text:
    WILLIAM H. DANNAT and another, Appellants, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Bom-d of public instruction of city of W&w York — liability of city upon contract of — TVcurrant for payment of claims— when mandmnus granted.

    Tlie city of New York is not liable upon a contract for the erection of a schoolhouse, entered into by the board of public instruction, and no action can be maintained against it thereon.
    Where the board of public instruction wrongfully refuses to draw its warrant for the payment of a claim justly due, the court will, on the application of the party aggrieved, compel the proper officer to draw and deliver such warrant.
    Appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the Circuit.

      John H. Hand and Gerardus O. King, for the appellants.

      D. J. Dean, for the respondent.
   Brady, J.:

The plaintiffs seek to recover from the defendants the amount of a draft upon the board of public instruction, drawn by Alonzo Dutch, who had contracted with the school trustees of the Tenth ward of the city to furnish all the carpenter work and materials necessary to the completion of a new school-house, then about to be erected.

The complaint was dismissed at the Circuit upon the ground that the action could not be maintained against the defendants, inasmuch as they were not liable for the acts of the department of public instruction. The question presented is whether this ruling was correct. When the contract was made with Dutch, what is now known as the board of education was styled the department of public instruction. It was originally known as the board of education. (Laws 1851, p. 735.) In 1871 (Laws, p. 1244), it became a department of public instruction under the general city government, and in 1873 was again reconstructed and its original designation restored. (Laws of 1873, p. 96.) Notwithstanding these changes all the powers originally conferred were preserved. The act of 1871 (supra), provided (article 15), that the department of public instruction should have tire same powers and discharge the same duties, when organized under that section, which were then vested in the board of education; and the act of 1873 (supra), declared that the board of education then created, when organized, should have all the powers and discharge all the duties which were then vested in the department of public instruction. This legislation, which chiefly affected the terms of office of the commissioners, inspectors • and trustees and their mode of selection and the general organization of school system of this city, made no inroad upon the duties and powers of the board of education conferred by the act of 1851 (supra), and they remain substantially the same. These powers and duties are coextensive with the subject to which they relate, and embrace the purchase of sites for schools and of erecting buildings thereon, and the care and control over them after they are erected, and it is provided, that all suits in relation to such property must be brought in the name of the board. The defendants have neither the right to erect schools, nor control over them when completed. They cannot sell the land, though the title is vested in them, until a majority of the ward school officers and the board of education determine that it is no longer to be used as a school-house. The board of education is not, and it has never been, other than a distinctive educational branch of government or separate organization, having by the statute (1851) its own separate funds,'and empowered to draw money in accordance with the provisions of special statutes. (Terry v. The Mayor, 8 Bosw., 508 ; The People ex rel. Kedian v. Neilson, 5 N. Y. S. C. [T. & C.], 367; Statutes 1851, 1871, 1873, supra.) “ They have therefore, said Robertson, J., in Terry r. The Mayor, when writing of the defendants herein,” neither the ordinary rights of enjoyment of owners, while they hold the land and it is used for a school-house, nor can they control or repair any part of it during that time, or even dispose of it so as to get rid of all responsibility.” The board of education has by law the means, and it is their duty to provide for the expenses of their organization, and the fund is raised, and credited to them subject to their draft, in the manner provided by law.

The defendants have no control over the fund except, through their financial officer, to see that the drafts are drawn according to ■ the provisions of the statute. They cannot apply the money, and there is no separate fund in their custody specifically provided to meet claims against the board of education, or growing out of their contracts, over which the board of education have no control. The result is, that the defendants cannot be called upon, by action against them originally, to respond for the omissions of the board of education, or for the violation of the contracts pertaining to their department, or to pay debts justly due upon contracts made by them. The board, for the purposes of the act (1851), possesses the powers and privileges of a corporation, and is, therefore, capable of suing and being sued. So far as the courts have been called upon to express their judgment, it has been generally suggestive of the doctrine, if not to the effect, that the defendants are not liable upon the contracts of the board of education, or those made by any officers existing under the act of 1851 and subsequent acts, which they have the power to make. This view of the subject is based upon the proposition that the board has a distinct, separate and independent organization, invested with extraordinary powers and duties, exclusively conferred upon it and the officers connected with the system of which it forms a part, and with which the defendants cannot interfere, and over which they have no supervisory power or control — possessing a separate corporate existence, with power to dictate the amount of money required to discharge its duties and obligations, and the exclusive right to appropriate it in the performance of their proper, and therefore legal, functions (see Terry v. The Mayor, supra; Gildersleeve v. The Bd. of Education, 17 Abb. Pr., 201; Miller v. The Mayor, 3 Hun, 35; Ham v. The Mayor, 37 N. Y. Supr. Ct., 467; Maximilian v. The Mayor, 4 N. Y. S. C. [T. & C.], 491; 2 Hun, 263; Green v. The Mayor, Com. PI.); and upon the further proposition that the department is in reality managed and controlled by a board of officers created by statute, with specific powers and duties, to perform a public service, not peculiarly local or corporate, but as part of a general system, and who are independent of the defendants as to their tenure of office and the manner of discharging their duties, a condition which excludes the duty of respondeat superior as applicable to the defendants. (2 Dillon on Mun. Corp., § 772; Ham v. The Mayor, supra; Bank of Commonwealth v. The Mayor, 43 N. Y., 184; Maximilian v. The Mayor, supra; Martin v. The Mayor, 1 Hill, 545; Russell v. The Mayor, 2 Denio, 473, 481; Lorillard v. Monroe, 11 N. Y., 392.) And it does not at all affect the rigor of these propositions, that by the act of 1871 the board of education, under the'title of the department of public instruction, became a part of the general city government, because, under that act, all its powers and duties were retained and declared to be continued. (Maximilian v. The Mayor, suprah) The city of New York, represented by the defendants, ought not to be called upon to manage the controversies of the board of education, and to assume in that way the disposition of subjects with which it has no immediate connection. The duty of guarding the property and rights of the schools, and of all things relating to them, is imposed by statute upon the board of education and the officers connected with and subsidiary to them, and whatever remedies are sought must be enforced against them in the first instance. If the claimant be successful in establishing his demand, and the board of education refuse to pay in the manner provided by law on a proper application therefor, he is not remediless. He can, by mandamus, .compel the performance of that duty, and the defendants can then, through their financial officer, be called upon to pay, out of the funds appropriated for that' purpose, the amount which is declared to be justly due and payable. There is, perhaps, in this procedure, what is called circumlocution, but it is, after all, but one additional step, and not at all formidable at that. The present legal system is designed to prevent circuity of action; but there are instances where separate but allied organizations are better adapted to accomplish the objects in view, and the independent character of the board of education in its relation to the defendants is a happy illustration of the fact. The subject embraced is too important to be involved with any other corporate existence in the details of its organization and management, and the defendants are therefore only allies so far as to hold the title to the property and the funds, in order that the former may be preserved in perpetuity for the people of New York, and the other may not be disbursed without protective ceremonies. The defendants are not called upon by law to pay any claims against the board of education until the voucher provided for by law is given, and that can always be obtained, when it is unjustly withheld, by resort to the courts. The plaintiff presented no such document, and he must fail in this action.

The judgment, for these reasons, should be affirmed, with costs

Davis, P. J., and Daniels, J., concurred in the result.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bradt, J.:

license: Public Domain

text:
    DANIEL DAY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Attendant upon Court of Oyer and, Terminer — who may be summoned, by sheriff.

    The sheriff, in his choice of persons to attend upon the Court of Oyer and Terminer, is not confined to constables and marshals, but may summon any competent and reliable person to act as attendant for the time being.

      People ex rel. Curry v. Green (64 Barb., 493) followed.
    Appeal from a judgment in favor of the plaintiff, entered by direction of the justice presiding at the Circuit.
    This action was brought to recover compensation for services rendered in attending upon the Court of Oyer and Terminer. The attendance of the plaintiff was not denied, but it was claimed that his appointment was void for the reason that he rvas not a marshal or constable, and that only marshals or constables could be summoned under the statute (2 R. S. [Edm. ed.], 300, § 83), which provides, that the sheriff of each county shall “ summon personally so many marshals or constables of his county as he may have been directed to summon by the court or presiding judge thereof, to appear and attend upon the said court during its sitting.”

      Robert H. Stratum, for the respondent.

      D. J. Deem, for the appellant.
   Bradt, J.:

The plaintiff was appointed to attend the Court of Oyer and Terminer, aud under and by virtue of such appointment he attended a large number of days. His appointment is not denied, but it is claimed that he was not a marshal or constable when selected for attendance upon the court named, and cannot recover, therefore, for the services rendered.

The Supreme Court of this district has already passed upon this question, in the case of The People ex rel. Curry v. Green (64 Barb., 504). It is declared therein that the persons summoned by the sheriff for the purposes mentioned, are pro hae vice constables by operation of the statute, and the power conferred on the sheriff to select. It is said by the appellant’s counsel, that this view is based upon a misconception of the ease of The People ex rel. Holley v. Supervisors of Columbia (4 Cowr., 146), and that the error consists in this, namely, that Holly was a constable. The answer to this proposition is that the counsel is mistaken. The return stated, in that case, that Holly was an acting deputy of the sheriff during all the time that he claimed pay as a constable; that he attended as a deputy and not as constable, and did none of the duties appertaining to the office of a constable. The assertion that Holly was a constable is clearly erroneous; he was an acting deputy of the sheriff, a position which is entirely different from that of constable. The court said that it was enough that he was summoned,. and attending ready to perform his duty as constable, if called on. There was no pretense that he was either -constable or marshal. The statute did not mean to confine the sheriff, in his choice of persons to attend the court, to constables or marshals, but to extend it to citizens at large, from whom he might select competent and reliable persons to act as constables or marshals for the time being. This is indicated more particularly by the provision of the statute imposing a fine of five dollars for every day the person selected shall neglect to attend.

The judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


author: Brady, J.:

text:
    FREDERICK B. SWIFT, Appellant, v. JOHN S. PROUTY, Respondent.
    Judgment— when one judgment not set off against another.

    A sued B and recovered judgment. B then sued A, and B employed the same attorney who had appeared for him in the first action to prosecute the second, with the agreement that such attorney should be paid for the services rendered in the first action, and those to be rendered in the second action, out of the recovery in the' second action. In the suit against A, B’s attorney ascertained the amount in which the referee would report in favor of B, and, just before the entry of the judgment on such report, took a parol assignment of the claim against A in full for his services, he agreeing to pay assistant counsel. Held, in the absence of collusion, that A was not entitled, on motion, to have his judgment set off against the judgment recovered against him by B.
    Whether, if an action was brought to set off the judgment it could be maintained, guare.

    Appeal'from an order made on motion at the Special Term setting off a judgment recovered by the defendant against the plaintiff, against one recovered by plaintiff' against the defendant.'

      J. E. Qa/ry and Alvin Burt, for the appellant.

      Da/ois & Lyon, for the respondent.
   Brady, J.:

John S. Prouty recovered a judgment against Frederick B. Swift on the 16th of January, 1868, in the Superior Court of the city of New York for the sum of $3,676. Appeals were taken to the General Term and to the Court of Appeals, and the judgment was affirmed, though with a modification in the latter court. The final judgment was entered on the 27th of March, 1873. Alvin Burt was the attorney for Swift in the action in all the various proceedings had therein, but received no payment for his services except as hereinafter mentioned. After the recovery of the judgment stated, and on or about October, 1868, Swift commenced an action against Prouty for professional services rendered, and on the 10th of November, 1870, a judgment was entered against Prouty for $863.92. Appeals were taken to the General Term of this court, in which the action was brought, and to the Court of Appeals. The judgment was affirmed by both tribunals. After the commencement of the latter, which is this action, Swift, inasmuch as he had paid Burt nothing for his services, agreed with him that he would pay him out of the proceeds of his claim herein. The agreement, as stated by Burt,- is as follows: That it had been agreed between him and Swift, immediately after the commencement of this action, that he should be paid for his services, in the case in the Superior Court, out of the proceeds of the recovery in this action, and that such agreement grew out of one fact among several, namely, that Swift was without means. In consequence of and pursuant to this understanding, Burt gave his attention to both actions, and in this one paid the referee’s fees, retained the counsel associated with him on the trial and argument of the appeals, and assumed generally the burden and responsibility of this litigation. It also appears that after Burt ascertained the amount which would be reported due to Swift by the referee, and before judgment was entered upon the report, he agreed with Swift to take an assignment of the claim in full for his services in both actions; also to pay J. E. Cary, Esq., for his services in assisting at the trial, and to argue the Superior Court case before the Court or Commission of Appeals without extra charge, Swift agreeing however to pay his expenses to and from Albany, in case the Court of Appeals should be sitting there when the appeal was argued. This arrangement was consummated verbally, and it was, as we have seen, in accord with the original agreement by which Burt was to be compensated by payment out of the proceeds of the recovery in this action. The amount reported by the referee was not, it would seem, sufficient to pay the value of the services of Burt. This agreement was prior to the decision of the Court of Appeals rendered in the Superior Court case, and, as already suggested, prior to the judgment herein upon the report of the referee. Upon these facts the defendant, Prouty, sought to set off his judgment against that of Swift, and to accomplish it by motion. He succeeded in the court below. Was the order made, correct, and should it be sustained ? This is the question presented. The attorney is no longer prevented from making an agreement for his compensation with his client, and he may stipulate for a share of the proceeds of the action. The measure of compensation shall be left to agreement, express or implied, of the jiarties. (Code, § 303 ; 1 Wait’s Pr., 245, 246; Rasquin v. Knickerbocker Stage Co., 12 Abb., 324; Rooney v. Second Avenue Railroad Co., 18 N. Y., 368 ; Fitch v. Gardenier, 2 Keyes, 516.) And the arrangement between Swift and Burt was legal and binding. To the extent of his claim the recovery in this action was subject to his lien thus acquired (Marshall v. Meech, 51 N. Y., 143), and no intervening equity or claim of which we are advised could destroy it. His services secured the success of the claim herein, and his rights attached and became absolute as soon as the judgment was entered. (Marshall v. Meech, supra.) They were the cause of establishing the demand which was to be applied to the payment of other services rendered, and the lien thus acquired is within the provision of the Code, supra, and of the adjudged cases in relation to attorney’s liens. (Citations supra see, also, cases collected, 8 Wait’s Pr., 542, 543; Adams v. Fort Plain Bank, 23, How., 45.) The attorney is still to be regarded as the equitable assignee of the judgment to the extent of his claim for services in the action. (Rooney v. Second Avenue Railroad Co., supra Marshall v. Meech, supra.) This result is predicated of the original agreement, but before the judgment was entered in this action, and while the report was still in the hands of the referee, Burt became the assignee of Swift and the owner of the whole claim. The consideration was the discharge of an existing indebtedness, the payment of the referee’s fees, and the further payment of the counsel who assisted at the trial on behalf of Swift. The assignment was not collusive. There is no pretense that it was, and it was valid. (Roberts v. Carter, 38 N. Y., 107.) When the judgment was entered the right of set-off did not exist in favor of Prouty. Swift was not the owner of it. He had no interest in it. The agreement by which Swift was divested of all ownership was made while the claim was undecided, and was absolute unless it exceeded in amount what would be due to Burt for his services in the Superior Court case. There was no such excess. If it were held otherwise, the statute referred to, authorizing agreements to be made between attorney and client, would be nugatory. If the agreement be binding the fund is at once impressed with the lien created, and bears the burden to the end if not released. Burt obtained, by the agreement and assignments, both of the report and the referee, only what he was to receive when his labor was sought and secured. He should not be prevented from enjoying it. It might be necessary to consider whether in any form of procedure the judgments could be set off in a case like this with due reference to the Code, section 303 {supra), but it is unnecessary. The defendant, Prouty, asks to have it done by motion, and the question whether the court should protect the attorney’s lien, when it is presented on such an application, is not open to discussion. The courts have recognized a distinction between an action and a motion for the purpose of setting off judgments. (Martin v. Kanouse, 17 How., 146.) The order appealed from should, for the reasons assigned, be reversed with costs.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs.


text:
    JONAS G. DUDLEY, Respondent, v. JOHN GOULD, Impleaded, etc., Appellant.

      Stock assigned in blank and pledged to secure loan — sale of, by pledgee — not invalid by reason of appointment of receiver!' of property of owner.

    Where a person, in open market, purchases stock, the scrip of which was assigned in blank by the owner and sold under instructions by parties to whom it had been pledged, and so purchases at a price which, under a forced sale, is not unusual though less than the intrinsic value of the article, and there does not exist any collusion, held, that the fact that the owner of the stock, who was unknown to the purchaser, was a judgment debtor over whose property, at the time of the sale, a receiver had been appointed, did not invalidate the sale.

      Appeal from an order made at Special Term, continuing an injunction restraining the defendant John Gould, his servants, etc., from parting with or selling, until the final determination of this action, six shares of the capital stock of the Mutual Benefit Ice . Company. Judgment in favor of Dudley against one Shear, was recovered February 10, 1875, and a receiver was appointed thereunder, April 22, 1875. The stock was sold June 30, 1875, by direction of B. C. Lewis & Son, who had received a blank assignment thereof from Shear, as collateral security for a loan to the defendant Gould.

      Thomas M. North, for the appellant.

      James S. Stearns, for the respondent.
   Brady, J.:

The defendant Shear, who was a judgment debtor, and of whose property a receiver had been appointed at the instance of the plaintiff, owned certain shares of stock which were supposed, at the time of the appointment of a receiver, to be still his property. The defendant Gould, after the appointment of the receiver, purchased them in open market, and in the usual course of the business of buying and selling stock. It is charged by the plaintiff that the sale and purchase were designed in fraud, and that the defendant Gould is not, therefore, a Iona fide holder for value. The only evidence upon which this charge rests is the assumed inadequacy of price. He insists that the price paid was fifty per cent less than the value of the stock, and sustains this position by affidavits. It is questioned, nevertheless, by affidavits on the part of the defendant Gould, which sustain the averment that, on a sale, at once, of the stock, pursuant to orders to that effect, fifty per cent was the best price' that could be obtained. The stock, it also appears, was not dealt in at the board of brokers, and had no market-value; and, according to the views of the defendant Gould, upheld by affidavits, its salable value depended on whether it must be sold at once, or could be held until some one could be found who knew its intrinsic value, had faith in it, and a disposition to buy. The intrinsic value of the stock, it was also said on behalf of the defendant Gould, depended upon the length and heat of the summer season, the competition or combination among rival companies, and many other combinations. These facts and circumstances are referred to only for the purpose of showing that there was a difference between the views of the various persons called upon to estimate the value of the stock. It appears, in reference to the sale, that it was directed by persons to whom it was pledged, and the instructions given to the brokers were imperative to sell it at once. They did not know of the defendant Shear, except what was developed by the fact that the certificates of stock were in his name, and assigned by him in blank. The defendant Gould had never heard of Shear, or of the plaintiff, or of this suit, and made this purchase, as he had made others, for a profit.' His attitude is, therefore, that of a purchaser in the open market, without notice, and at a price which, under a forced sale, is not unusual, though for less than the intrinsic value of the article sold. There is nothing in the evidence to warrant the imputation of collusion, combination or fraudulent irftent, except the inadequacy of price. Whatever there may be of a suspicious character against the defendant Gould, is met and overcome by positive denials of any wrong. It is well settled that mere inadequacy of price does not implicate a vendee’s title. The creditor who seeks to invalidate a sale upon the ground of fraud; must prove facts from which a legitimate inference of fraudulent intent can be drawn. Evidence which justifies a suspicion is not enough, nor is the vendor’s fraudulent intent sufficient. (Jaeger v. Kelley, 52 N. Y., 274.) The plaintiff, in the case cited, paid for the wine purchased less than half its value, but he paid partly in cash and partly in a claim against the vendor, and took immediate possession of the property. There was no evidence that he knew anything of the pecuniary circumstances of the vendor, or that the latter owed any debt other than that due to him, which formed a part of the consideration given for the wine. In this case, as already suggested, the defendant Gould, the purchaser, knew nothing of the defendant Shear, nor did the brokers with whom he dealt; and the circumstances attending the purchase were not such as to demand from him any investigation as to the title, or to put him on an inquiry.

The plaintiff regards the omission of the brokers to reveal the name of the pledgees on the motion, if they knew it, as a suspicious circumstance; but that in no way affects the defendant Gould’s title, however it may impugn the brokers. He bought certificates in the name of Shear, with an assignment in blank, and, in the absence of notice or knowledge to demand inquiry by him, this is his protection. The mere suspicion, if one may be properly indulged against him, is not enough, as we have seen. The order at the Special Term should, therefore, be reversed, with costs.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs.


author: Brady, J. :

text:
    EBENEZER KNIGHT, Respondent, v. TAMAR CUNNINGTON and another, Administrators, etc., Appellants.

      Enfn'ies in books of physician — when books admissible in erñümee.

    In an action, brought by a physician against the personal representatives of a deceased person, to recover for professional services rendered to the deceased, the diary in which he enters his visits is not admissible in evidence, unless he first proves, that the entries were made by him, that he keeps correct books, and that other debtors have settled with him on the strength of the entries therein contained.

      Olan'Jce v. Smith (46 Barb., 30) disapproved.

      Quwre, whether, under section 399 of the Code, a physician can, in such a case, himself prove the correctness of his books, or make any statement in regard to them, as against the representatives of a person deceased.
    The limit of a cross-examination is in the discretion of the court, and a re-cross-examination on the same subject is purely discretionary, and is the subject of exception only when such discretion is abused.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee, in an action brought to recover for services rendered by plaintiff, a physician, in attending defendants’intestate.

      Amos G. Hull, for the appellants.

      E. O. Ripley, for the respondent.
   Brady, J. :

The plaintiff commenced this action to enforce a claim for services rendered, as a physician, to the defendants’ intestate. The

L demand was contested, and the testimony taken by the referee is conflicting in some respects, but, unless some error of law was committed by the referee, the judgment cannot be disturbed. Upon the evidence admitted, there can be no well founded doubt that the visits and examinations for which charges are presented, were made by the plaintiff, and at the request of the intestate, who lingered for some time in a precarious state of health, and wished the attendance of his physician, although his recovery seemed to be impossible, and, doubtless, in the hope that some change in his condition would produce favorable results if his medical attendant were advised of it at once. It does not necessarily make a physician’s bill objectionable, that it contains items of visits after the patient has passed beyond human skill. He may l’elieve when he cannot cure, and if he may not do either by application, prescription or suggestion, his presence may be a source of comfort, or give pleasure to the patient, who alone is to be consulted and cared for. It may be that comparatively large bills are made up in this way, but that is a matter which injuriously affects the estate only. The physician would be the subject of just censure if he refused to attend his patient when requested, upon the ground that he could do him no good. If, therefore, there be satisfactory evidence of visits by the plaintiff to the intestate, and of the stethoscopic examinations made by him, he should be paid for them whatever would be a fair compensation. The first exception which it is well, though it may not be necessary, to examine, arose in this way: The defendants proved, on the cross-examination of Dr. Neal, a payment of ten dollars to the plaintiff at one of his visits, and what was said by the intestate at the time of the payment. Upon a re-cross-examination, the defendants sought again to obtain from the witness a statement of all that was said on that occasion, and it was objected to on several grounds, one of which was that the witness had already been interrogated upon the subject, and the objection was sustained. It is well settled that the limits of a cross-examination are within the sound discretion of the court, and that the re-cross-examination of a witness on the same subject is also purely discretionary, and cannot, therefore, be the subject of exception, unless, indeed, it appear that the discretion was abused. The payment referred to was made on the 23d day of August, 1869, and for the visit upon that day the plaintiff charges, in his bill of items, twenty dollars. The defendants’ counsel offered to show, in connection with the re-cross-examination mentioned, that the deceased said to the plaintiff, at the time stated, “ that makes us square up to the present time,” or words to that effect. This was objected to and excluded, and an exception was taken.

The refusal of the referee to permit a further examination upon the same matter would not subject the judgment to peril, but the offer enlarged the object of the defendants, and it was to show a settlement upon a day named, because, if the.intestate said “that makes us square up to the present time,” or words to that effect, it would tend much to establish the fact that he had paid for all services which had been previously rendered. The referee was acting in a case 'against the estate of deceased man, whose representatives were essaying to protect it against what they believed to be an unjust claim, and they were entitled to avail themselves, nay, it was their duty so to do, of all fair advantages connected with the dealings between the plaintiff and their intestate. In this they were to be assisted by a liberal application of the rules of evidence, and when they offered to show, upon a re-cross-examination, an important fact omitted upon the first cross-examination, the witness being still upon the stand, its rejection was an erroneous exercise of discretion, and should not be sustained unless it is apparent that no injury was occasioned. It’could be shown, doubtless, in this ease, that this ruling could exist without prejudice to the defendants, because it is evident that the whole amount of payments which .they claim to have been made, were allowed by the referee on account of the services rendered ; and it may be said further, that, assuming the plaintiff to have been paid up to the twenty-third of August, in full, a deduction could be made of any sum recovered for services anterior to that day, and the judgment affirmed for the balance. The bill of items would enable this court to determine this question, and thus modify the judgment. It will not be necessary, however, to do it on the view entertained of this appeal.

The next exception which it is deemed necessary to consider arises as follows: It appears that the plaintiff kept an original book of entries of his visits, called a physician’s diary, which was offered in evidence for the purpose of showing the number of visits which he had made to the intestate. It was objected to, but it was nevertheless received, and the defendants duly excepted. The plaintiff insists that the book was properly admitted, and particularly upon the decision in the case of Clarke v. Smith (46 Barb., 30), in which Justice Ingraham said : “After a physician has proved employment professionally, the entries in his book of the visits have always been received to show the number of visits. It is evidence of nothing else, and for this purpose it has not been considered necessary, as in other cases where books are admitted in evidence, to prove that he keeps correct books, or that others have settled by them.” This case seems to stand alone. No other case was cited, and none has been found declarative of a similar doctrine. In two cases (Foster v. Coleman, 1 E. D. Smith, 85, and Larue v. Rowland, 7 Barb., 108), the accounts of a physician were proved, and evidence given to show not only that he kept them correctly, but that others settled with him by them, thus bringing them within the case of Vosburgh v. Thayer (12 Johns., 461). In Foster v. Goleman the point was taken that the rule only applied to traders and merchants, but the court held it applicable to all persons dealing, the one with another. The account of a physician is generally a detailed statement of the visits he has made, and nothing more. When, therefore, proof is made of the number, it remains only to show what would be a fair compensation for each; and the account, or diary, therefore, if accepted, establishes, by its authenticity, the most important element; indeed, the very basis of the claim. The rule declared in Vosburgh v. Thayer was established in this State before the parties were allowed to testify in their own behalf; and when, therefore, the defendant could not be heard personally, in answer to the case which the book of visits or the account made against him. The cases of Foster v. Golemcm and La/rue v. Lowland {supra) were decided in 1849, 1850. The right of a party, absolutely, to testify in his own behalf was secured by the amendment to the Code passed in 1857.

The defendant prior to that amendment was, it is true, in a ease where the account or a book was admitted against him, precisely in the same position as the defendants are here. He could not be heard personally in answer, as suggested, and the intestate is not here to speak on his own behalf. Nevertheless, the rules of evidence surrounded him with all the safeguards which were deemed essential to his protection, and required the proof of several important matters before the books or account could be admitted as evidence against him. In Clarhe v. Smith {supra) the plaintiff was examined on his own behalf, although the action was against the executors of the debtor, and testified that he attended the deceased, and kept books, which were admitted, in which he entered his visits. This evidence was objected to, but received nevertheless. It was held, as we have already seen, by this court, in banc, that the books were properly received in evidence to establish the number of visits; and it would seem from the opinion rendered, that as to the number of visits the plaintiff’s evidence was also correctly admitted. The judgment was reversed, however, because the plaintiff was called to testify as to what took place between him and the deceased in regard to what she had said as to his claims against her, and as to her having his bill and paying him money. "What was said about the books may, therefore, be regarded as obiter. It certainly was not necessary to the decision of the appeal.

The right of the parties to testify on their own behalf, existed ‘ when that case was tried. The question presented on these facts and events is, whether a physician possesses any greater privileges than any merchant, trader, or mechanic. The value of original entries as evidence rests upon the doctrine of necessity; but the exigency is not more pressing in the case of a physician than of other persons who keep no clerk and who have to rely upon the honesty of their books for success in a court of justice, after proof preliminary which makes them evidence. No reason presents itself for the exception in favor of the physician. The rule which admits the books or accounts is broad enough as it stands, and there is no apparent tendency to enlarge its application exhibited by our courts. At very best it is but presumptive evidence, and that too of the lowest grade.” (Per Harris, J., in Larue v. Rowland, supra.)

The plaintiff did not comply with the requirements of Vosburgh v. Thayer; he did not prove that he kept no clerk, or that his books were accepted by any patient, or that he kept honest books of account, in any other way than by his own statement, which was only a reiteration of the faithfulness of the book itself. The book contains his statements. Prior to the Code this could not be done, as we have seen; and the law, which allows the testimony of the parties, has not changed the rule when one of them is dead. The survivor cannot testify as to any communication or transaction with the other. (Code, § 399.) Where, therefore, a plaintiff desires to establish his case 'against a deceased debtor, by resort to his books, he is controlled by the law which existed prior to the Code, and must conform to it. He must establish his employment, if his claim be for services rendered, by competent evidence, and then by proof that he keeps correct books of account and that his debtors have settled with him, finding them to be correct, he may be enabled to put them in evidence. This the plaintiff did not do. Por these reasons it is considered that the plaintiff’s book was improperly received in evidence. It may be said, also,.that the plaintiff’s right to prove the correctness of his boobs himself, or to make any statement with regard to them against a deceased person, is extremely doubtful, even in connection with the case of Vosburgh v. Thayer and the provisions of the Code. The book, certainly, relates to a communication or transaction with the deceased, and is, as already suggested, the very foundation on which his claim rests. When, however, he proves aliunde that he keeps a correct account in the manner suggested in Vosburgh v. Thayer, it becomes, by virtue of the rule declared in that case, the equivalent of independent testimony, a tribute which the law, pays it on account of an apparent necessity and the honesty of its character. It has not become necessary, however, to examine this question, inasmuch as the defendant did not object to the evidence, because it was prohibited by section 399 of the Code.

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

Davis, P. J., and Daniels, J., concurred.

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


author: Daniels, J.:, Beady, J.:

text:
    GEORGE TALLCOT, Respondent, v. CHARLES C. MOORE, Appellant.

      Trade mande — when injunction granted to restrain use of.

    Courts of equity will interfere to prevent one person from imposing upon or deceiving- tlie customers of another by means of simulated labels, marks, indicia or advertisements, but it must be shown that the devices adopted are such as would ordinarily lead persons dealing in the articles to suppose them to be the same.
    Appeal from an order of the Special Term, denying a motion to vacate an injunction.

      Erel/mg H. Smith, for the appellant.

      A. G. W. Garter, for the respondent..
   Daniels, J.:,

It was shown by the complaint and' affidavits used upon the motion, that the plaintiff had, for upwards of eight years, been engaged in compounding and selling pills under the name of “ Magic Cure,” for the treatment and cure of malarial diseases. The subject of diseases in general, and of malarial diseases in particular, with a description'of the effects expected to be secured by the use of the Magic Cure,” was treated of in a small pamphlet, with red cover, called “ The Little Red Book. New Series, 1875,” In the center of the first side of the cover is the figure of a woman in the act of writing on a scroll, with the words “ The Magic ” already completed, and having a child seated near her feet. The pamphlet also contains a large number of commendatory letters, and further references are made to persons named, residing in different States. The defendant was at one time employed by the plaintiff in this business of manufacturing and selling the “ Magic Cure.” And after that relation was terminated, he engaged in a similar operation for his own benefit by compounding and selling pills called “ Moore’s Pilules,” for the prevention and cure of malarial diseases. And to promote the sale and use of this compound he also pub-listed a book, bound in red paper, called the “ Red and White Book,” with the figures “50, 50,” at the foot of the first and the top of the last pages of the cover. The words “ The ” and “ White,” and the figures, were printed with white letters, while the words “ Red Book ” were printed in red letters. The same general subject was discussed and described in the defendant’s book as that contained in the plaintiff’s, but in a different manner, and at greater detail. His book had no commendatory letters, but a list of references was inserted in it, containing most of the names referred to in the plaintiff’s book. The name of the defendant’s compound, the title of his book advertising it, the appearance of the cover, and the treatment of the subject, are different from the name, appearance, and contents of the plaintiffs, with the exception of the names of persons referred to. And, from a mere casual inspection and examination, it would be at once distinguished from the book of the plaintiff. The red cover, with the words “ Red Book ” contained in the title, and the references made to most of the same persons, indicate a disposition, on the part of the deféndant, to impose upon the plaintiff’s customers. But the attempt could hardly be successful when the book itself shows the article advertised to be of a different name, bearing no resemblance to the plaintiff’s, or the title used by him, and the subject treated in a different manner ; with no substitute whatever upon the cover, or the title page, for the female figure writing upon the scroll, or the child seated at her feet. The points of difference are so prominent and striking, as at once to produce the impression that both the medicines and the books are different productions. And, when that is the case, an action for an injunction cannot be maintained. Courts of equity will interfere for the purpose of preventing one person from imposing upon or deceiving the customers of another, by means of simulated labels, marks, indicia, and advertisements. But, in order to warrant such inteTference, the devices adopted to the prejudice of a preceding business must be such as would ordinarily lead persons dealing in the article to suppose it to be the same. The resemblance, or simulation, must be one from which deception and imposition may result. Where that does not appear to be the case, no necessity can exist for the interposition- of the restraining power of a court, for purchasers may then be presumed to be able to protect themselves. The rule upon this subject is practically the same as that applied for the protection of trade marks, where, in order to maintain an action for an injunction, it must appear that the ordinary mass of purchasers, paying that attention which such persons usually do in buying the article in question, would probably be deceived. The court is not bound to interfere “ where ordinary attention will enable a purchaser to discriminate.” (Partridge v. Menck, 2 Sandf. Ch., 622, 625; affirmed, 2 Barb. Ch., 101.) This principle was applied, and considered! sufficient to justify the refusal of an injunction, applied for by the publisher of a paper called the “ National Advocate,” to restrain the publication of another paper, under the name of the “New York National Advocate,” in Snowden v.Noah, (Hopk. Ch., 317), the difference in the title being considered sufficient to protect the public from imposition. And a similar decision was afterward made where the title of one paper was that of “ New Era,” and of the other, “ Democratic-Republican New Era.” (Bell v. Locke, 8 Paige, 75.) The resemblances and differences were about equal in that to those existing in the present case. And, in regard to them, the chancellor observed that he did not “ think that the defendant’s paper is such a simulation of the complainant’s present publication as to injure the circulation and patronage of the latter, by deceiving the public and inducing a belief that it is in reality the same paper.” (Id., 77.) To render a work, or a medicine, the subject of resteint by injunction, the resemblance to the other must be such as to justify the conclusion that purchasers are in danger of being deceived and imposed upon by means of it. In Perry v. Truefitt (6 Beavan, 66), an injunction was denied until after a trial should be had at law, where the only difference consisted in the change of the party’s name. The complainant’s article was called “ Perry’s Medicated Mexican Balm,” while the defendant sold his as “ Truefit’s Medicated Mexican Balm.” And, in Oamham v. Jones (2 Yes. & Bea., 218), it was held requisite to justify an injunction that the medicine should be represented to be that of the same person, and the trade and production the same. And the doctrine of Hogg v. Kirby (8 Ves., 215), and Seeley v. Fisher (11 Sim., 581), was substantially the same in effect. (See, also, Dayton v. Wilkes 17 How., 510.) The case made in the plaintiffs favor was not sufficient to entitle him to an injunction under tbe well-settled principles of courts of equity. He may be within tbe protection of tbe act of congress concerning copyrights, but over that subject this court has no jurisdiction. For redress in that respect be must go into tbe federal courts, if be can make a proper case for that purpose. Tbe order appealed from should be reversed, and an order entered vacating tbe injunction. But, as tbe use of tbe plaintiffs.references by tbe defendant is indicative of the existence of a fraudulent design on bis part, it should be without costs on this appeal, or on the motion made before tbe Special Term.

Davis, P. J., concurred.

Beady, J.:

I concur with my brethren in tbe result, but reluctantly. I am not entirely satisfied that the defendant’s adoption of tbe same color for bis pamphlet or circular was conceived in a spirit of fair dealing, although it may have been. It is calculated, at least, to lead to mistakes.

Order reversed, and injunction vacated without costs on this appeal, or on motion made at Special Term.


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

text:
    THE PEOPLE ex rel. THE ACADEMY OF THE SACRED HEART v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK.

      Taxation of lands of educational corporation — 1 B. 8. (5ih ed.), 906, § 5 — exemption from taxation created ly — extent of.

    By the term “lot,” as used in section 5 oí 1 Revised Statutes (oth ed.), 906, exempting from taxation the lots on which buildings therein specified are situated, is meant the whole lot upon which the buildings of the college, academy or other seminary of learning are situated, without reference to its value or size; and when such lot is wholly devoted to the direct use of the schools therein mentioned, either by supporting its buildings, supplying its daily wants, or contributing the means of exercise, recreation and diversion, it is entitled to the exemption thereby created.

      Writ of certiorari to review the right of the relator to the exemption claimed by it from the taxation of its real estate.

      John E. BeveUn and Charles E. Miller, for the relator.

      William Barnes, -for the respondents.
   Daniels, J.:

The ease which was made in the relator’s favor showed that it had been incorporated by an act of the Legislature of this State, passed in July, 1851, as an educational corporation. That it has maintained an academy in the city of New York for the education of young ladies and misses, for a period of over twenty years. That since 1867 it has owned the lands taxed by the respondents, as commissioners of taxes and assessments, and before 1870 erected, and has since used, large, commodious and suitable buildings on such lands for the purposes of, and with the school maintained by it. The lands are situated in the Twelfth ward of the city, and are contained in one parcel. The buildings erected and used cover about five acres of it, and are situated near the centre of the grounds. About eight acres of the land are used as a vegetable garden, for the use of the pupils and teachers of the academy, one acre for a cemetery, and the residue, consisting of about thirty-six acres, has been used for the recreation and walks of the pupils, who number about 850 persons. The relator claimed that the whole of its lands so used, was necessary for the use and sufficiency and applicability ” of its buildings for the purposes of the academy, and that they were used and applied exclusively in that manner, and for those reasons, upon the facts established, they were exempt from taxation. The commissioners overruled the claim made for the entire exemption of the relator’s real estate from taxation, and exempted only seven acres of it, and held that the rest of the land was not, in their opinion, necessary for the use of the academy for educational purposes, and consequently was liable to be taxed. No dispute appears to exist as to the facts, but as they have been regarded as established by the commissioners, the relator was held not to be entitled to have any more of its lands exonerated from taxation, than such as the buildings used by it stood upon, and that which was required for their convenient use and enjoyment. And it lias been urged, in support of the decision made by them, that the statute under which entire exemption has been claimed on the part of the relator, fully sustains them in their conclusions. Whether it does or not is the point primarily presented for the consideration of this court by the return made to the writ. And there can be no doubt, under the authorities, that it is a proper one for judicial determination by means of the writ of certiorari. (People v. Board of Assessors of Brooklyn, 39 N. Y., 81; People v. Board, etc., of Albany, 40 id., 154; People v. County Judge of Ontario, 45 id., 772; People v. Trustees of Ogdensburgh,48 id., 390.) The statutes of this State exempt from taxation every building erected for the use of a college, incorporated academy, or other seminary of learning, and the several lots whereon such buildings are situated, and the furniture belonging to each of them.” (1 R. S. [5th ed.], 906, § 5, sub. 3.) The land owned by the relator including that held liable to be taxed by the commissioners, consists of a large number of lots, as land has been subdivided in the city of New York. And the latter have in fact no buildings whatever upon them. For that reason it has been insisted that they cannot be held to he exempt under the terms of the statute. But the land exempted by the use of the term, lots, as it has been employed in this instance, cannot be restricted to what may be appropriately contained in one or more city lots. The statute is one of general application throughout the State, and the construction required by it is one which can be consistently applied to every incorporated college and school within it. There would be no reason whatever in construing the terna to signify one thing in the city of New York and an entirely different thing in other portions of the State. And that would necessarily be the case if the statute were construed to mean the lots as they might be laid out and designated in the locality where the school existed. Lots are variously known as city, village, town, church and cemetery lots; also, as farm and section lots. But it was not with that signification of the term that it was used in this statute. By the context in which it has been placed, it is apparent that it was not intended to mean a lot of either of the kinds enumerated. But it was designed to include the school lots on which the buildings should be situated. That is clearly within the purpose and intent of the law. For the propriety of the exemption is precisely the same, whether it relates to the buildings themselves and the lots on which they stand, or the grounds required to promote and secure the recreation and health of the pupils of the schools, and those engaged in teaching and guarding them. A well ordered, prosperous school requires the one as much as it does the other. It would be very unwise and indiscreet to allow young persons to be confined in school buildings upon grounds affording no reasonable opportunity for exercise and diversion. And yet that might be the effect resulting from the construction of the statute adopted by the respondents. Institutions of that nature, restrained in that manner, would soon require much more than the exemption of their buildings and the lots supporting them from taxation, to prevent a final departure of their prosperity. Education, without enduring health, is acquired at too great a sacrifice . to render it of much value to its recipient. And none knew that better than the capable and competent men engaged in the revision and enactment of the Revised Statutes. It could not have been their intention to contribute, even by a limited liability to taxation, to the promotion of any thing like an inconveniently contracted system for the educational institutions then existing, or afterward expected to exist in the State. The advantages to be derived from them, in the encouragement of the means of education, were evidently deemed to be more than an equivalent to the State for the loss that might result from the relinquishment of the right of taxation over the property owned by them and directly devoted to that end. And the generous policy adopted by the statute for the encouragement of the higher class of schools, could not reasonably be satisfied by any different construction of it. What must have been designed was, to exempt from taxation the entire school lots upon which the buildings should be erected, so far as they were employed and devoted in their use directly to the promotion of the objects intended to be secured by the educational institution owning them. It was the lots of the college, academy, or other seminary of learning, on which its building stood, that the statute referred to when it used the term lots in the subdivision describing the subject of the exemption, as distinguished from lots of other descriptions. And that too without reference to the question of their value, If they are wholly devoted to the direct use of the schools mentioned in the law, whether by supporting its buildings, supplying its daily wants, or contributing the means of exercise, recreation and diversion, that must be sufficient, under the generous policy of this State, adopted for the prosperity and success of its schools of learning, to exempt the property from taxation. By the preceding statute a still more liberal policy was maintained. For no real estate could be taxed under it belonging to any college or incorporated academy, or on which its buildings should be situated (chap. 390, § 1, Laws of 1828), while under the present law, only its lots on which the buildings have been erected are declared to be exempt. Lands owned elsewhere in detached parcels would now be probably liable to taxation under the change which was made by the revision. But, with that qualification, no reason exists for ■ supposing that any further change was intended to be made.

The proofs submitted to the respondents, on the relator’s application to be relieved, very clearly showed this to have been the construction adopted under the law in the taxation of property owned by incorporated schools. And it is well understood to have been the approved and common practice through the State. The lots on which the buildings stand, although for the most part, used for recreation and exercise, have not been deemed by the authorities proper subjects of taxation under the laws of the State. That was the view which was maintained concerning the present statute by the late chancellor and Azariah C. Flagg, who investigated the subject as a committee, at the instance of the trustees of Union College. Their conclusion was, that the revisers used language which will now exempt all which is in any way connected with, or attached to, the college establishment, or used therewith.” And, pursuant to that understanding, the college has enjoyed its 130 acres exempt from taxation. Madison University has been secured the same immunity to the extent of léO acres; Vassar College for 210 acres, and Cornell University for even more than that. This has been the practical construction of the statute upon this subject for over forty years. Its history is a part of the public information of the times ; and, for that, reason, it may be noticed by the courts, even without proof. And it is potent evidence of the construction which the statute should be held to bear. It reflects the judgment of officials required to act under it, and of the public acquiescence in their conclusions.

If room had been deemed to exist for serious doubts, the point would have been, long before this, before the courts for decision. The fact that it has not been, shows the general concurrence which has followed and tacitly approved of local and general action. In Easton v. Pickersgill (55 N. Y., 310), it was held by Judge Folger, with the concurrence of the other judges, except Judge Rapallo, who voted neither way, that general usage, long continued and unquestioned, “ has great force; and the practical construction of the law by so many public officers, though not given upon adverse litigation, has still much of the weight of judicial decision.” (Id., 315.) The property claimed by the relator to be exempt from taxation, was all shown to be a portion of the lots or parcel of ground on which its school buildings are situated. What they do not occupy has been devoted to the promotion of the convenience of the occupants of the buildings, supplying their wants, and affording them the means of recreation, health, and exercise. And the proofs submitted justify the conclusion that it is all needed for those purposes. It is true the property has now become of great value, but the statute has imposed no restriction by way of valuation beyond which the exemption may not be extended. That has been rendered dependent upon other considerations combining in support of the relator’s application. By a just construction of the law of the State, that exemption should have been conceded. The decision by which that was refused should, without considering the other point discussed, relating wholly to what might be the proper valuation of the property, be reversed, and an order entered directing the commissioners to exclude the real estate affected by these proceedings from their assessment lists, but, under the circumstances, it should be without cost.

Davis, P. J.

I concur with my Brother Daniels. I think it clearly sufficient, to bring the property of the relator within the exemption of the statute, to show that it is wholly devoted to the educational purposes for which the buildings of the relator were erected upon it. The school of the relator, with its instructors, pupils, and ueeessary servants, is shown to comprise about 1,000 persons. If the respondents were vested with any discretion as to the quantity of lands which such a school may occupy, for purposes of instruction, exercise, recreation, and all other appropriate uses, I think the discretion was not properly exercised in this case, considering the importance of combining education and exercise with such seclusion as is appropriate to so large a number of female pupils in the heart of a great city.

Brady, J.:

Upon the argument of this case I was impressed with the conviction that the commissioners had erred, subsequent reflection and the combined opinion of my brethren have confirmed that view. The rule declared by them seems to be in entire harmony with the general system prevailing throughout this State; and they have so fully presented the case that I deem it unnecessary to add any thing to what they have said.

Ordered in accordance with opinion of Daniels, J.


author: Daniels, J.: Beady, J.: Davis, P. J.

text:
    ALEXANDER J. HOWELL, Respondent, v. HENRY K. VAN SICLEN and another, Executors, etc., Appellants.

      Code, § 399 — incompetent evidence — new trial, when granted because of.

    In an action brought by the payee of a promissory note made by the defendants’ testator, payment was pleaded as a defense. Upon the trial plaintiff having produced the note and proved its execution was asked, and, against the objections and exceptions of the defendants, allowed to answer the question, “Has it ever been paid?” No evidence of payment was given by the defendants. Held, that it was error, under section 399 of the Code, to allow, the plaintiff to answer this question, and that the judgment should be reversed. (Davis, F. J., dissenting.)
    Where a defendant may have been induced, by the admission of improper evidence, not to offer such evidence as he had to offer in defense, a new trial will be granted, notwithstanding the fact that the evidence given, after rejecting that found to be incompetent, is sufficient to sustain the judgment below.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a refer.ee.

      Geo. W. Van Siclen, for the appellants.

      J5. Z Spink, for the respondent,
   Daniels, J.:

This action was brought to recover the amount of a promissory note, made by John S. Howell, the defendants’ testator, payable to the plaintiff or order. The signature to the note was proved to be in the testator’s handwriting, and no objection was taken to the evidence given for that purpose. It was produced by the plaintiff at the trial, and that circumstance added to the form of the note itself, sufficiently established the plaintiff’s right to it to entitle him to recover upon it. Possession alone was presumptive evidence that he owned the note; and as it was made by the testator and had become due when the suit was commenced, the case upon his part was fully made out. (Bedell v. Carll, 33 N. Y., 581.) Nothing further was required, or lawfully could be in that state of the case, upon his part. But the plaintiff was asked, as a witness on his own behalf, whether he owned and held the note ; which was objected to, as asking him to determine a question of law, and because he was incompetent to testify to any transaction between himself and the testator. The objections were overruled and the defendants excepted. The witness then answered that he was. Then he was asked whether it had ever been paid, and the same objections were repeated, which the referee overruled. To this decision the defendants again excepted, and the witness answered that it had not. The possession of the note by the plaintiff was presumptive evidence that it had not been paid; and he might very well have rested his case upon that circumstance, with the other proof that had been given in his favor. But he was unwilling to do that, and for that reason undertook to disprove payment of the note by the testator in his lifetime, which was one of the defenses alleged in the answer, and that too before any evidence on the subject had been given by the defendants. The referee allowed him to do it by his own statement as a witness in the case; which, as the action was against the executors of the other party, was not proper under section 399 of the Code. (Dyer v. Dyer, 48 Barb., 190; Clarke v. Smith, 46 id., 30; Strong v. Dean, 55 id., 337; Barrett v. Carter, 3 Lans., 68.) The only effect that this evidence could possibly have, under the issue, was to show that the testator, in his lifetime, had not paid the note ; which, if true, proved that no such transaction, as was alleged in the answer, had transpired. And as to that the plaintiff was not competent to give evidence. After it was allowed to be given the defendants may very well have considered it injudicious to endeavor to make proof of their defense of payment. They may have been able to produce sufficient evidence for that purpose alone, which would not at the same time also overcome the effect of the statement ■ improperly allowed to be made upon the same subject by the plaintiff as a witness in his own behalf. It cannot be held because it did not appear that they had no such proof to offer, although that may be the fact. They had a right to stand upon their exception, as long as it was well taken, for the purpose of having this illegal evidence excluded from the case, before they undertook to establish their defense. They were entitled to be relieved from the effect of that evidence, before they finally tried the fact of payment, in order that their own proof might not be impaired by its presence in the ease.

The other exception cannot be sustained, for the plaintiff was competent to prove that he was the holder of the note. The question, as far as that, inquired only for a fact which was within the knowledge of the witness; and the referee rightly overruled .the objections which were taken to that, as well as the other portion of the question propounded to the witness. But, upon the other point considered, the judgment should be reversed and a new trial ordered, with costs to the defendants, to abide the event.

Beady, J.:

The plaintiff is the payee of a promissory note made by the defendants’ testator, John A. Howell. A defense of payment was set up. The plaintiff became a witness on the trial, and was asked, Are you the owner and holder of the note ? ” “ Has it ever been paid ? ” and he was permitted to answer both questions against the objections and exceptions of the defendants. This evidence was not necessary for the success of his case. By proving payment he was anticipating the defendants’ case, which might not have been made out, and adding to the strength of the presumption of non-payment from the possession'of the note itself, his own affirmative declaration that it had not, in fact, been paid. When the defendants were to begin their defense, in consequence of this additional evidence they bad not only to overcome the presumption, but tbe fact, and were thus subjected to greater peril. The allegation of payment might be established satisfactorily by facts and circumstances sufficient in themselves to warrant the conclusion to which they led, but not to destroy affirmative evidence like that given by the plaintiff. Was the question within the prohibition of the Code, section 399 ? It sought evidence of a transaction or communication between the plaintiff and the testator, and the most important transaction which they could have had in reference to the note, namely, its payment. The effect was to declare the existence of a contract made by the testator to pay, because if the note was not paid it was a subsisting liability. It will not do to answer that it was unnecessary to the plaintiff’s case to make this proof, and that he could, therefore, succeed without it. It strengthened the plaintiff’s case in face of the issues to be tried, and tended to prove what the plaintiff’s case and the transaction really was. The word transaction means the act of transacting or conducting any business negotiation; management; that which is transacted; a proceeding; an affair; and, according to the civil law (Bouvier), the settlement of a suit or matter in controversy by the litigating of parties between themselves without referring it to arbitration.” The payment of a note is a settlement, a proceeding, an affair between the maker and payee of a note, and, as already suggested in reference thereto, a very important transaction. I have no doubt that the question is within the prohibition referred to, and agree, therefore, with DaNiels, J., that the judgment should be reversed. The testator was the person, and the only person, it may well be presumed, who could have met the positive affirmation of the plaintiff, that the note was not paid, and the legislature did not intend that the estate of a deceased person should be placed in jeopardy by such a proceeding.

Davis, P. J.

(dissenting):

This action is upon a promissory note made by the defendant’s testator, payable to plaintiff or order. On the trial the plaintiff produced the note and proved that the signature was in the testator’s handwriting; the note was read in evidence. This established on his behalf a clear right to recover. The plaintiff was called as a witness on bis own behalf, and was asked the question : “Are you the owner and holder of this note ? ” The defendant objected to the question on two grounds: First. That it is a question of law and calls for the decision of a question of law.” And, second. “ That the paper, in its form, shows a transaction between witness and deceased.” These objections were overruled, and defendant excepted. The plaintiff answered: “ I am.” He was then asked the following question: “ Has it ever been paid ? ” To this question the same objections were made. The referee overruled the objections, and defendant excepted. The plaintiff answered: “No.” The plaintiff rested; and no evidence on the questions of payment, or the ownership of the note, was given on the part of the defendant, and the referee rendered judgment for the plaintiff for the amount of the note. The only question in the case is, whether it was a fatal error to allow the plaintiff to answer the questions above stated. In my opinion, it was not, for several reasons: First. The note was produced by the plaintiff and fully proved and read in evidence. This made a complete and perfect case on his behalf. The defendant had pleaded payment, but no evidence on that question tending to establish his plea was given or offered. The plaintiff’s counsel, probably in anticipation that such evidence might be given, examined the plaintiff as to non-payment of the note. Assuming that the evidence on this question was incompetent and improperly received, it is altogether immaterial in the case presented to us. The plaintiff fully established his right to recover on the note, and if the evidence objected to be wholly stricken out of the case that right remains perfect. The defendant can not legally be said to have been injured by this evidence, because he made no proof whatever tending to establish the defense of payment. In such a case the court is not called upon to reverse the judgment, because the plaintiff, after fully making out his case by competent evidence, superadded some unnecessary and incompetent testimony on a subject which the defendant did not at all controvert on the trial. Second. The plaintiff was not incompetent to testify that he was, at the time of the trial, the owner and holder of the note. That fact did not necessarily involve a transaction between himself and the deceased. The question was in the present tense, and called only for the condition of things at that time. Neither of the objections to that question was, therefore, well taken. To the question, Has it ever been paid ?” the objections were not, in my judgment, sufficient in form to raise the point insisted upon. The defendant stands on this appeal on the sheerest technicality. He may, therefore, be properly met by like technicality. His first objection, that it is a question of law and calls for the decision of a question of law,” is of no force. His second objection, “ that the paper, in its form, shows a transaction between witness and deceased,” though intended to raise the point that payment would be a personal transaction between witness and deceased, within section 399 of the Code, very plainly does not; and the court is not bound, for the purpose of overturning a judgment because the plaintiff gave cumulative and unnecessary evidence, to give any other construction to the objection than that which belongs to its exact language. The plaintiff was entirely competent to prove that the note had not been paid since the testator’s death, or to give evidence that it had not been paid by any transaction between himself and any person other than the testator, because section 399 only excludes personal transactions between them. It was, therefore, incumbent on the defendant to have pointed his objection to any evidence tending to show non-payment by the testator, in his lifetime, directly by himself, or in any transaction which would be deemed personal within section 399 of the Code. It would be error, doubtless, to allow the plaintiff to give evidence that the testator had not paid the note by any personal transaction in his lifetime ; but as the question covers the whole period before and since the testator’s death, and the objection covers the same period, and as the question also covers transactions not personal with the deceased, and the objection embraces the same, it was, in strictness, no error to overrule the objection. Since the defendant did not give any evidence tending to prove payment, we can not assume that he had evidence which he could have given, but which he was prevented from giving because of the admission of the plaintiff’s evidence. The case is one in which the defendant had pleaded payment, but on the trial abandoned that issue by making no efforts whatever to sustain his plea. He now insists, on appeal, that the plaintiff gave more evidence tending to show non-payment than he was obliged to, some of which was illegal; and although enough of competent evidence to recover remains, rejecting the illegal, he insists on a new trial of an issue on which he held the affirmative, and yet gave no evidence. I think if there be any error in this case it is plainly one which caused no injury to the defendant, and falls within the established rule that the admission of incompetent evidence, which does not prejudice the defendant, is not error. (Rowland v. Hegeman, 1 Hun, 491; Bronson v. Tuthill, 3 Keyes, 32; Murray v. Smith, 1 Duer, 412; Crary v. Sprague, 12 Wend., 41 ; Lowery v. Steward, 3 Bosw., 505; Belmont v. Coleman, 1 id., 188; Worrall v. Parmelee, 1 Comst., 519; Ashley v. Marshall, 29 N. Y., 494.) I think the judgment should be affirmed.

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


author: WestbbooK, J.:

text:
    MICHAEL WOLFSTEIN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Larceny — what constitutes. .

    One who receives from, another money to which he knows he is not entitled, and which he knows has been paid to him by mistake, and conceals such over-payment, appropriating the money to his own use, with intent to. cheat and defraud the owner thereof, is guilty of larceny.
    Writ of error to the Court of General Sessions for the city and county of New York, to review the conviction, of the plaintiff in error, of the crime of grand larceny.

      Chernies W. Brool&e, for the plaintiff in error.'

      Benjamin K. Phelps, for the defendants in error.
   WestbbooK, J.:

The plaintiff in error having been convicted in the Court of General Sessions of the city and county of New York during the month of April, 1875, of the'crime of grand larceny, has, by writ of error, brought the proceedings into this court for review.

By the evidence given upon the trial and the verdict of the jury, the following facts were established : The prisoner was the possessm1" of a draft, dated February loth, 1875, drawn payable to his order by one L. Boell, on Heiddbach, Frank & Co. for the sum of seventy-four dollars in gold. It was accepted by the parties upon whom it was drawn, on the 9th day of March, 1875, and made payable on demand at the German American Bank. On the day of its acceptance it was presented by the accused at the bank for payment, and the paying teller, who was unable to read the French language in which it was written, and who read the figures upon the draft as $742, paid to the prisoner that sum of money in gold. The party to whom the money was paid, knowing that he was entitled to receive only seventy-four dollars, took the larger sum ($742) thus paid to him by mistake, and, without disclosing the error, concealed and denied the over-payment, and feloniously appropriated it to his own use.

The case then presents this question: If a party who receives from another money to which he knows he is not entitled, and which he knows has been paid to him by mistake, should conceal such over-payment and appropriate the money to his own use, intending thus to cheat and defraud the owner thereof, would he or not be guilty of the crime of larceny? If it be answered that he would not, can the element needed to make it such, and which is absent, be pointed outf The money, in excess of that which he is entitled to receive, is taken without the owneFsjMü&ent, and that which is thus taken is appropriatecT~to~the"taker’s use with intent, fraudulently, to deprive the owner thereof. These two elements make the crime of theft, and they are both present here.

It will not do to say that the owner parts with the property voluntarily, and therefore there is no unlawful taking. There may be the physical act of the owner handing that which is his to another, but there is absent the intellectual and intelligent assent to the transfer, upon which the consent must necessarily depend. Where money or property is obtained from the owner by another upon some false pretense, for a temporary use only, with the intent to feloniously appropriate it permanently, the taking, though with the owner’s consent, is larceny. Wherein do the cases differ ? In both there is a physical delivery by the owner, and in both the taker knows that it was given for no such purpose as he has in mind, and yet he, unlawfully and wickedly, in both cases, seeks to deprive the owner thereof. If the one case is larceny, the other is also.

So, too, the finder of property, if he knows the owner an^maceals such finding, and appropriates it to his own use, with tHrMtc to deprive the owner thereof, is guilty of larceny. So in this 'fjse, if the prisoner found, on counting the money, that in his possession to which he knew he was not entitled, and which he also knew the owner did not intend to deliver to him, he was bound to return it to the owner, and if he did not, but concealed its possession and sought to deprive the owner thereof, the crime was complete.

From the evidence in this case, and the verdict rendered, we are bound to assume that the mistake was noticed and discovered by the prisoner at some time. If the over-payment was observed in the hank when the money was delivered, and the prisoner took it with the intent to cheat and defraud the owner, the crime was then complete. If, however, the error was not then noticed, but was afterward, and the intent of felonious appropriation was then ? formed and executed, the legal guilt of the prisoner was at that time incurred. As in the case of the finder of the lost article, the original taking may he lawful, but legal accountability as for crime begins when the owner is discovered and the intent formed unlawfully and feloniously to deprive him of the possession thereof.

The questions which the case involves, and the points to be found by the jury before a verdict of guilty could be rendered, were properly stated by the recorder, and the finding was well warranted by the testimony.

The request to charge, made hy the counsel of the prisoner at folio eighty-two, was amended, and as amended was charged. There is no error here. The conviction of the prisoner is therefore affirmed.

Davis, P. J\, and Daítiels, J., concurred.

Conviction affirmed.


author: DANIELS, J.:

text:
    HENRY W. JOHNSON AND others, Respondents, v. THE FIRST NATIONAL BANK OF HOBOKEN, Appellant.

      Q-heclt with fm'ged indorsement — liability of person receiving and, collecting ■ — production of chech on trial.

    A clerk of tlie plaintiffs, having received from certain of their debtors checks payable to their order in payment of the amounts 'due, wrongfully and without authority indorsed on them the names of the plaintiffs and transferred them to other persons, appropriating the proceeds to his own use. Subsequently these checks were deposited with, and in good faith collected by, the defendant, and the proceeds thereof paid over to the depositors. In an action by the plaintiffs to recover the amount so collected, held, that they were entitled to recover. Talbot v. Ba/rilc of Rochester (1 Hill, 295) followed.
    Upon the trial plaintiffs produced a portion, but not all, of the checks received and collected by the defendant. Reid, that as their inability to produce the others arose from the wrongful acts of the defendant, they were entitled to recover the whole amount collected.

      Van Alstyne v. Rational Qonvrrweüxl Bank of Albany (7 Trans. App., 241; 4 Abb. Dec., 449) distinguished.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    The plaintiffs, who were partners, doing business under the firm of Johnson & Higgins, complained that, between. November 13th, 1867, and November 10th, 1870, they were the owners of a series of bank checks, all payable to their order; that the checks were of the value of their face; that they were stolen from them, and their indorsement forged thereon, and that the checks came to the possession of the defendant who collected them from the bank on which they were drawn.
    The answer put in issue the material allegations of the complaint.
    It appeared upon the trial that the plaintiffs were in business as average adjusters; that the checks were paid to and collected by a clerk in their employ, by whom the charges were marked off as paid. He, however, retained the checks, and subsequently they were’ received and collected by the defendant with the indorsement of the plaintiffs forged upon them. The amounts so collected were paid out by the defendant before it had any notice or suspicion that the indorsements were forged.

      Five of tbe checks, upon which the plaintiffs recovered, they obtained from the drawers for the purposes of the trial. As to the others, the defendant specially objected that there could be no recovery, upon the ground that the plaintiffs could not surrender or return them.

      E. L. Fcmcher, for the appellant.

      John E. Parsons, for the respondents.
   DANIELS, J.:

The recovery in this .action was for the amount of money, and interest upon it, which the defendant had collected and received upon checks drawn by persons owing the plaintiffs, payable to their order and delivered to their clerk, who was authorized to receive them in payment of the debts they were intended to pay, but who, without their authority, indorsed their firm name upon them and transferred them to other persons. These checks were received by the defendant in the usual course of its business, some of them near the time of their dates, and others after the intervention of a considerable period of time. The bank paid value for them, without notice that the name of the plaintiff’s firm had been indorsed upon them without their knowledge or authority; and it collected them from the banks, upon which they had been drawn, in ignorance of that fact. No question was made at the trial as to the sufficiency of the evidence given to establish these facts, and it was not claimed to be in any respect defective when the appeal taken was argued. But it was urged that, as the defendant had paid out the proceeds of the checks without notice of the forgery of the plaintiff’s indorsement, it could not be made liable for the money received, upon them. This position, however, cannot be sustained in view of the principle settled by the decision made in the case of Talbot v. Bank of Rochester (1 Hill, 295). It was there held that the defendant was liable to the owner for the proceeds of a certificate of deposit which it had received and collected on the faith of a forged indorsement. And no reference was made to the fact that it did not appear whether the money had been paid over to the depositor or not. The defendant was held liable because it bad received and collected the obligation owned by the plaintiff in the action, and by those acts had become liable to him for the amount realized from it. While the statement of the case does not show how the fact was, it is highly probable that it appeared that the proceeds had been paid over by the defendant; for if they had not, it is difficult to perceive how any question could have been made concerning the liability of the defendant to pay them to the true owner of the paper. The mere fact that the money of the plaintiffs collected by the defendant without right, was afterward paid over to other persons, should not, upon principle, discharge the defendant from liability. That occurred at once, in the present case, as soon as the checks were disposed of and the money was received upon them. The defendant then, in judgment of law, held it for the plaintiffs, who were its lawful owners; and it could not be exonerated from its obligation by paying the amount to others, who had never been authorized to receive it. In making such payment, as well as in ,the conversion of the checks, unindorsed by them, into money, it acted so far in hostility to their rights, as to become liable to them for the loss so occasioned. This is a general principle well settled in the law; and it includes commercial paper, not in a condition to be negotiated, as well as other property. The party receiving and disposing of it, in that condition, without authority, cannot avoid liability by showing that its conduct was governed by good faith (Boyce v. Brockway, 31 N. Y., 490), or that it afterward paid over the proceeds to persons not in fact entitled to receive them. The case of Justh v. Nat. Bank of the Commonwealth (56 N. Y., 478), was relied upon, at the argument, as an authority protecting the defendant against liability. But the checks received there, were in form properly negotiated, so that the title to them vested in the defendant; and it was protected in the payment which it made of their proceeds by that circumstance, inasmuch as it acted in good faith and without notice of the fraud through which the plaintiffs were induced to part with them. In the present case, the defendant acquired no title to either the checks or the money, and could not do so, simply by means of the unauthorized indorsement of the plaintiffs’ clerk. That circumstance distinguishes this from the case cited, and renders that inapplicable as an authority. But five of the checks were produced at the trial, and it was insisted that the recovery, for that reason, must be limited to their amount; the court, however, held otherwise, and allowed the other seven to be included in the verdict. They were all proved by the evidence given, and the plaintiffs’ title appeared to be the same as to all of them, and all had been converted in the same manner by the defendant. No good reason seems to exist, for distinguishing between them as to the defendant’s liability. The reason why they were not produced was, the disposition which the defendant had wrongfully made of them; and it should not be allowed to protect itself from liability by the fact that it had placed the plaintiffs’ checks beyond their reach. The case of Van Alstyne v. National Com. Bank of Albany (7 Trans. Apps., 241 ; 4 Abb. Dec., 449), maintains no such conclusion; the action was upon a di’aft then held by a bank, in another State, to which it had been negotiated by means of a forged indorsement; and it was held that those facts did not excuse the failure to produce it in an action by the owner against the drawer. (See also, Crandall v. Schroeppel, 1 Hun, 557.) There the drawer had done nothing to deprive himself of his right to the paper on making payment, while, in this case, the defendant’s own wrong had placed the checks beyond the control of the plaintiffs; and for that act and the tortious disposition made of the proceeds, it was rightly held to be liable. The position taken, that the money received by the defendant did not belong to the plaintiffs, is in direct conflict with the case of Talbot v. Bank of Rochester (svsprd). They became the owners of the checks as soon as they were received for them by their clerk; and when, without any lawful right, the defendant converted them into money, the proceeds were substituted for them, and subject to the plaintiffs’ demand as their property. The defendant was liable as a wrong-doer; and it was no answer to the plaintiffs’ claim that they might still secure redress in some other way. The Bank may protect itself by resorting to the persons from whom the checks were taken by it; but it cannot justify the wrong done, by the circumstance that the plaintiffs might have secured satisfaction by proceeding against other persons not implicated in it. The remedy, if it exists, would be difficult; and the plaintiffs were not bound to pursue it for the purpose of shielding the defendant from the consequences of its own unauthorized acts. The judgment should be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.