author: By the Court. —Freedman, J.

text:
    GUSTAVUS ISAACS, Plaintiff and Respondent, v. THE NEW YORK PLASTER WORKS, Defendant and Appellant.
    COSTS, JUDGMENT FOR.
    Decision of court of appeals, reversing the judgment, and ordering a new trial, with costs to abide the event, effect of upon the costs.

    The party succeeding upon the first trial, and. again succeeding upon the new trial (or Ms opponent failing to recover in the second trial, enough to carry costs), can include in his Mil of costs as taxable items, the amount adjudged to Mm for costs by the judgment reversed, and the costs and disbursements awarded by the general term, as well as the costs, &c., of the appeal to the court of appeals, and of the second trial.
    In this case the defendant is entitled to the costs of the first trial, &c., by virtue of the provisions of the code regulating costs.

      Decided February 4, 1878.
    Semble, when an appellate court grants a new trial with costs to abide the event, it is the costs of the appeal, and not the costs of the action, that are allowed (Howell v. Van Siclen, 8 Sun, 524; affi’d by court of appeals, June 5, 1877).
    Before Curtis, Oh. J., and Sedo-wick and Freedman, JJ.
    Appeal from order affirming taxation of costs.
    The action was for the recovery of damages for breach of contract, and the issues were tried twice.
    On the first trial, plaintiff’s complaint was dismissed and defendant entered judgment for costs, which was affirmed with costs at general term.
    On plaintiff’s appeal, the court of appeals reversed the judgments, and ordered a new trial, with costs to abide the event, which was made the judgment of this court.
    On the second trial, the jury, upon all the issues, rendered a verdict for plaintiff for six and one-quarter cents, which entitled the defendant to the costs of the action.
    The clerk, in adjusting such costs, disallowed all items prior to the costs of the court of appeals, and, the taxation having been affirmed at special term, defendant appealed.

      Dana & Clarkson, attorneys, and F. E. Dana, of counsel, for appellants, urged :
    —I. The verdict being for nominal damages, entitled defendants to costs, and no application to the court for leave to tax costs or enter judgment by them was necessary (Fuller v. Coude, 47 N. Y. 304; Powers v. Gross, 2 N. Y. Weekly

      Dig. 561; 66 N. Y. 646, court of appeals, affirming S. C., 6 Hun, 234; Lultgor v. Walters, 64 Barb. 417).
    II. As to error of clerk in disallowing items sought to be taxed (Code, §§ 304, 305, 307; Sturges v. Spofford, 58 N. Y. 103; Same v. Same, 3 Hun, 52-57; Howell v. Van Siclen, 8 Id. 524; affirmed in the court of appeals, June 5, 1877; Lumbard v. Syracuse, &c. R. R., 62 N. Y. 290; Bathgate v. Haskins, 63 Id; 261; Koon v. Thurman, 2 Hill, 357; Von Kellar v. Schulting, 45 How. 139; Patten v. Stitt, 2 J. & S. 346; Van Wyck v. Baker, 4 N. Y. W. D. 597; Hamilton v. Butler, 4 Robt. 654; Spring v. Day, 44 How. 390).

      S. A. Seixas, attorney, and of counsel, for respondents.
   By the Court. —Freedman, J.

—The taxation is sought to be upheld under the decision of this court in Cochran v. Gottwald, 42 N. Y. Superior Ct. R. (10 J. & S.) 214; where it was held - that a defendant, on again succeeding upon a new trial, was not entitled to include in his judgment the aggregate amount of the costs and disbursements inserted into the first judgment, because the reversal of the judgment carried with it a reversal of the bill of costs as taxed.

But in the case at bar the defendant presented the items and claimed their allowance as just and proper ones. They must therefore be considered on their merits.

When thus considered it becomes at once apparent that the defendant had a clear right to the following, viz:

Costs before notice of trial, .... $10 00

Costs after notice of trial, . . . . 15 00

Five term fees, from June, 1873, to Dec., 1874, 50 00

These items were not in any sense costs of the first trial, but costs in the cause which the party eventually prevailing was entitled to tax, and as no further claim for any such item or items was made on account of the second trial, their disallowance was erroneous.

The remaining disputed items consist of a trial fee for, and defendant’s disbursements on, the first trial, and the costs and disbursements awarded by the general term. These were all once adjudged to the defendant, but the judgments were reversed by the court of appeals, with costs to abide the event.

In Cochran v. Gottwald (supra), it was said, upon a somewhat similar state of facts, that costs could not be taxed by a party for proceedings that had been vacated for error in his favor, and that the statutory right of a party to costs attaches only to such proceedings as are regular on his part. And indeed it is difficult to perceive upon what principle a party finally prevailing should be allowed, not only the costs necessarily incurred to gain the final victory, but also those which were unnecessarily, and perhaps recklessly, made by him in consequence of proceedings which had to be set aside for error.

But in our judgment the question is no longer open for discussion here. In Howell v. Van Siclen (8 Hun, 524), the general- term of the supreme court differed with this court upon this very question, and the view of that court was sustained by the court of appeals. From the printed papers in that case which were handed up, it appears that the issues were twice tried by a referee, each trial resulting in a judgment for the plaintiff. Upon an appeal from the first judgment, the judgment was reversed and a new trial ordered, with costs to the defendant to abide the event.” Upon the taxation of costs after the second trial, the plaintiff was allowed to tax a trial fee of $30.00, and the referee’s fee of $350.00 for the first trial, and a trial fee oí $30.00, and the referee’s fee of $125.00 for the second trial. The defendant insisted that the reversal of the first judgment- deprived the plaintiff of the right to tax the items relating to the first trial. But the supreme court at general term held :

“ When this court granted a new trial with costs to the defendant to abide the event, it was the costs of the appeal, and not the costs in the action, which were allowed. The plaintiff, having succeeded, was entitled to costs, but the defendant, having reversed the judgment, was allowed costs of the proceeding taken by him for that purpose, provided he succeeded in the action. The plaintiff could not have them in any event, because he did not maintain his judgment. The defendant was not, when the appeal was taken, entitled to costs ; he had not succeeded in the action, and the presumption must be against him, if any be indulged in, where the reversal of the judgment rests upon some error committed upon the trial. He was not the successful party, and still, insisting upon his non-liability for the plaintiff’s claim, he demanded a new trial. He was again unsuccessful, and the plaintiff became, by the operation of the statute, entitled to the costs in the action, except the costs of the appeal. These costs were awarded him, and properly. He was the successful party.”

For these reasons, the taxation as had was upheld, and the court of appeals affirmed this decision on the 5 th of June, 1877. Ho opinion was delivered by the latter court-; but as the affirmance could not well have proceeded upon any other ground than the one upon which the decision was placed below, namely, that the plaintiff had become entitled to the costs of the first trial by operation of the provisions of the code regulating the allowance of costs, we consider ourselves bound by it.

In the case at bar, the position of the parties is reversed. The defendant is the party finally prevailing, and as such he is entitled to tax all the items rejected by the clerk.

The order appealed from should be reversed with costs, the taxation re-opened, and the matter referred back to the clerk, with instructions to insert the rejected item.

Curtis, Ch. J., and Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    MARY A. EGAN, Plaintiff and Respondent, v. EDWARD T. WALSH, KATIE A. WALSH, JAMES T. WALSH, MARY E. WALSH, ALICIA L. DOLAN, and JOHN B. DOLAN, her husband, Defendants and Appellants.
    Receives Pendente lite.
    1. DOWER, ACTION TO HAVE IT SET OFF.

      (a.) Receiver of all the rents and profits, may be appointed.
    1. Partition. Prior decree in, when no objection to appointment of receiver in the dower action.

    Such decree, having been made in 1867 (the dowress being a party defendant), and the sole plaintiff having after decree conveyed all her interest to the only co-defendant of the dowress, such co-defendant being the mother of the defendants in the dower suit (the plaintiff and co-defendant of the dowress in the partition being the sole owner or tenant in common of the fee in the property), and said mother of the defendants in the dower suit, having died in 1872, leaving the defendants in the dower suit her heirs at law, and it not appearing that the partition action had ever been revived, or that the defendants in the dower suit had ever been made parties to the partition suit, or that the commissioners appointed by the decree to make partition, and to set-off one-third to the dowress as and for her dower, had ever acted, presents no objection to the appointment of a receiver in the dower suit.

      Decided February 4, 1878.
    2. Circumstances which will warrant the appointment.

    See case.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from an order appointing a receiver.
    The complaint set forth that James Egan died seized of certain real estate described, consisting of three houses and lots, leaving him surviving, the plaintiff, his widow, and two sisters, Catharine A. Walsh, and Julia Egan, his only heirs-at-law, and next of kin ; that Julia Egan, on March 31, 1868, conveyed all her interest in said real estate to Catharine A. Walsh, who on January 20,1872, died intestate, leaving her surviving, as her only heirs at law, the defendants in the suit (other than John B. Dolan), being her children; that plaintiff’ s dower has never been admeasured or set apart for her use and benefit, nor has any proceeding, either at law or in equity, ever been had or taken by her to have her dower admeasured or set apart; that the defendant, Edward T. Walsh, has been collecting all the rents since January, 1875, and has collected large sums ;. that he has refused to pay to the plaintiff the net one-third thereof, and there is a large sum of money due her by him, as well as the other defendants, on account of such rents; that in March, 1877, defendants, by two mortgages, mortgaged all their interests in and to said houses and lots, and there is great danger, unless the defendants are restrained from collecting and receiving the rents, that plaintiff’s interests will be prejudiced, and she suffer great loss ; that plaintiff has often demanded an account and statement of the rents received by said Edward, yet he, although admitting that he has collected large sums in rents, has refused and neglected to render any such accounts or statements.
    The complaint then prays that her dower in said real estate, and her interest in and to the rents, issues and profits may be set aside for her soíe use and benefit, so that she can collect and receive her one-third part thereof, in her own right; that defendants account for the rents received by them, and pay over to plaintiff such sums as shall be found due her ; that a receiver of the rents be appointed pendente lite, and that defendants be enjoined pendente lite from collecting, demanding, or receiving any of the rents, income, and profits of said real estate.
    Three of the defendants answered, and set up, as a first defense in bar, that, after the death of James Egan, and before the conveyance by Julia of her interest, as alleged in the complaint, Julia, about April, 1866, commenced an action in the supreme court, against Catharine A. Walsh, and her husband, and the plaintiff in this action, for a partition of said real estate, and for the admeasurement and assignment to the plaintiff in this action of her dower therein ; that the summons in that action was duly and personally served on all the defendants therein ; and that such proceedings were duly had in that action that judgment -was recovered therein, dated June 7, 1867, and entered June 25, 1867, by which judgment it was adjudged and determined by the said court that the said plaintiff in this action was entitled for her dower in the said premises mentioned in the complaint herein, as the widow of the said James Egan, deceased, to one undivided third part of the said premises during her natural life, and adjudged the same to her, and further adjudged that three commissioners be, and by said judgment they were appointed to set off and assign to the said plaintiff such one-third, pursuant to the said judgment and decree, to which reference is made for greater certainty; that this action is brought for the same identical cause, as respects the said plaintiff in this action, as the said action in the supreme court.
    That the said judgment in the supreme court still remains of record, wholly unreversed, and in full force and effect.
    The answer further set uj), as a second defense, that this action was brought without leave of the court; that, by reason of the matters alleged in the first defense, it is an action brought upon a judgment, and therefore it cannot be maintained, as being contrary to the provisions of the statutes prohibiting an action upon a judgment, except by permission of the court.
    The answer set up, as a third defense, that since January 1, 1876, the plaintiff had been paid by the defendant $900, on account of her dower interest in said premises.
    Plaintiff moved on the pleadings, and affidavits, supporting the allegations in the complaint as to the collection of rents, the non-rendering of accounts, and the giving of the mortgages by the defendants, and showing that no payments had been made to plaintiff since January, 1875, except $900, and that Edward T. Walsh is a clerk, not in any business on his own account, and outside of his interest as one of the heirs, has no property, and also showing that the mortgages given by defendants amounted to $3,000, for an injunction and receiver.
    Defendants, in opposition to the motion, read the judgment in the supreme court set up in the answer, and an affidavit of Edward T. Walsh, sworn to Nov. HI, 1877.
    This affidavit did not controvert any of the allegations of the plaintiff.
    It stated that the annual rental was, . . $3,068
    Annual expenses for taxes, repairs, insurance,
    and interest on mortgages .... $982

      It also contained the following averments:
    “And this deponent further says, that before the plaintiff is paid any more money at present, it is necessary to take into consideration, and reserve out of the rents for that purpose, the necessary taxes for the current year, namely, §450.50, and the sum of about §270 for arrears of taxes ; that deponent has paid from said rents the interest on the said §6,000 mortgage, which fell due on November 1, inst., being §210.
    “And this deponent further says, that this deponent and the other defendants, who are owners of the said real estate, subject to the plaintiff’s unadmeasured right of dower, are entirely solvent and perfectly good, and responsible for any amount that may be due, or that may become due, to said plaintiff for her right of dower in said premises ; that they own said real estate, subject to said right of dower, and subject to the incumbrances aforesaid; that the said real estate is reasonably and fairly worth the sum of §3.0,000 ; that there has been collected by deponent, since July 31, 1877, of the rents of said premises, the sum of §624, out of which deponent has paid, besides the above mentioned interest, §210, the sum of §258.10, for arrears of taxes, and has to pay the taxes for 1877, namely, §450.50, and the sum of about §270 for arrears of taxes, and has considerable repairs to make to the premises to keep them in tenantable order, and is also subject to divers incidental expenses in relation to the letting, and that the rents collected by him since such date, are not sufficient to pay all such sums.
    “And deponent further says that there is no danger whatever that the plaintiff will lose any of her * rights in said premises. That deponent has experienced great difficulty recently in collecting the rents on account of the fact that the premises are tenement houses, occupied by poor families, many of whom complain of being so deficient in work as not to be able to pay their rent promptly, and some of the tenants having been in arrears to a greater or less amount, some considerable time for their rent, and are paying along in driblets.”
    The court at special term granted the motion, and an order was made appointing a receiver of all the rents and income of the real estate mentioned in the complaint, and enjoining the defendants from collecting or receiving the said rents and income, or any part thereof.
    From this order defendants appeal.

      Nelson Smith & Leavitt, attorneys, and Nelson Smith, of counsel, for appellant, urged :
    —I. The judgment in the supreme court, entered in the suit of Julia Eagan against Catharine Walsh, and the plaintiff in this action, dated May 37, 1867, by which the plaintiff’s right of dower was adjudged and directed to be allotted and assigned to her, is a bar to this action to recover her dower. For this reason, a receiver should not be appointed (See opinion of Judge Jones, in Gregory v. Gregory, 33 Superior Ct. 39; Owen v. Homan, 3 McN. & G. 378).
    II. Under the judgment in the supreme court the plaintiff is entitled to have her dower immediately set off, and to take a proceeding upon the footing of that decree for any accounting in relation to the rentals. This suit is therefore entirely unnecessary, and upon the principle that a. receiver will not be appointed, where a plaintiff has a remedy at law, or any other adequate remedy, this appointment ought not to have been made (Solari v. Leaver, L. R. 9 Eq. 22; Parmley v. Tenth Ward Bank, 3 Edw. Ch. 395).
    III. The plaintiff, since 1867, has acquiesced in the present mode of managing the estate. Such delay and acquiescence, in itself, constitutes a good defense to an application for a receiver. The principle is, that a court of equity, where there has been long delay, will not appoint a receiver (Brown v. Chase, Walker (Mich.) 43; Could v. Tryon, Id. 351; High on Receivers, §14).
    IV. But, independently of these considerations, no case is made on the papers for the appointment of a receiver. (1.) In so far as the plaintiff claims to recover her share of the rents received by the defendants, the suit is in the nature of an action for money had and received by the defendants to the plaintiff’s use, and in that respect discloses no grounds for a receiver, any more than any action for money had and received, or to obtain an account for money had and received. The plaintiff is not entitled to any lien upon the premises for any balance that may be due in respect to the rents collected in the past, in regard to such rents, and would not be entitled to a receiver to enforce the payment of any such balance, any more than in any action to recover money. The order does not appoint the receiver of the moneys collected in the past; it is not shown, in fact that any of those moneys are now in existence, and the plaintiff’s remedy for any such balance is against the personal liability of the defendants. (2.) Before assignment, a widow’s right of dower is merely a right resting in action only, it does not give her any vested interest or right of entry upon the premises (Yates v. Paddock, 10 Wend. 528; Ritchie v. Putnam, 15 Id. 524, and cases there cited).
    V. There is no danger shown. This is a vital point (Willis v. Corliss, 2 Edw. Ch. 281, 287; Verplanck v. Cairns, 1 Johns. Ch. 57, 58; Orphan Asylum v. McCarty, 1 Hopk. 429; Goodyear v. Betts, 7 How. Pr. 187; Gregory v. Gregory, 33 N. Y. Superior Ct. 1-39; High on Receivers, § 11).
    VI. But in addition to this, there is nothing in the moving papers to show that the rents are in danger, or that the plaintiff has not an adequate remedy at law. Says Bowie, Ch. J., in Knighton v. Young (22 Md. 372), in speaking of an application for the appointment of a receiver: “It is not sufficient to allege that the rents are in jeopardy, but it must be shown how they are jeopardized.” (See also Haines v. Carpenter, 1 Woods Circ. Ct. 266; Willis v. Corlies, 3 Edw. Ch. 281; Clark v. Ridgely, 1 Md. Ch. Dec. 1870; Blondheim v. Moore, 11 Md. 365; Burt v. Burt, 41 N. Y. 46; Haggerty v. Pittman, 1 Paige Ch. 298).
    VII. Here the defendants have a two-thirds interest, and the plaintiff only one-third. Notwithstanding this, the order appointing the receiver embraces the entire property. It is, in effect, giving to to the plaintiff, as security for one-third of the income, not only her one-third, but two-thirds that belong to the defendants, in which she has no interest. This, we claim, was manifestly unjust, assuming that the plaintiff had a right to a receiver. There are here three distinct pieces of property, upon which there are five houses. If it were only intended to secure the plaintiff’ s right from the time of the appointment of the re-receiver, it would have been necessary to have extended the receiver only to one-third of the property, or to one of the lots having two houses upon it, instead of to the whole property.

      E. Yenni, attorney, B. F. Sawyer, of counsel, for respondent :
    —I. The complaint of the plaintiff presents a proper case for the appointment of a receiver, in puruance of section 713 of the new code. The plaintiff establishes a positive right to and an interest in the rents, issues and profits of the real estate to which she is entitled as dower right. The property is all in the possession of the adverse parties, the defendants; they use and occupy one of the houses. The defendant, Edward T. Walsh, in January, 1875, was duly appointed by the other defendants and this plaintiff to collect and receive the rents, and to pay over to this plaintiff her one-third part thereof. Since his appointment, up to the present time, he has never accounted or rendered any statement of the amounts of rents and income, nor of the payments, although repeated demands have been made of him so to do. The defendant, Edward T. Walsh, has admitted that there is a large sum due the plaintiff on account of the rents and income so received by him.
    II. The plaintiff also has shown that there is great danger that her rights and interests will be jeopardized unless a receiver is appointed. 1st. The defendants, in March, 1877, mortgaged all their interest in the property. 2nd. The defendant, Edward T. Walsh, has neglected to pay arrears of taxes of 1876, although collecting all the rents. 3rd. The defendants are using and occupying one of the houses without paying any rent or accounting for any rent.
    III. The defendants set up in opposition to the motion a decree made in the supreme court in June, 1867, in an action wherein Julia Egan was plaintiff and Catherine Walsh and this plaintiff and others were- defendants. This decree does not affect the merits of this present suit. 1st. Julia Egan, the plaintiff therein, after the decree, conveyed all her interest in the real estate to Catherine Walsh, the mother of the defendants in this action. 2nd. The said Catherine Walsh died in 1872, leaving the defendants in this action her heirs-at-law. 3rd. That action has never been revived, nor are the defendants in this action parties to the same. 4th. The commissioners appointed by the court have never acted, and the decree has laid dormant for over eleven years. 5th. The complaint in this action is for an accounting of only the rents and income of the real estate since 1875, under an express agreement. 6th. Either party to the decree could have had it executed.
   By the Court.—Freedman, J.

—Upon the whole case, as it was made to appear on the motion below, sufficient grounds appeared to authorize the court, in the exercise of a sound discretion, to appoint a receiver during the pendency of the suit. The action is in a condition to be tried at once, and at the trial the rights of all parties can be more satisfactorily determined than upon the present appeal.

The papers submitted presenting a case within the rule warranting the order as made, the order appealed from should be affirmed, with costs.

Curtis, Ch. J., and Sedgwick, J., concurred.


text:
    HENRI HENNEQUIN and others, Plaintiffs and Appellants, v. FRED BUTTERFIELD and others, impleaded with HENRY CLEWS and others, Defendants and Respondents.
    I. Equity Action.
    1. JURY TRIAL, RIGHT TO, OF CERTAIN ISSUES JOINED IN. (a) Whefe the allegations contained in the complaint make out an action in equity for equitable relief, and certain of the allegations make out as to some of the defendants an action at law for legal relief, the issues of fact joined as to the allegations making out the equitable cause of action are to be tried and disposed of at a special term by the court without a jury; and if the equitable cause of action fails, and so leaves the issues joined on the allegations making out an action at law as to some of the defendants to í>e disposed of, those issues should be tried by a jury.
    1. This although the complaint is as to the legal cause of action in form an action in equity, and the relief prayed in respect thereto is in form equitable relief.

      2. This although upon the trial of the cause as an equity action, the defendants as to whom a cause of action at law is made by certain of the allegations in the complaint, as to which issue is joined, did not demand those issues to he fried hy a jury.

    (5) Application op bule.
    1. In this action, the judge at special term, having upon the proofs dismissed the complaint as to those defendants as to whom the allegation of the complaint made out a cause of action in equity, found as a conclusion of law, that as to the defendants with respect to whom certain of the allegations (upon which issue was joined), made out an action at law, the issues should be tried by jury. Upon the findings, judgment was entered dismissing the complaint as to the first set of defendants, and ordering that the judgment should be without prejudice to the right of plaintiffs to a trial by jury of the issues raised by the latter set of defendants,

      Held,

      Correct.

    H. Pleadings, Evidence under.
    1. BONA FIDES OF HOLDING NEGOTIABLE PAPER OR INSTRUMENTS.
    («) Not necessary to he pleaded to admit evidence of, when.

    1. Where the complaint alleges a fraudulent hypothecation of the instrument by some of the defendants to a copartnership consisting of other of the defendants, for money theretofore loaned by said copartnership to the former defendants, and also alleges that if such copartnership bought the instrument, or advanced thereon any moneys in good faith and without notice of plaintiffs’ ownership, yet it had sufficient other property held by it as collateral security to pay their claims and demands; and prays that the said copartnership deliver the instruments to the plaintiffs with all damages sustained by the conversion thereof, or if they shall have advanced any moneys thereon in good faith and without notice, then that they be allowed the amount thereof; and if they shall hold the securities in good faith, then that they account for the property held by them and received from the former defendants, and after-deducting their claims and demands, pay to plaintiffs the surplus or so much as might be necessary to satisfy plaintiffs’ claims, demands and damages against the former-defendants.

      Decided February 4, 1878.
    HELD

      under denials of the above stated allegations in the complaint, evidence to show the transaction referred to was not with the copartnership, but with one of its members individually, and that he was in foot a bona fide holder for value without notice, was admissible.

    III. Partnerships.
    1. FICTITIOUS NAME.
    (a) Statute against using.

    1. Laws of 1833, ch. 281, must be construed in connection with ch.
    400, Laws of 1854, and ch. 144, Laws of 1863.

      (a) Case not brought within the statute.

      Semble, A. lent the use of his name to a firm composed of B. and C., and the firm thereafter carried on business in the firm name of A. & Co. until 1866, when the business ceased, and the proceeds of the assets thereof belonging to B., passed into the hands of A. for management. A separate account, under the title of “A. & Co. of 1866,” was kept of those proceeds, to distinguish them from the assets of a firm of “A. & Co.” subsequently formed. It seems that a transaction had witliD. under the title of “A. & Co. of 1866,” whereby B.’s money was loaned to D., the check to D. being signed “A. & Co. of 1866,” B. being then deceased, does not fall within the prohibition of the statute, there being no proof that the provisions of the enabling statutes under which the use of a copartnership name may be continued, had not been complied with.
    2. INVOKING BENEFIT OF STATUTE.

      (d) WHAT NECESSARY.
    1. By plaintiff, the action must be based on the statute.
    2. By defendant, the defense must be based on the statute.
    Before Curtis, Ch. J., and Freedman, J.
    The substance of the complaint in this action is; that plaintiffs deposited with Henry Clews & Co. certain securities in trust and for the purpose of securing said Henry Clews & Co., in the event of plaintiffs failing to remit to the firm of Clews, Habicht & Co., of London, the requisite funds to pay certain bills of exchange to the extent of £6,000, which Henry Clews & Co. authorized the plaintiffs to draw on Clews, Habicht & Co., of London, to provide for which Henry Clews & Co., at plaintiffs’ request, opened a credit with the banking-house of Clews, Habicht & Co., of London, for £6,000 ; that plaintiffs took up and paid, or furnished Henry Clews & Co. with the funds wherewith to pay, all the bills of exchange drawn by them on Clews, Habicht & Co., of London, and demanded of Clews & Co., the said securities, which demand was complied with except as to certain bonds, the subject of this action ; that defendants, Henry Clews and Theodore S. Fowler, ° composing the firm of Henry Clews & Co., fraudulently hypothecated with the defendants, composing the firm of Fred Butterfield & Co., the said bonds for money theretofore loaned and advanced by said Fred Butterfield & Co., and said bonds are still in the possession of said Fred. Butterfield & Co. ; that Henry Clews & Co. borrowed from Fred. Butterfield & Co. about half a million of dollars, and hypothecated with them, as security therefor, property of the value of about a million of dollars ; that if said Butterfield & Co. either bought said bonds or advanced any money thereon in good faith, and without notice of their belonging to plaintiffs, yet they have sufficient other property in their hands from which they will realize enough to pay their own claims and demands against Henry Clews & Co., without having recourse to said bonds ; that Frederick S. Taylor, as assignee of Henry Clews and Theodore S. Fowler, claim some interest in said bonds. The prayer of the complaint was as follows:
    “ 1st. That the defendants, Henry Clews & Co. and Fred. Butterfield & Co., deliver to these plaintiffs the said twenty-nine first mortgage bonds of $1,000 each, of the Toledo, Peoria and Warsaw Railroad Company, Eastern Division, with the interest received thereon, together with all damages sustained by these plaintiffs for the conversion thereof.
    ‘ ‘ %nd. That if the said defendants, Fred. Butter-field & Co., shall have advanced any moneys on said bonds in good faith and without notice, then that said defendant, Fred. Butterfield, be allowed the amount so advanced thereon.

      “3rd. That if the said defendants, Fred. Butter-field & Co., shall hold and own said twenty-nine bonds in good faith, then that they account to the plaintiffs for the property and securities held by them and received from said defendants, Henry Clews & Co., and ■ after the said defendants, Fred. Butterfield & Co., shall have been paid therefrom their said claims and demands against said defendants, Henry Clews & Co., that they pay the surplus or so much thereof as shall be necessary to satisfy the plaintiffs’ claims, demands and damages against said defendants, Henry Clews & Co.
    “ 4ill. That the plaintiffs have judgment against the defendants, Henry Clews & Co., for all damages that said plaintiffs have sustained by reason of the unlawful conversion of said bonds.

      ‘5ill. That an injunction issue, restraining the defendants from parting with or disposing of said twenty-nine bonds; that a receiver be appointed, and that the plaintiffs have such other and further relief as to the court shall deem meet.”
    The answer of Henry Clews and Theodore S. Fowler, among other things, denied that they fraudulently hypothecated said bonds, and alleged that they were hypothecated for the purpose, among other things, of carrying out the letter of credit, and the arrangements between plaintiffs and themselves.
    The answer of the other deféndants, among other things, denies the alleged fraudulent hypothecation, denies that Fred. Butterfield & Co. have sufficient property, other than said bonds, in their hands, from which they will realize enough to pay their own claims and demands against said Henry Clews & Co., without having recourse to said bonds, and denies that defendant, Taylor, claims some interest in said bonds. The answer contained no affirmative allegations to the effect that these defendants were bona fide holders for value without notice.
    The action was tried at special term as an equity suit. The learned judge before whom the cause was tried found as conclusions of law :
    “ 1st. That said bonds in suit are negotiable instruments, the title to which passes by delivery.

      “2nd. That the estate of Wm. Butterfield, or his personal representatives, are the holders, in good faith, of said bonds in suit, and entitled to retain the same.

      “3rd. That said Frederick Taylor has no interest in said bonds, either individually or as a member of the firm of Fred. Butterfield & Co., or as assignee of said Henry Clews & Co.

      “4th. That the defendants, Frederick Butterfield, Frank H. Ini oes, Edward A. Price, Frederick Taylor, and Peter B. Worrall, are entitled to judgment dismissing the complaint as against, them, with costs, and two hundred and fifty dollars allowance.
    “ 5fh. That as to the defendants, Henry Clews and Theodore S. Fowler, the issues in this action should be tried by jury.”
    Upon this finding, judgment was entered dismissing the complaint as against Fred. Butterfield, and others, constituting the firm of Fred. Butterfield & Co., and as against Frederick Taylor, as assignee of Henry Clews & Co., but without prejudice to the plaintiffs’ right to a trial by jury of the issues raised by the answer of the defendants constituting the firm of Henry Clews & Co.

      Plaintiffs appeal from the judgment and each and every part thereof.

      C. Bainbridge Smith, attorney, and of counsel for appellants, upon the legal questions considered in the general term opinion, urged :
    —I. There was a mis trial. The action was purely of an equitable character, and the court had no authority to dismiss the complaint as to some of the parties, and direct another branch of it as a matter of law to be tried by a jury (1 Story’s Eq. Jur. § 703, and cases cited; Bay v. Coddington, 5 Johns. Ch. 54; Lloyd v. Gordon, 2 Swanst. 180; Patrick v. Harrison, 3 Brown Ch. 476; Jackson v. Butler, 9 Mod. 297; S. C., 3 Atk. 306; Osborne v. U. S. Bank, 9 Wheat. 738; Hamilton v. Cummings, 1 Johns. Ch. 517; Kobbi v. Underhill, 3 Sandf. Ch. 277; Hasbrouck v. Vandervoort, 4 Sandf. 74; State of Illinois v. Delafield, 8 Paige, 527; 2 Story Eq. Jur. § 1032; Eden on Inj. 210; Brinkley v. Brinkley, 56 N. Y. 192; 1 Story’s Eq. Jur. § 71; 2 Id., § 1, 483; Code of Pro. § 387). (1.) The extension of the jurisdiction of courts of law to cases which formerly were subjects of equitable jurisdiction exclusively has not ousted the jurisdiction of courts of equity (White v. Meday, 2 Edw. 486, and cases cited ; Sailly v. Elmore, 2 Paige, 497; Mayne v. Griswold, 3 Sandf. 464; American Ins. Co. v. Fisk, 1 Paige, 90; McLaren v. Pennington, Id. 102). Where equity obtains jurisdiction of a cause for any purpose it will retain it until justice is effected (1 Story Eq. § 74; Id. (11 Ed.) § 64, k; De Bemer v. Drew, 39 How. Pr. 466; Le Roy v. Veeder, 1 John. Ca. 417; Rathbone v. Warren, 10 Johns. 587, 596 ; King v. Baldwin, 17 Id. 384).
    II. The defendant Fred. Butterfield, and the other defendants, composing that firm, did not allege in their answers that they had received the bonds in question in good faith, without notice and for valuable consideration (1.) Before the Code of Procedure this was requisite (Wallyn v. Lee, 9 Ves. 24, 33, 35 notes; Gallatin v. Cunningham, 8 Cow. 361; Frost v. Beekman, 1 Johns. Ch. 288; Balcolm v. N. Y. Life Ins. Co., 11 Paige, 454-456). (2.) The rule under the code is as of old; in order to admit testimony that a party is a bona fide holder for a valuable consideration, it is necessary that the answer should contain allegations to that effect (Weaver v. Barden, 49 N. Y. 286-9; Field v. The Mayor, 8 Id. 179). Therefore the court erred in allowing the defendants to prove that they were bona fide holders of the plaintiffs’ bonds for value, and the ^exception thereto is well taken.
    III. Frederick Butterfield carried on and transacted "business under the firm name of ‘ ‘ Fred. Butterfield & Co. of 1866.” This was a fictitious name, and having obtained possession of the plaintiffs’ bonds in violation of the statute of the State of New York he cannot hold them as against the plaintiffs (Laws, 1833, Ch. 281; see 4 General Stat. [Edm. ed.], 449). (1.) This act of the defendant, Fred. Butterfield, was within the plain provisions of the statute prohibiting such a trans.action and upon principle and authority renders it void (Griffith v. Wells, 3 Denio, 226; Swords v. Owen, 2 J. & S. 277; S. C., 43 How. Pr. 176; Pennington v. Townsend, 7 Wend. 276; 1 Story Eq. Jur. 296). (2.) If Frederick Butterfield could not recover the purchase money on a sale of the bonds, can he hold them against the owners when it appears he obtained them by and through the same illegal means ? Is it not a fundamental principle of law that no right can be derived from any contract made in express opposition to the laws where such contract is made % (Duncan v. McLure, 4 Dall. 308; Hall v. Mullin, 5 Har. & J. 693; Clark v. Shee, 1 Cowp. 197; Swords v. Owens, 43 How. Pr. 176; Ramsdell v. Morgan, 16 Wend. 517; Dean v. Howes, Hill & Denio, 37; Keutgen v. Parks, 2
      Sandf. 60. See also Dix v. Van Wyck, 2 Hill, 522; Griggs v. Howe, 2 Keyes, 166; Armstrong v. Lewis, 3 M. & K. 45; Woodworth v. Bennett, 43 N. Y. 273; Tregoning v. Jenner, 7 Bing. 97; S. C., 20 E. C. L. R. 60).

      Boardman & Boardman, attorneys, and Andrew Boardman, of counsel, for respondents, urged :
    —I. A consideration of the pleadings deprives of all force the objections to testimony introduced on behalf of the defendant Butterfield, based upon the ground that it was not pleaded in the answer, viz.: the objection to the proof of the honafides of the loan and pledge of securities, and also of Butterfield’s not being himself interested either in the loan as security for which the' bonds in suit were pledged, or in the bonds themselves.. There was no necessity of pleading such matter in behalf of the firm of Fred. Butterfield & Co., and the complaint contained no allegations against Butterfield, except in his capacity as a member of that firm. They made no attempt to amend their complaint so as to notify Butterfield that they would, upon the trial, attempt to fasten upon him an individual liability, nor did they bring in as parties the persons really interested in the bonds. They chose to go to trial upon the complaint in its original form, and, having introduced evidence tending to show an individual liability on the part of Butterfield, attempted to shut out testimony on his behalf, on the ground that his answer did not properly plead matter of defense to a claim of which no mention is made in the complaint. Such testimony was properly admitted over the objection that it was not pleaded, which was the only objection taken.
    II. The only ground upon which the special term took, or could take, jurisdiction of the present suit, as containing any equitable cause of action, was the claim set up in the complaint that the plaintiffs were entitled to an accounting and a marshaling of the securities held as collateral by Fred. Butterfield & Co., and to the release of the bonds in suit from the lien of their loan, on the ground that they held sufficient other collateral security for its payment without having recourse to these bonds. The evidence shows that the securities held as collateral would not realize sufficient to pay the loans for which they were pledged. This testimony is uncontradicted. Upon the proof of this fact, there disappeared from the case the only element entitling the plaintiffs to the interference of a court of equity.
    III. The plaintiffs claim that the loan of $690,000 was, on account of the use of the term “Fred. Butterfield & Co. of 1866,” in contravention of the statute of April 29, 1833, prohibiting the use of fictitious names in business. This statute must be construed in connection with chapter 400 of the Laws of 1854 (Session laws of that year, page 1084), and chapter 144 of the Laws of 1863 (Session laws of that year, page 227), which are in pari materia, and which provide that the use of a copartnership name may be continued upon complying with their provisions as to filing a certificate and publishing an advertisement to that effect. The object of these statutes was to prevent persons from obtaining credit on the responsibility of supposed names included in the term “Co.,” but here Fred. Butterfield represented an actual responsible name as to all the world except his partners, and “ Co.” represented two names—William Butterfield and L. A. Jacobus. Fred. Butterfield was a partner liable for all the debts of the firm, and it was only as between himself and the two persons included in the term “Co.” that his liability was limited. The statute in question cannot avail the plaintiffs. For (1.) no case can be found in which a party has been allowed to take advantage of the statute, unless it was specially pleaded (O'Toole v. Garvin, 1 Hun, 92, and cases there cited). (2.) The court will not deprive the personal representatives of William Butterfield of their property by its judgment in an action to which they are not made parties, and have not had an opportunity to be heard. (3.) The transaction was not within either the spirit or the letter of the law, even if it be conceded that the making of the loan was “transacting business” within the meaning of those terms as used in the statute. The law was intended to prevent persons obtaining credit to which they were not entitled. In the present case credit was given to Clews & Co. The term was used in the liquidation of the affairs of a firm which had ceased doing business, and with the addition of the words “ of 1866,” employed simply as an ear-mark to keep the proceeds of the property of that firm entirely separate from other funds. (4.) There is no proof that the provisions of the enabling statute of 1854 have not been complied with. In the absence of such proof, the court will not presume that a party committed a misdemeanor (Hartwell v. Root, 19 Johns. 345; People v. Pease, 27 N. Y. 45; Farmer’s Loan Co. v. Curtis, 3 Seld. 470).
    IY. Finally, should it be held, not only that the statute applies, and that the plaintiffs can take advantage of it, but also that no subrogation takes place, still the judgment of the court below should be affirmed, as the plaintiff’s remedy at law, by an action of replevin, was perfect against the parties holding the bonds ; and with such a controversy the special term, or, in other words, the equity side of the court, had nothing to do, the defendants being entitled to a trial by jury (People v. Albany R. R. Co., 57 N. Y. 161; Hudson v. Caryl, 44 Id. 553; Bradley v. Aldrich, 40
      Id. [1 Handd] 504; Mann v. Fairchild, 2 Keyes, 111; Heyward v. City of Buffalo, 14 N. Y. 534).
   By the Court.—Freedman, J.

—As to the defendant Taylor, it was found below, as a conclusion of law, that he has no interest in the bonds in controversy, either individually or as a member of the firm of Fred. Butterfield & Co., or as assignee of Henry Clews & Co. This finding was not excepted to, nor does the record contain any exception whatever under which the dismissal of the complaint as against him as assignee of Henry Clews & Co. could be reviewed.

As against the defendants constituting the firm of Fred. Butterfield & Co. the action proceeded on the theory that they, as against the plaintiffs, were not bona fide holders of the bonds in question for value, or, if they were, that the plaintiffs were entitled to an accounting and a marshaling of the securities held by Fred. Butterfield & Co. as collaterals, and to the release of the bonds in suit from the lien of their loan to Henry Clews & Co., on the ground that they held sufficient other collateral security for the payment of the loan without having recourse to these bonds. If the evidence given upon the trial failed to establish this theory, but a single issue remained to be tried between the plaintiffs and Henry Clews & Co., and that related solely to the alleged conversion of the bonds. For the purpose of trying that issue, the last named defendan ts had a right to demand a jury (Sternberger v. McGovern, 56 N. Y. 12; Hudson v. Caryl, 44 Id. 553; Kinne v. Kinne, 2 Sup'm Ct. [T. & C.] 393).

The bonds in suit were negotiable instruments, and as holders in good faith and for value Fred. Butterfield & Co. could, if necessary for their protection, retain them as against the plaintiffs. Under the issues raised by the pleadings they had a right to show that they were such bona fide holders for value, and the evidence given by them clearly established and fully justified the learned judge below in finding, as he did, not only that they had parted with full value upon the faith of the bonds and without notice of plaintiffs’ rights in the premises, but also that in making the loan or loans to Henry Clews & Co. they had acted as agents only for others. Moreover, the plaintiffs not only failed to show that Fred. Butterfield & Co. held sufficient other col-laterals, but the latter proved by testimony which remained uncontradicted, that all the securities held as collaterals would not realize sufficient to pay the loan for which they stood pledged.

It is insisted, however, that inasmuch as Frederick Butterfield made the loan in question under the firm name of “Fred. Butterfield & Co. of 1866,” and at a time at which no such firm existed, he obtained possession of plaintiffs’ bonds in violation of the statute of the State of New York forbidding persons to transact business under fictitious names (L. 1833, ch. 281), and that for this reason, if no other, the complaint was improperly dismissed as against him. The statute referred to, provides that no person shall transact business in the name of a partner not interested in his firm, and where the designation “and company” or “& Co.” is used, it shall represent an actual partner or partners. It further provides that any person offending against its provisions shall, upon conviction, be deemed guilty of a misdemeanor, and be punished by a fine not exceeding one thousand dollars.

Upon this branch of the case the facts appear to be as follows:' „

About August?, 1873, Frederick Butterfield, as agent of the estate of Sarah Hannah Butterfield, and out of the moneys in his hands belonging to said estate, and on securities including the twenty-nine bonds in suit, loaned to Henry Clews & Co. the sum of $112,939.69.

About September 4, 1874, Frederick Butterfield, as agent of the estate of William Butterfield, and out of moneys then in his hands belonging to said estate, loaned to Henry Clews & Co. the sum of $690,000. Out of the sum so obtained Henry Clews & Co. repaid the loan had from the estate of Sarah Hannah Butter-field, and at the same time they transferred the securities held by Frederick Butterfield as agent of the estate of Sarah Hannah Butterfield to him, as agent of the estate of said William Butterfield, as security for said loan of $690,000.

Prior to 1866, William Butterfield and one Lyman A. Jacobus had carried on business in the cities of London and Hew York under the firm name of “Fred. Butterfield & Co.,” and to this business Frederick Butterfield had given the use of his name. The business ceased in 1866, and the said sum of $690,000 formed part of the proceeds of the assets thereof which belonged to said William Butterfield, and as such it passed into the hands of Fred. Butterfield for management. In order to distinguish the proceeds of the said assets from the assets of the firm of Fred. Butterfield & Co. as subsequently formed, they were kept in a separate account under the title of “Fred. Butterfield & Co. of 1866.” The transaction with Henry Clews & Co., as above stated, was made under that title in September, 1874, and by a check signed “ Fred. Butterfield & Co. of 1866,” though William Butterfield had died during the preceding month of June.

Upon this state of facts, it is clear that prior to and in 1866 the name of Fred. Butterfield represented an actual party responsible to all the world, except his partners, for the use of his name, and the term “ & Co.” represented two other parties, William Butter-field and L. A. Jacobus, who were partners in fact. By this arrangement Frederick Butterfield became liable for all the debts of the firm bearing his name, and ifc was only as between himself and the two persons included in the term “& Co.,” that his liability ■ was limited.

Under these circumstances it may be a question whether the statute applies. This statute must be construed in connection with chapter 400 of the Laws of 1854, and chapter 144 of the Laws of 1863, which are in pari materia, and which provide that the use of a copartnership name may be continued upon compliance with their provisions as to filing a certificate and publishing an advertisement to that effect, and there is no proof that the provisions of these enabling statutes have not been complied with.

But another, and fatal objection is, that Frederick Butterfield was not declared or proceeded against under the statute referred to. The alleged violation of the statute, if any there was, not having been made the basis of the action, and the fact being that he acted as agent only for principals not before the court, the law will- not deprive these principals of their property by means of a judgment to be rendered in an action to which they were not made parties, and in which they have had no opportunity to be heard. If the plaintiffs intended to rely upon the statute, they should have pleaded its violation (O’Toole v. Garvin, 1 Hun, 92).

The case also contains exceptions to the admission óf testimony, to the findings as made, and the refusal of the court to find as requested by the plaintiffs, but under the views, above expressed they are clearly untenable.

The judgment, should be affirmed with costs.

Curtis, Oh. J., concurred.


text:
    ROSWELL D. HATCH, Plaintiff and Respondent, v. JOHN J. BOWES, impleaded with J. NELSON TAPPAN, Chamberlain of the City of New York, and THE MAYOR, ALDERMEN AND COMMONALTY of the City of New York, Defendants and Appellants.

      Decided February 4, 1878.
    Hew Yobk City.
    1. GRADES OF STREETS, CHANGING OE.
    1. Award for damages under chapter 52 of the Laws of 1852, made to a certain named person by the board of assessors, and deposited by the comptroller with the city chamberlain. *

      (a) CLAIMANT, in opposition to the person named in the assessment list as entitled thereto, bbmedy of.
    1. An action against the party named in the assessment list for the recovery of a sum equal to the amount so deposited.†

      (a) The statute makes such deposit equal to a payment to the person named in the assessment list, for the purposes of a suit to be brought thereon.
    2. This right to bring action, enures to whom. To every person seeking to enforce a claim to the award, no matter whether his alleged rights accrued before or after the making of the award, by operation of law or the act of the parties.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ*.
    * The questions as to what remedy a claimant would have in case the comptroller refused to pay either to the chamberlain, or to the party named in the assessment list, and the party named refused or neglected to sue, or in case the party named was insolvent and the comptroller announced his intention to pay to him, or in case the claimant notified the comptroller not to pay, but he, nevertheless, did pay, were not involved in the decision of the demurrer.
    † Of course, the right of recovery would depend on the claimant’s establishing his right to the award. '

      Action to recover §1,560, being the amount of an award made to defendant Bowes, by reason of damage done by the change of grade of Manhattan street.
    The defendant, Bowes, demurred to the amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action against him.
    The demurrer was overruled with leave to answer, and from the order entered thereon the defendant appealed.

      Thomas Wins or, attorney, and of counsel, for appellant, urged :
    —I. The only claim of Hatch is, that at the time when the work was actually commenced in changing the grade and regulating Manhattan street, he was then owner, and the award should have been made to him instead of Bowes, the present -owner.
    This means that the action of the board of assessors in allowing, and the board of revision in confirming, an award to Bowes, was erroneous, and so far void as that it may be assailed collaterally in an action against the city directly for the money, as though the award had been made to him ; and this without any proceeding, by mandamus or otherwise, against either board, to review, correct or change the award. The action of the boards of assessors and revision was judicial (Barhyte v. Shepherd, 35 N. Y. 238, 252-4). It can only be reviewed or corrected by mandamus, certiorari, &c., and the error, if there was any, "does not lay the foundation for an action at law to redress the alleged injury ” (Swift v. City of Poughkeepsie, 37 N. Y. 511; Barhyte v. Shepherd, 35 Id. 255; Heywood v. City of Buffalo, 14 Id. 539). There is no award to Hatch, nor to unknown owners, and this action, as a proceeding to change the award from Bowes to him, cannot be maintained.
    II. This court has decided, both at special and general term, in this controversy, that the provision of the act of 1852, conferring special jurisdiction on this court in these proceedings, is unconstitutional and void. There are no remedies left, therefore, except that given by the statute itself. No action can be maintained under the statute excepting assumpsit, as for “ money had and received ” in behalf of the party who has the legal title (Laws of 1852, ch. 52, § 4). The plaintiff Hatch has no legal title, and therefore has no standing in court. The statute does not admit the inquiry whether an award has been erroneously made, but only whether it has been erroneously paid. This contemplates only claims for the award by persons in a representative capacity as heir, next of kin, assignee, judgment creditor, &c., of the party to whom the award is made. The words in the proviso, “their title to receive such award disputed,” mean nothing different from this, namely, not to whom should this award have been made, but as it stands, to whom is it payable % Besides, doubtless, the whole proviso falls under the constitutional objection, its plan and scheme being broken.
    III. No action can be maintained under this statute excepting against the party who has the money. It is not alleged that the defendant Bowes has ever received the money awarded to him. On the contrary, the complaint avers that it is held by the other defendants (Laws of 1852, ch. 52, § 4).
    IV. The change of the grade of a street does not take private property for a public use, and there is no constitutional requirement that comjpensation shall be given (Const. art. 1, § 7). This award was therefore a pure gratuity given by the act in question ex gratia for the exercise by the State of its right of eminent domain. The case falls within the principle that every owner of property holds it subject to the paramount authority of the sovereign power to make public improvements, notwithstanding incidental damage may-result to individuals (Brick Church v. The Mayor, 5 Cowen, 538; Stuyvesant v. The Mayor, 7 Id. 588; Coates v. The Mayor, 7 Id. 585). At common law, therefore, the injury claimed would be damnum absque injuria (People ex rel. Doyle v. Green, 3 Hun, 759). The award is analogous to a bounty or pension granted by the government. The statute alone which gives the gratuity gives also the remedy. No action can be brought, and no action can be sustained against Bowes until he receives the money.

      James A. Deering, attorney, and of counsel, for respondent, urged.
    —I. The plaintiff is entitled to sue. The mere mention of J. J. Bowes in the assessment list is not conclusive, as by section 4 provision is made for cases where the title of the party named in the assessment list is disputed. The counsel for Bowes based his argument at special term in support of his demurrer on the point that no equitable relief could be had in this matter, but that an action on assumpsit is the only remedy provided by Laws of 1852, section 4, statute 52. In this he is mistaken, as two distinct provisions are made by said section. First. That in case of non-payment of award by the mayor, &c., it shall be lawful for the persons entitled to the same to sue for and recover the amount (Fisher v. Mayor, 57 N. Y. 344). Second. That when such award is paid to the wrong person, it shall be lawful for the person to whom the award should have been paid to sue the person wrongfully receiving the award, as for so much money had and received. This action is brought under the first provision, which is general in terms, and Bowes is made a party defendant as claiming an interest adverse to the plaintiff under section 447, code of civil procedure.
   By the Court.—Freedman, J.

—The question presented by the present appeal is one of pleading, and for the purpose of determining it the allegations of the complaint demurred to must be assumed to be true. No facts outside of it can be considered. The said complaint contains no allegation that the plaintiff ever conveyed the premises described therein to the defendant Bowes, or that the latter has, or ever had, any title to or interest in the same. It avers the making and confirmation, pursuant to the statutes in such case made and provided, of the award of $1,560, for the damage and injury done to the premises by the change of the established grade of the street, and the regulation thereof in accordance thereto, and then proceeds as follows :

Third. That at the time of the actual change of grade of said street, and of the aforesaid regulation, this plaintiff, and one Daniel Green, were the owners of said premises, and the persons injured by said change of grade and regulation as aforesaid, and entitled to whatever award or damages made or to be estimated therefor.

Fourth. That on January 34, 1877, the said Daniel Green assigned to said plaintiff all his estate and interest in the sum awarded, as aforesaid, for said damages sustained, as aforesaid.

“Fifth. That the said board of assessors allowed, and the said board of revision confirmed, the said damages to one John J. Bowes, who is made a party defendant hereto, and who claims the same, but that the said allowance was made without notice to, or the knowledge or consent of, this plaintiff, and without any examination as to the right to said award as' between this plaintiff and the said Bowes, and that the said Bowes has no right, title or interest in, or to, the said award, or any part thereof.”

These allegations sufficiently show plaintiff’s right, and sufficiently deny defendant’s claim to the award as made.

The question then arises whether plaintiff has pursued the proper remedy to enforce his right. •

At common law, a town or city is not liable for damages resulting to an abutting owner from a mere change in the grade or surface of the public highway, if the change does not extend beyond the limits of the highway. The loss which he suffers from such a change is damnum absque injuria.

By chapter 52 of Laws of 1852, however, compensation is directed to be made in certain cases. The statute prescribes the mode in which the loss or damage shall be ascertained and the award made and paid. It also makes provision for cases of conflicting claims to the same award, and for claims by persons under disabilities, and by unknown owners whose names could not be ascertained by the assessors, but is to a great extent silent as to the manner in which conflicting claims are to be determined.

The plaintiff heretofore applied on petition that the comptroller be directed to pay to the chamberlain the said award of $1,560 to await the determination of the rights of the petitioner, and that the court take proof and determine the title of the petitioner and other claimants to the award; and it was held, both at special and general term, that no jurisdiction had been conferred to determine the matter in any such summary manner. At the same time it was intimated that the remedy was by action.

The plaintiff thereupon brought this action, in which he asks judgment against the mayor, aldermen and commonalty of the city of Hew York for the sum of $1,560; that the chamberlain be directed to pay over to the plaintiff a certain part of the said award which has already been paid over to him by the comptroller; and that J. J. Bowes be adjudged to have no interest or title in and to the said award.

The defendant, Bowes, being the only defendant, who interposed a demurrer, it is only necessary to ascertain whether the action as brought is well brought against him.

The complaint contains no allegation of insolvency on the part of Bowes, nor does it contain any other allegation calling for the interposition of the equitable powers of the court, and consequently it must be treated as resting upon the statute exclusively. This renders it necessary that we should re-examine the intimation thrown out by the court on the former occasion, and determine in what cases and to what extent the statute gives a right of action.

Under the statute the awards, if any be made, are to be made by the assessors to the owners of the lands or tenements fronting on the street and opposite thereto (§ 3).

Within four months after the ratification of the assessment, the corporation of the city of New York is directed to pay to the respective parties entitled thereunto the amount of such awards in their favor respectively ; and in case of neglect or default to pay the same, after demand made therefor, the persons entitled to the same may sue for and recover the amount (§ 4).

The words “respective parties entitled thereunto” and “persons entitled to the same,” as thus used, evidently refer to the owners named in the assessment list in whose favor the awards were made by the assessors, and no others, and this is the interpretation to be given to the statute. All others are left to pursue, in the first instance, whatever remedy may be appropriate to effect a revision and correction of the assessment, and in case of non-success or failure to take the necessary steps, they have, except in the few instances to be hereafter stated, no direct right of action.

The statute next provides, that in case an award shall be paid to any person or persons not entitled thereto, the person to whom the same ought to have been paid, may sue for and recover the same with lawful interest and costs of suit as so much money had and received to his use. The right of action hereby conferred arises after payment, and-is enforceable only against the person or persons to whom payment was made. The question as to what persons are included in the words “the person to whom the same ought to have been paid,” I shall discuss hereafter.

The plaintiff not having been enumerated in the assessment list as the person entitled to receive the award, and the award, as made, not having been paid over to Bowes to whom it was made, the action set forth in the complaint cannot be maintained under the provisions of the statute so far considered.

The statute, however, finally provides as follows :

' “Provided, that when the name or names of the owner or owners, party or parties are not set forth in the report of the assessors, or where the said owners, parties or persons respectively, being named therein, shall be insane, a married woman under the age of twenty-one years, or absent from the city, or after diligent search cannot be found, or their title to receive such awards disputed, it shall be lawful for the said mayor, aldermen and commonalty to pay the sum or sums mentioned in said report, or that would be coming to such owners, parties and persons respectively, to the chamberlain of the city of New York, to be secured, disposed of and improved as the superior court shall direct, and such payment shall be as valid and effectual in all respects as if made to the said owners, parties, and persons respectively themselves, according to their just rights, if they had been known and had been present, of full age, single woman and of sound mind.”

This proviso again shows that it was the intention of the legislature to shield the corporation against actions at law instituted by persons other than those named in the assessment list. .The statute first authorizes all so enumerated to maintain actions directly against the corporation, in case of its neglect or refusal to pay; to such as are not thus enumerated, it gives a remedy against thos'e to whom payment may have been made ; and finally, the proviso makes a deposit with the «chamberlain equal to a payment, for the purposes of a ¡.suit to be brought thereon. But no jurisdiction is conferred to compel a deposit.

The complaint alleges that a small portion of the .-sum of $1,560 was on or about January 19, 1877, paid ¡by the comptroller to the chamberlain, who now holds :the same, and hence, to the extent of that deposit, the «complaint states a sufficient cause of action against ¡Bowes, provided the plaintiffs were authorized to sue, If payment had actually been made to Bowes. The reason for which the deposit was made, is immaterial. It may well be that the comptroller set off an assessment levied upon the premises in question for benefit against the sum of $1,560 awarded for damage, and that the amount deposited represents the" difference only. Whatever the fact may be, it is sufficient that ■there is in the hands of the chamberlain a sum of money representing a portion of the award.

The only remaining question, therefore, is whether the statute would authorize plaintiff to sue Bowes as for money had and received to plaintiff’s use, if payment had been made to Bowes.

It has already been shown that so far as the statute gives the right to sue the corporation, the right is confined to the persons who had amounts awarded to them in the assessment list. But the remedy by action against such as received the award without being entitled thereto, is, as regards those authorized to sue in such case, not restricted to any particular class. As to the parties empowered to bring such a suit there are no words of limitation. On the other hand, the proviso expressly provides that, as against certain parties-named, a deposit with the chamberlain shall be just as effectual as if payment had been made in some other lawful manner. Upon the whole statute, therefore, I am of the opinion that the words ‘ person or persons to whom the same [viz., the award] ought to have been paid,” are comprehensive enough to include every person seeking to enforce a claim to the award as made, no matter whether his alleged right accrued before or after the making of the award, by operation of law or the act of parties, and that every such person may maintain an action against the party to whom the-award was paid, or for whose account a deposit was made.

For the reasons stated, the facts set forth in the-complaint are sufficient to authorize a recovery against-the defendant Bowes to the extent of the amount in the hands of the chamberlain, and consequently the demurrer was properly overruled.

The order appealed from should be affirmed with costs, and.with leave to defendant to answer on payment of costs.

Curtis, Ch. J., and Sedgwick, J., concurred.


text:
    SIMON COHN and MANHEIM COHN, Plaintiffs and Respondents, v. PHILIP GOLDMAN, impleaded with WILLIAM HARTMAN, Defendants and Appellants.
    I. Conspiracy to cheat and defraud.
    1. Action to recover damages sustained by reason thereof.

      (a) PLEADING.—COMPLAINT, WHAT SUFFICIENT. —GENERAL ALLEGATIONS.
    1. A complaint alleging generally that defendants “did in concert by connivance, conspiracy and combination, cheat and defraud plaintiffs out of ” is a sufficient allegation of the fraud and conspiracy.
    H. CONSPIRATORS.
    1. Legal status of. t

      (a) They are joint tort-feasors.
    3. Liability, extent of.

      (a) The act of one acting in concert with others, is, in judgment of law, the act of all, and each is liable for all the injurious consequences flowing from it.

      3. Waiving tort as to one, effect of as to the others.

      (d) Electing to waive the tort as to one, and to sue him in contract, hath not the effect of an election to waive the tort as to the others. The others still remain jointly and severally liable in tort. Neither the pendency of the action against the one as to whom the tort is waived, nor a judgment rendered therein without actual satisfactionwill constitute a good plea in abatement or bar.

    1. Former recovery.—Pleading.

      id) A plea of former recovery against one or more joint
    tort-feasors, whether in contract or in tort, to be good must also aver actual satisfaction.

    1. Application.
    Plaintiffs sued H. in an action for goods sold and delivered. Upon an affidavit setting forth that the sale was procured by false and fraudulent representations made by II., an order of arrest in that action was obtained against H. H. defended. After issue joined, an arrangement was made whereby plaintiffs consented to a vacatur of the order of arrest, and in consideration thereof, H. allowed them to take judgment for their claim and costs. Afterward the plaintiffs in that suit commenced an action in tort against G. and H., charging they did in concert by conspiracy, cheat and defraud plaintiffs out of said goods. G. alone defended this action, and relied on the action against H., and the judgment therein, as a bar.
    Held,
    that those matters constituted no defense, there being no satisfaction of the judgment.
    IH. NEW TRIAL—MOTION FOR, ON GROUND OF INSUFFICIENCY OR PREPONDERANCE OF EVIDENCE.
    1. General rule is that when defendant has omitted to move for a 11011-suit, or the direction of a verdict, on the ground of insufficiency of plaintiff’s proof, and has treated the case as one calling for submission to the jury, he cannot, in support of a motion for a new trial, he allowed to claim either that the evidence is so insufficient on plaintiff’s side, or so overwhelmingly prepondering as to authorize but one verdict,—viz., one in his favor.

      (a) Rule relaxed.—In the case at bar the rule was relaxed by reason of its being a highly peculiar case, and the preponderance in the number of witnesses so largely in appellant’s favor.
    IV. Witness.
    1. ACCOMPLICE.
    (a) Verdict based, in the main, upon the testimony of an accomplice, sustained.

    (1) Plaintiffs’ case, in the main, depended on the evidence of H., who testified to a conspiracy between him and G. to defraud the plaintiffs, and to the accomplishment of the fraud alleged in the complaint. He was contradicted by G., and in essential particulars, by at least half a dozen witnesses, in such a manner that if he told the truth, they willfully perjured themselves. He, however, was corroborated to a large degree by facts and circumstances.
    Held",
    a verdict for plaintiffs should not be disturbed.
    V. Evidence.
    1. FRAUD—GENERAL PRINCIPLES TOUCHING EVIDENCE
    TO ESTABLISH.

      Decided February 4, 1878.
    It is the most subtle of legal elements, and is frequently developed by comparatively trifling facts and circumstances, which, isolated, amount to little, but which, when united by intellectual power, present the charge made clearly and beyond doubt. In such a case, the conduct of the persons charged, while upon the stand, may have an important bearing upon the determination of the issue.
    Before Curtis, Ch. J., and Freedman, J.
    The action was brought against Philip Goldman and William Hartman, for a conspiracy, by means of which the plaintiffs were cheated and defrauded out of eight bales of Havana tobacco.
    The defendant Hartman interposed no defense, and on the trial was plaintiffs’ chief witness.
    The complaint was as follows :
    “ The complaint of the plaintiffs in this action avers that at the city of New York, at divers times between the 22nd of October and the 30th of December, 1874, the defendants in this action in concert did, by connivance, conspiracy and combination, cheat and defraud the plaintiffs out of eight bales of Havana tobacco, in value in the aggregate the sum of seven hundred and seventy-three dollars and fifty-one cents, and at the time of the said cheating and defrauding the plaintiffs out of the said property, that the same was the property of the said plaintiffs, and the said property, by means of the said fraud and cheating, has been wholly lost to the plaintiffs.
    “ Wherefore the plaintiffs claim judgment against the defendants for the sum of one thousand dollars, besides the costs and disbursements of this action.”
    The answer of the defendant Philip Goldman contained a general denial, and as a plea in bar, that the plaintiffs had recovered a judgment against Hartman for the value of the tobacco, in an action on contract, brought in the court of common pleas.
    Upon the trial, a motion was made for a dismissal of the complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action, but mere conclusions. The motion was denied, and the defendant Goldman excepted.
    Testimony was adduced by both sides, at the conclusion of which, a motion was made for the direction of a verdict for the defendants, on the ground that plaintiffs, with knowledge of all the facts, had elected, in the action brought against Hartman, to release him from jail, where he was confined under an order of arrest, and to take judgment against him for the value of the goods, and that they are concluded by that election.
    The motion was denied, and exception taken.
    The case was submitted to the jury under a charge to which no exception was taken, with the exception of that portion of it, which stated, that if the plaintiffs were entitled to recover, they are entitled to recover for the eight bales.
    The jury found for the plaintiffs.
    The defendant Goldman moved for a new trial on the minutes, on the exceptions, and also on the ground that the verdict was contrary to evidence, and the weight of evidence ; which motion was denied.
    Judgment having been entered, the defendant Goldman appealed from the judgment and the order denying his motion for a new trial.

      L. A. Gould, attorney and of counsel for appellant, urged :
    —I. The complaint ought to have been dismissed. The learned justice at the trial was clearly of that opinion, but felt bound to follow the case of Ynguanzo v. Salomon (3 Daly, 153), which, as respondents’ counsel stated, was affirmed in the court of appeals. There is no opinion of the court of appeals ; it does not appear that the sufficiency of the complaint was questioned in that court, and, therefore, it ought not to control the general term.
    II. The verdict is against the evidence. It is the right and the duty of the general term, in a proper case, to review the facts and see whether or not the verdict ought to be upheld (Godfrey v. Moser, 66 N. Y. 250). Here followed a discussion of the evidence.
    III. Appellants’ exceptions, it is submitted, should be sustained. According to Hartman’s own confession, which accords with the charge made against him by the plaintiffs, he sold tobacco at a price less than that he was to pay for it; there is no claim that this was any part of the alleged conspiracy ; there is no pretense that the defendant Goldman ever knew the plaintiffs, nor that Hartman ever stated he was buying or was to buy goods from the plaintiffs; Hartman says he gave the goods to Goldman, but as to Cohn’s goods, he may have sold some and kept the proceeds himself. In the absence of any averment that he bought all of these goods pursuant to this fraudulent scheme, plaintiffs’ recovery ought to be limited to the value of the goods which they could show were actually obtained pursuant thereto.
    IV. But the plaintiffs, with full knowledge of all the facts, compromised their cause of action with Hartman, and took a judgment on contract against him alone for the value of the goods, thus treating the transaction as a sale to Hartman, and vesting and confirming the title to the goods in Hartman alone. This bars their recovery against Goldman, both because they elect to consider the entire transaction a contract of sale with Hartman alone, and merge their cause of action in the judgment, and also because they waived the tort as to Hartman, a joint tort-feasor, which discharges the co-tort-feasor also. The stipulation .constitutes a compromise with Hartman. It is well settled that plaintiffs could not maintain an action for 'the conversion of these goods after they had recovered judgment in an action on contract as for goods sold and delivered, not because this would treat the contract as valid and void at the same time, but because one would proceed upon the theory that there was a contract, and the other upon the ground that there had never been a contract (Kennedy v. Thorp, 51 N. Y. 174). Where a party has suffered damages by reason of a fraud perpetrated under the cover and guise of a contract, and on discovering the fraud brings an action in tort, it is sometimes said he disaffirms or rescinds the contract; but, in strict accuracy, he elects to treat the pretended contract as void, that is, as no contract, by reason of the fraud that vitiates and destroys all contracts. For thése reasons, any action sounding in tort is not concurrent nor consistent with an action on contract founded upon the same transaction. And the plaintiffs having elected to sue on contract, they cannot sue in tort (Wright v. Ritterman, 4 Rob. 704; People v. Kelly, 1 Abb. Pr. N. S. 432; Bank of Beloit v. Beale, 34 N. Y. 473; Dyer v. Tilton, 23 Vt. 313; Sanger v. Wood, 3 Johns. Ch. 416; Rademund v. Clark, 46 N. Y. 354; Morris v. Rexford, 18 Id. 552; Shuman v. Straus, 52 Id. 407; Mallory v. Leach, 23 How. Pr. 512).
    Y. It must be conceded that any compromise or settlement made with one of two joint tort-feasors releases the other also (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628). Plaintiffs waived the tort as to Hartman by their stipulation, and entered judgment on contract against him for the value of the goods. This extinguished their entire cause of action against Hartman (Goodrich v. Dunbar, 17 Barb. 644; McButt v. Hinch, 4 Abb. Pr. 441, and cases cited, supra). The plaintiffs thereby condoned the tort as to Hartman (Nelson v. Blanchfield, 54 Barb. 630; Alliance Insurance Company v. Cleveland, 14 How. Pr. 408; Merchants’ Bank v. Dwight, 13 Id. 367). And a judgment on contract is as complete a bar to another action for the same cause as a release.
    VI. The case of Morgan v. Skidmore does not conflict with these views ; it decides that a member of a firm who makes false representations as to its solvency, which representations induce a sale to the firm on credit, is liable as the guarantor of the firm debt, and may be sued in a separate action, although a judgment on the contract has been entered against the remaining partner of the firm. That is an action for fraud and deceit, whereby the plaintiffs were induced to give credit to a person other than the one who made the representations. To render the present case analogous, Goldman and Hartman should be copartners in business, the fraudulent representations should be made °by Goldman as to the solvency of the firm, the contract should be made with the firm, and upon Goldman’s death, a judgment on the contract should be rendered against Hartman as survivor. In Morgan v. Skidmore, no question arises as to the waiver of the tort as to one of two joint tort-feasors, for the firm was liable solely upon the contract. Upon what principle, or by what reasoning, can it be held in the present case, that Hartman,' after judgment upon the contract, was still liable to be sued and again arrested for the fraud, or be subjected to another judgment for the same cause ? In Dyer v. Tilton, 23 Vt. 313, cited supra, the court says : “It is impossible to say where one has an election of remedies for the same cause, and takes judgment in one form, he can then pursue the other against the same person, and thus have two judgments at the same time for the same cause of action, against the same person.”

      Lauterbach & Spingarn, attorneys, and H. Morrison and S. Spingarn, of counsel, for respondents, urged :
    —I. The complaint is sufficient (Ynguanzo v. Salomon, 3 Daly, 158; affi’d in court of appeals).
    II. The fact that plaintiffs have recovered a judgment against one of the defendants, which judgment remains unsatisfied, is not a good defense by the other defendant in the present form of action, and the ruling of the gourt should be sustained (Ynguanzo v. Salomon, 3 Daly, 158, and Ct. of App.; Morgan v. Skidmore, supra; affirmed in court of appeals; Goldberg v. Dougherty, 7 J. & S. 189; United Society of Shakers v. Underwood, 11 Bush, 265; 21 Am. Rep. 214; 55 Barb. 263; Co. Litt. 352, a; Sutton v. Clark, 6 Taunt. 29; Lansing v. Montgomery, 2 Johns. 382; Low v. Mumford, 14 Id. 462; Rose v. Olliver, 2 Id. 365; Bishop v. Ely, 9 Id. 249; 1 Sandf. 291 a). In an action of trespass brought against two defendants, they severed in their pleas, one pleaded former suit for the same cause and a judgment in his favor ; on demurrer, judgment was given for that defendant. The other pleaded the general issue and also the other defendant’s judgment in his favor on demurrer. Verdict for the plaintiff against the second defendant sustained. Court holding two sued for tort they may plead separately or jointly, jury may find one guilty, other not; the former judgment is no estoppel to the proceedings and judgment against the other (Lansing v. Montgomery, 2 Johns. 392; Viner Abridgment, 75, § 17). In Lovejoy v. Murray (3 Wall. [U. S.] 1), the supreme court of U. S. decided : “Nothing short of satisfaction or its equivalent can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser who was not a party to the first judgment (Fow v. Northern Liberties, 3 W. & S. 103; Railroad Co. v. Mahoney, 7 P. Q. Smith [Pa.] 187; Livingston v. Bishop, 1 Johns. 290; Osherhaut v. Roberts, 8 Cow. 43; Elliot v. Porter, 5 Dana, 299; Sanderson v. Caldwell, 2 Aiken [Vt.] 195; Sheldon v. Kibbe, 3 Conn. 214; Sharp v. Grey, 5 B. Monroe, 4; Blaun v. Cochran, 20 Ala. 320).
    III. The right to recover for the eight bales was the right to recover under the testimony of the plaintiff, if the jury believed the same, adverse to that of the defendant upon two principles of law thus : 1st. The act of one tort-feasor, acting in concert with others, is the act of all, in its consequences in law. 2nd. The injurious consequences of a wrong which flow out of it, and which are traceable to it, are to be visited on all the wrongdoers who ab initio engaged and embarked in its commission (Vandenberg v. Truax, 4 Den. 464, and cases there cited ; Guille v. Swan, 19 Johns. 381).
    IY. The verdict was not upon insufficient evidence (Ynguanzo v. Salomon, supra; Dunn v. People, 29 N. Y. 471; Roth v. Wells, Id. 471; Parker v. Jervis, 3 Keyes, 371; Morse v. Sherrill, 63 Barb. 21).
   By the Court.—Freedman, J.

—The complaint, in stating without elaboration only the ultimate facts on which plaintiffs rely for a recovery of the damage sustained by them by reason of the conspiracy, nevertheless states a good cause of action (Ynguanzo v. Salomon, 3 Daly, 153).

If the appellant desired greater clearness or particularity, his remedy was by motion to make it more definite and certain. The motion to dismiss the complaint for insufficiency was properly denied. "

At the close of the evidence on both sides it appeared that prior to the commencement of this action the plaintiffs had brought an action in the court of common pleas against Hartman to recover the price of the tobacco sold to him, and that Hartman had been arrested under and by virtue of an order of arrest granted in that action upon an affidavit charging him with having obtained the goods by means of false and fraudulent representations; that Hartman defended said action, but that after the joinder of issue, pursuant to an agreement entered into between the parties to that effect, the plaintiffs consented to a vacation of the order of arrest, and, in consideration therefor, Hartman permitted them to enter judgment for the amount of their claim with costs. These facts were claimed as a bar to the present action, and were urged as a ground for the direction of a verdict in appellant’s favor.

H this claim had been advanced by Hartman for his own protection pursuant to plea and proof to that effect, it would but accord with the current of judicial expression to hold that whatever cause of action plaintiffs had against him, had been merged in the judgment recovered against him (Cormier v. Hawkins, Ct. of App., not yet reported).

It is only in the case of partners, where one procures credit for his firm by false and fraudulent representations, that a recovery on contract against the members of the firm jointly is considered no bar to an action against the individual partner to recover the damage sustained by his fraud. In such a case the liability of the offending partner was in extent held similar to that of one who guaranteed the solvency of the firm, but at the same time it was conceded that a guaranty by any person of his own separate debt would be an anomaly (Morgan v. Skidmore, 3 Abb. New Cas. 92).

But Goldman was not a party to the action which resulted in the judgment above referred to. As to him the plaintiffs made no election in that action. If he is liable to them at all, he is liable as a joint tort-feasor, and as such he is liable, at the election of the plaintiffs, to a joint or separate action (Rose v. Oliver, 2 Johns. 365; Lansing v. Montgomery, Id. 382; Creed v. Hartman, 29 N. Y. 591, affirming 8 Bosw. 123; Kasson v. People, 44 Barb. 347).

His liability as such extends to all the consequences of the tort (Wehle v. Butler, 61 N. Y. 245, affirming S. C., 35 N. Y. Super. Ct. [3 J. & S.] 1).

In such cases an answer pleading a former recovery against one, to be good, must also aver actual satisfaction (2 Phil. on Ev. [5th Ed.] 114 [*134]; Osterhout v. Roberts, 8 Cow. 43; Wies v. Fanning, 9 How. Pr. 546; Wehle v. Butler, 35 N. Y. Super. Ct. [3 J. & S.] 1).

Nothing short of full satisfaction or that which the law must consider as such, can constitute a bar to an action against another joint tort-feasor who was not a party to the first judgment (Lovejoy v. Murray, 3 Wall. [U. S.] 1, and cases there cited). Thus in Osterhout v. Eoberts (8 Cow. 43), it was held that a plea, that defendant’s son had been sued, a judgment rendered against- him, and he had been taken in execution and imprisoned sixty days for the same trespass, was bad because the plaintiff had not obtained any satisfaction of his judgment.

The judgment against Hartman having remained fruitless, the facts above alluded to and urged upon the court below on the motion for the direction of a verdict, constituted no bar to the action, nor any ground for the direction prayed for.

During the progress of the trial an exception was taken to the admission of certain statements made by one Philipowsky, but as the appellant did not refer to it, either in his points or on the argument, it may be deemed to have been waived.

The exception to that portion of the. charge by which the jury were instructed, that if the plaintiffs were entitled to recover at all, they were entitled to recover for the eight bales, is clearly untenable. The act of one tort-feasor, acting in concert with others, is in judgment of law the act of all, and each is liable for all the injurious consequences flowing from it (Wehle v. Butler, 61 N. Y. 245).

The only question remaining to be considered arises on the appeal from the order denying defendants’ motion for a new trial, and relates to the sufficiency of the evidence upon which the jury pronounced their verdict.

No motion was made for a non-suit, or the direction of a verdict, on the ground of insufficiency of plaintiffs’ proof, but the case was treated by defendants’ counsel throughout, as one which called for submission to the jury. Under such circumstances, this court has repeatedly declined to examine the testimony at large, with the view of ascertaining what grounds may possibly exist for the claim advanced after the rendition of a verdict for the plaintiff for the first time, that, after all, the evidence is so insufficient on plaintiffs’ side, or .so overwhelmingly preponderating in defendants’ favor, as to authorize but one verdict, namely, a verdict ip defendants’ favor. Inasmuch, however, as the case at bar is a highly peculiar one, and the preponderance in the number of witnesses upon the main question, appears to be so largely in appellants’ favor, I deemed it best to relax the rule in this instance, and to make the examination.

From such examination it appeared that plaintiffs’ case depends in the main upon the testimony of Hartman. He confessed the fraud, and showed the origin, object and consummation of the conspiracy. His version, in brief was, that Goldman, who is a dealer in plate glass, was in the habit of concocting schemes, whereby persons would obtain credit, and then fail and divide the profits with him ; that Goldman encouraged and induced him to procure credit from the plaintiffs and other merchants, and to make the false representations he did make, and that it was agreed between them that, after the goods had been obtained, Goldman should sell him out under a judgment entered upon a stale and paid-up indebtedness, and then give him money to settle with his creditors ; that, in pursuance of this conspiracy, he did obtain from plaintiffs the goods in question, and dispose of part of them, and that Goldman shared in their proceeds, and sold out the balance under his fraudulent judgment.

Hartman was contradicted throughout by Goldman, and in esential particulars by at least half a dozen witnesses, in such a manner that, if he, Hartman, told the truth, they willfully perjured themselves, so that the learned judge who presided at the trial felt constrained to so - instruct the jury. Moreover, Hartman was confronted by an affidavit upon which he had moved in the court of common pleas, though unsuccessfully, for the vacation of the order of arrest against him, and in which he had denied the commission of any fraud.

But Hartman’s testimony, as given upon the trial, stands corroborated to a large degree by facts and circumstances, which speak louder than oral testimony. A paper covering of an express package, in which certain proceeds of the fraud had been sent away by one of Goldman’s friends and witnesses, pursuant to Hartman’s direction, with the direction as to the destination of its contents marked thereon, was produced, and the package was shown to have been delivered at its destination pursuant to the direction. The indorser of the stale and paid-up note, upon which in part the fraudulent judgment was procured, testified that Goldman had admitted to him that it had been paid by a check of $200.00 and a note for the difference. This check was produced in evidence, and it bore the indorsement of "P. Goldman.” The plaintiffs thereupon proved by the receiving teller of the bank in which the check had been deposited, the fact of the deposit for Goldman’s account, and the said teller also produced the deposit, slip bearing as the name of the depositor the words: “P. Goldman.” On cross-examination the said teller admitted, however, that though he was familiar with Goldman’s signature at the time, he could not swear whether the indorsement of the check was his signature. Goldman then denied that he indorsed the check or made out the deposit slip, which was shown to be in the same handwriting as the indorsement, whereupon he was required, on cross-examination and in the presence of the jury, to write three distinct signatures. This was done, and the jury had the opportunity of comparing them with the disputed signature.

With all these facts and circumstances, and many other incidents not necessary to be referred to here, before the jury, which were all calculated to aid them .towards arriving at a correct determination, it is impossible to say that their verdict is against evidence or the weight of evidence. They were properly instructed as to their duty in weighing the evidence, and cautioned not to believe Hartman, unless they found,'in the rest of the case, some corroboration which would satisfy them that his testimony was correct; especially as upon the general state of the evidence there was no escape from the conclusion that if Hartman testified truly, at least half a dozen witnesses on the part of the defense committed willful perjury. Notwithstanding these admonitions, which, in view of the law as settled in this State as regards the testimony of accomplices (see Dunn v. The People, 29 N. Y. 523), contained more than the appellant had a right to demand from the court, the jury, upon their oaths, concluded that their duty required them to believe Hartman. Their verdict, therefore, cannot be disturbed. This case, in its leading features, and legal elements and incidents, is remarkably similar to the case of Ynguanzo v. Salomon, 3 Daly, 153, subsequently affirmed by the court of appeals, in which the verdict was sustained by the general term, for the reason, among others, that fraud is the most subtle of legal elements, and is frequently developed by comparatively trifling facts and circumstances, which, isolated, amount to little, but which, when united by intellectual power, present the charge made clearly and beyond doubt, and that in shell a case the conduct of the persons charged, while upon the stand, may have an important bearing upon the determination of the issue by the jury. The most patient examination of the case at bar fails to disclose a reason why this court should apply a different rule, or come to a different conclusion.

The judgment and order appealed from, should be severally affirmed with costs.

Curtis, Ch., J. concurred.