. F. Dambmann & Co., and wbo were bis creditors, on tbe subject. He thus relates tbe interview: I saw Mr. Adolph Dambmann, and I told him I was sorry I bad to come to see him, as I could not go on any longer in business. I came to see him and other creditors to see when it would suit them to bold a meeting, and to tell me to whom I should assign my assets, my stock and property and money, for tbe benefit of my creditors. Mr. Dambmann told me I must not do that, tbe loss they would meet would not be any thing, but others would do tbe same wbo bad no need of it; that this bouse would rather give me thirty per cent, as a present, of tbe indebtedness than for me to make an assignment. I hesitated a moment, and told him that would not work; it would take me six months before I could get all tbe creditors to be so liberal as Mr. Dambmann was. I said: “ If you, and other bouses where I have dealt largely, will make me a present of $10,000, I will try to go on, pay it back, or keep it, as I choose, provided I paid my debts in full; but if I don’t succeed to pay my business debts in full, then I make an assignment, and prefer this $10,000, and give tbe balance to my business creditors.”

“ Q. Did you see your other creditors ? A. Tes. Q. Did you make a similar arrangement with them ? A. I stated to them tbe talk I bad with Mr. Dambmann ; that I thought if I could keep from making an assignment, I would try to do tbe most I could. Q. Did you get tbe money from them ? A. I did; they gave me all I asked for.”

Tbe plaintiff’s account of it is not materially different.

Q. Go back to February, 1866, and state what took place between you and Mr. Scliulting at tbe time this money was advanced to him ? A. Mr. Scliulting came into our store and said be could not pay bis debts in full or at maturity ; that lie bad lost money by tbe fall of gold; I thereupon asked him bow much be thought be could pay, be said be thought be could pay seventy cents on a dollar; I told him I thought bis creditors would be willing to advance him tbe balance, thirty cents, rather than to let him fail, and that we would be willing, on our part, to do so; after some days, Schulting came and said that he was willing to take the money that way — for him to return it when he would be able to pay it; but he wanted me to give him a check for $10,000, whereas he owed us only about $20,000 or $22,000; although this $10,000 was more than thirty per cent of our claim against him, we yet gave him the check for $10,000.”

The result ivas, that certain creditors advanced the defendant $100,000, C. F. Dambmann & Co. contributing $10,000; and they all executed a paper, of which the following is a copy:

“We, the undersigned, agree not to demand, transfer or prosecute II. Schulting (except in case of his death or insolvency) for indebtedness to us for money advanced in February last, during this and the succeeding year of 1867.”

The defendant succeeded in paying his debts, and then obtained, from the creditors who had made the advance mentioned, an instrument, of which the following is a copy:

“We, the undersigned creditors, agree, in considei’ation of one dollar paid to us, to discharge H. Schulting from the legal payment of' the money loaned to him in February, 1866, said Schulting giving his moral obligation to refund the said money, in part or whole, as his means will allow in the future.”

This paper was executed in March, 1867. The defendant continued in business until about the 4th August, 1868, when, as he alleges, on account of failing health, he was obliged to give up, and on that day sold his entire stock of goods to the firm of II. & A. Stursberg & Co. for the sum of $225,000, they agreeing to pay all his debts, with a further agreement that one-third of whatever the goods brought over $225,000 should belong to him, or to his wife. The goods thus bartered were sold by II. & A. Stursberg & Co., assisted, it is claimed, by the defendant, for the sum of $576,981, although the sales were not all made until the latter part of the year 1868. In the early part of August, 1868, the plaintiff called on the defendant in regard to the affairs which he had “ heard outside,” and what then took place is thus stated by the witness examined on his own behalf.

“ Q. What did you say to him, and he to you % A. I had a general business conversation with him — asked him how his affairs stood; Mr. Schulting stated to me that ho had sold his property to Stnrsberg & Co., and, I think, Paine, Berry & Co., for the sum of $225,000, that is, his merchandise, and they were to pay his debts; debts for merchandise purchased, which would amount to about $190,000 or $192,000, which would leave him cash from $25,000 to $35,000; that he was also to keep his store, corner of Ann and William streets, valued at about $35,000, and his accounts which didn’t amount to more than about $10,000; that property was tc remain with Schulting, and they were to pay $225,000 for the stock of goods only, and pay all his business debts, that is, his debts for merchandise; then he said, as for that one-third interest in the sum which the goods would realize over $225,000 that was worthless; it was little or nothing; in fact, he had offered to sell it the other day for $18,000 or $20,000. Q. Did he say any thing further on that point than that he had offered it for $20,000 ? A. lie said notliing more on that subject. Q. About what time did this conversation take place? A. The early part of August, 1868 ; it was after the sale to 'Stnrsberg had been made, and before the goods had been delivered, and which took place in his own store.” In October following the defendant went to the plaintiff’s store, and the following is a statement of what occurred, as given by the plaintiff: “ Q. When he came to get this release state what was said ? A. About the beginning of October, 1868, Mi’. Schulting came into our store and said that he understood a previous paper which we had signed at his request was not a legal release, because he hadn’t paid any thing on account of that $10,000, and he wanted to know if I would sign a legal release if lie paid $5,000. Q. Did he say any thing else ? A. No, sir.” It is claimed on these, which are material facts, that the release was fraudulently obtained, because the defendant knew in October, 1S68, that the third interest in the surplus was worth much more than $20,000, and suppressed or did not disclose the fact, and that not having done so, his statement, in August, must bo carried forward by relation, and regarded as a statement repeated in October, 1868. And if this be not so, that he must be held to have improperly concealed the information he possessed about the value of the third interest,'and was, therefore, guilty of fraud in obtaining the release. The examination of the occurrence in August shows that there was then no application to the plaintiff for a release, and the investigation of the facts shows that what the defendant said of the value of the third interest was true, namely, that he had offered it for sale for $18,000 or $20,000. He did offer to sell it, and made an agreement thereto, for the sum of $20,000, and to one Herman Yon Keller, and after the value of that third was ascertained Yon Keller sought to recover on the agreement, but was defeated, because he had not paid or provided for the consideration mentioned in it.

It seems to be clear from these incidents, that the charge of fraud cannot rest upon the asseverations in August. The statement made was an opinion as to value, and this opinion is fortified and sustained in its honesty by the attempted sale of the interest for the sum agreed upon, and which would doubtless have been consummated, but for the failure of the vendee, Yon Keller, to keep or perform his part of the contract relating to it. It would seem, too, from the evidence, that the unwillingness of the defendant to complete the contract arose from his wife’s objections, and it can be said as entirely true that there is no evidence that the sale made was a sham, or collusive, or stamped with any fraudulent design or intent. This conclusion renders it erroneous to suppose that the statement of August by relation can avail the plaintiff, and his case must rest, therefore, upon the charge of the fraudulent concealment of a material fact. On this subject it is, perhaps, important to consider the relations between the parties in October, when the release was executed. The defendant had paid the debts due to his creditors, and from those who made the advance of $100,000 had obtained by their voluntary gift, the instrument which disclwged • him from the legal payment of the money loaned him, they taking his moral obligation to refund it, in part or in whole, as his. means would allow, in the future. The effect of this agreement between the parties was to release the defendant from any liability which could be enforced in a court of justice, unless there was a promise to pay, which would doubtless revive the legal obligation. He was, when moved by the moral obligation, not to pay, but in the language of the contract, to refund in part or in whole, as his means would allow, and this made him the judge of what his means would justify. In short, it placed him in the position of being the arbiter of his own case, the keeper oi; his own conscience, with this paper in his hand, and it may be said, with the ability to pay the plaintiff all of his previous demand, but under no legal obligation to do it, he went to the plaintiff and asked for a release, as already stated. He was asked no questions, and made no representations — none whatever. The plaintiff signed the paper, as others did. 'Was the defendant bound under the circumstances to make any statement ? The rule of law applicable to such transactions, imposed upon him no such obligation, and to allow the plaintiff to recover would be in violation of it. The plaintiff, by ordinary diligence, could have learned what the goods had sold for. He could have obtained the information either from the defendant or his vendees, or if the defendant had refused to give the figures, or falsely stated them, he would then have either placed the plaintiff on inquiry, or have acted fraudulently, and therefore accomplished nothing by his release. The rule is thus stated by Chancellor Kent : “ As a general rule, each party is bound to communicate to the other his knowledge of the material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation.” This rule, it is said, is too broadly stated to be sustained by the practical .doctrine of the courts. The qualification of the rule is that the party in possession of the facts must be under some special obligation by confidence reposed or otherwise, to communicate them truly and fairly. (2 Kent, 642 [11th ed.]; Bench v. Sheldon, 14 Barb., 72; 1 Story’s Eq. Com., § 207.)

The common law, said the ex-chancellor affords to every one reasonable protection against fraud in dealing, but it does not go the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information. (Id., p. 646.) In lespect to intrinsic circumstances, the rule is, that mere silence as to any thing which the other might by proper diligence have discovered, and which is open to his examination, is not fraudulent, unless a special trust or confidence exist between the parties, or be implied from the' circumstances of the case. (Story on Contracts, § 519.) In settling the law on this subject, it has on the one hand, been the aim of oui courts to repress dishonesty, whilst on the other they have required that before relieving a party from a contract on the ground of fraud, it should be- made to appear that in entering into it, he exercised a due degree of caution vigilcmtibus et non dormientibus sueoiorrunt jura. (Cliitty on Contracts, 588 [8th Am. ed.].) The rule in equity is the same. The true definition then of undue concealment (which amounts to a fraud), in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances, which one party is under some legal or equitable obligation to communicate, and which the other party has a right not merely in foro eonseientice but juris et de jure to know. (I Story Eq. Com., § 207.) The special trust did not exist in this case. There was no existing relation which made it the duty of the defendant to disclose his knowledge of the value of the third interest in October, 1868. The release of all except the moral obligation did not relate to it, for that paper extended to his future acquisitions of all kinds, the future means which he should possess. He was not obliged in foro conseientics to disclose it. Indeed, it is evident that he could not then declare with certainty that it was worth more to him than the sum which he had agreed to accept for it, because his contract was outstanding, and his vendee was at first successful in his efforts to enforce that instrument, although the court of last resort ultimately decided in the defendant’s favor. These are, however, positive elements on the question of fraudulent concealment — the suppressio veri ■which by being fraudulent in character avoids the contract.

The remarks of Chancellor Kent apply to this case. “ From this and other cases it would appear that human laws are not so perfect as the dictates of conscience, and the sphere of morality is more enlarged than the limits of civil jurisdiction.

There are many duties that belong to the class of imperfect obligations which are binding on the conscience, but which human laws do not, and cannot undertake directly to enforce.” (2 Kent, § 39, pp. 490, 491.)

The judgment should be reversed, with costs 'to abide event.

Judgment affirmed.