author: By the Court.—Truax, J.

text:
    THOMAS McMAHON, Respondent, v. THE THIRD AVENUE RAILROAD CO., Appellant.

      Common carriers—rights of passengers under ticket issued for portion of continuous route.

    Plaintiff having paid for passage over defendant’s route of street railway, was given, at an intermediate point thereon, in return for an additional sum paid by Mm, a ticket, on which were these words: “ Third Avenue Railroad Company. Good only from Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the President.” The ticket was indorsed, “ Conductor’s check, July 6th, 1878. ” Plaintiff did not then use the ticket, but afterwards, and on the same day, he entered one of defendant’s cars below, and paid fare to such intermediate point, and at a place above said point tendered the conductor the ticket, which was not accepted, and on his refusal to again pay fare, he was ejected from the car,— Held, that in the absence of knowledge by the plaintiff of any rule limiting his rights under said ticket, the company was liable for the above act of its servant.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided April 4, 1881.
    This is an appeal by defendant from a judgment entered on the verdict- of a jury, and from an order denying a motion for a- new trial on the minutes.
    On July 6, 1878. the plaintiff entered one of the defendant’s cars at Fiftieth street, paid his fare, five cents, and rode up to Sixty-fifth street. The car he was on was what is known as a short car, and did not go above that street. He got off and purchased of one of the defendant’s servants a ticket on which were these words: “ Third Avenue Railroad Company. Grood only from Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the president.” The ticket was indorsed, “Conductor’s check, July 6th, 1878.” The plaintiff' intended to go to Seventieth street. He waited a while at Sixty-fifth street for a car to come, and none coming, he walked to the end of his journey. In the afternoon of the same day, he entered another of defendant’s cars at Fifty-seventh street, intending to ride to Seventieth street, paid five cents for his fare, and at a place above Sixty-fifth street tendered the conductor of the car the above ticket. This the conductor refused to accept. The plaintiff refused to pay more, and thereupon the conductor, without any undue violence, put the plaintiff off the car. For this alleged wrongful act the plaintiff brought his action.

      Lauterbaoh & Bpingarn, attorneys, and H. Morrison, of counsel, for appellant.

      T. F. Neville, attorney, and William B. Harrison, of counsel, for respondent.
   By the Court.—Truax, J.

The defendant moved to dismiss the complaint on the ground that under the evidence no cause of action was shown to maintain the complaint; and that the ticket produced in evidence did not authorize the plaintiff to ride upon the car on the second occasion, in the afternoon, he, the plaintiff, not having used the ticket for the continuous ride on the occasion and at the time he first received it. This motion was denied, and the defendant duly excepted. The defendant then moved the court to instruct the jury to find a verdict for the defendant. This motion was denied and the defendant duly excepted. The court charged the jury, among other things, that the ticket offered in evidence,- bound the defendant to carry the plaintiff when he presented it, and that defendant had no business to turn plaintiff off from the car. To this the defendant duly excepted.

I am of the opinion that none of these exceptions were well taken. The ticket contains the contract between the plaintiff and the defendant. The meaning of the words on it is plain. They were rightly construed by the learned judge before whom the case was tried. The language of the ticket does not connect the ride below Sixty-fifth street with the ride above that street.

Besides, the plaintiff offered the ticket on a “continuous ride.” He did not leave the car, after he entered it, until he was put off by the defendant’s servant. The ticket entitled the plaintiff to a ride upon any passenger car run by the defendant. It contained no notice of any restriction or limitation of the right which it purported to give (Moroney v. Old Colony, &c., 106 Mass. 153).

The ticket, prima facie, was evidence of the plaintiff’s right to that “ride,” and the conductor had no right to demand fare, and to refuse the ticket when it was tendered him. It was not proved that the plaintiff had notice of any rule limiting him to a particular car, and, therefore, he had a right to ride on any of the defendant’s cars, at least on the day the ticket was dated (Pier v. Finch, 24 Barb. 514; Gale v. Del., Lack. &c., 7 Hun, 673).

The judgment and order are affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM SCHULTZ, an Infant, &c., Respondent, v. THE THIRD AVENUE R. R. CO., Appellant.

      New trial—newly discovered evidence —surprise —perjury.

    A new trial will not be granted for the sole purpose of enabling a party to impeach his opponent’s witnesses.
    A new trial will not be granted unless the newly discovered evidence be so decisive in character that it will be productive, on another trial, of an opposite result.
    Where the newly discovered evidence is met by a prior contradictory affidavit of the proposed witness, a new trial will not be granted. Upon a motion for a new trial, it is no excuse for a failure to call a witness, who was present at the trial, that he stated to counsel that he was unwilling to testify and was ignorant of t:.e matters about which he had previously promised to testify. Such refusal does not constitute surprise.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided April 4, 1881.
    This is an- appeal from an order denying a motion for a new trial on three grounds, viz.: newly discovered evidence, surprise, and that the verdict was procured by conspiracy.
    This was an action to recover damages for certain injuries alleged to have been sustained by the plaintiff by and through the negligence of the servants of the defendant. It was tried in January, 1880, and resulted in a verdict of $15,000 for the plaintiff ; judgment was entered on this verdict; and from the judgment, and from an order denying a motion for a new trial on the minutes, the defendant- appeals. This appeal was heard at the general term of this court, May, 1880,and the judgment and order were affirmed. The defendant then made this motion for a new trial upon the grounds first above stated. The defendant says that if it be allowed a new trial, it can prove :■
    1st. That the plaintiff, William Schultz (who was a witness on the trial), was arrested for stealing knives on April 7, 1879, but owing to the non-appearance of the complainant was discharged on the day after, and that he and two other boys were arrested on March 18, 1879, for “malicious mischief,” but that judgment was suspended on the 22d of the same month.
    2d.- That James Morton and Francis Riley, two witnesses for the plaintiff on the trial, testified falsely, and that such false testimony was given pursuant to a conspiracy between the. witnesses • and William H. Schultz, the father and guardian of the plaintiff.
    3d. That the witness, Thomas McMenamin, whom they were unable to find at the trial, but whom they have now found, will give testimony contradicting that of William Schultz, James Morton, and Francis Riley.
    4th. That they were surprised by the conduct of Edward Rafferty, whom they had subpoenaed as a witness at the trial, but who at the trial said to one of the counsel for the defendant that he was unwilling to testify, and was ignorant of the matters in controversy, about which he had before told such counsel he could testify.

      Lauterbach & Spmgarn, attorneys, and H. Morrison, of counsel, for appellant.

      Stilwell & Swain, for respondent.
   By the Court.—Truax, J.

1st and 2d. It is well settled that a new trial will not be granted for the sole purpose of enabling a party to impeach the witness of his opponent (Knoop v. Kammerer, 44 How. 449 ; People ex rel. Stemmler v. McGuire, 2 Hun, 269 ; Woolf v. Jacobs, 34 Super. Ct. 509 ; Chapman v. O’Brien, 39 Id. 244 ; Bunn v. Hoyt, 3 Johns. 255 ; Duryea v. Dennison, 5 Id. 248 ; Fleming v. Hollenbeck, 7 Barb. 271; Sims v. Sims, 12 Hun, 231; Carpenter v. Coe, 67 Barb. 411).

3d. If the counsel for the defendant had used the diligence in looking for the witness, McMenamin, before the trial, that they used in looking for him after the judgment had been affirmed by the general term of this court, they undoubtedly would have found him. But there is another reason besides the defendant’s laches, why the motion for a new trial was rightly denied ; this newly discovered evidence is not so decisive in character that it would certainly be productive on another trial of an opposite result (Darbee v. Fowler, 67 Barb. 359 ; Fowler v. Kelly, 43 Super. Ct. 380).

4th. The excuse offered for not calling the witness Bafferty, who was in court, is not a good one ; besides, Bafferty, if he should testify to what the defendant says he will testify, will be met by his affidavit, which was made shortly after the accident, and which sustains the plaintiff’s version of the accident, and contradicts Bafferty’s new version. McMenamin also made an affidavit, shortly after the accident, which corroborates the plaintiff in all essential particulars (Woolf v. Jacobs, 34 Super. Ct. 509 ; Chapman v. O’Brien, 39 Id. 244).

Hew trials are sometimes granted on the ground of “surprise.” This means that the party asking the new trial was surprised by evidence given by his adversary (Messenger v. Fourth Nat. Bank, 6 Daly, 190). It does not mean that the party or his counsel was surprised or astonished at the refusal of one of his own witnesses to testify as he hoped or expected the-witness would testify.

Order appealed from to be: affirmed, with $10 costs, and disbursements to be taxed.

Sedgwick, Ch. J., concurred.


text:
    JOHN H. STARIN, Respondent, v. JOHN KELLY, as Sheriff, &c., Appellant.

      Evidence—intent of vendee under conveyance alleged to be made to hinder, &c., creditors, when admissible.-—New tidal on ground of newly-discovered evidence.

    Where plaintiff claims title to personal property under a sale, the validity of which is. attacked upon the ground that it was made with intent to hinder, delay and defraud creditors, the intent of both parties to the transaction is material; and, it appearing that plaintiff was a purchaser for a valuable consideration, he may testify in his own behalf that he “ made the purchase without any object or intention of aiding or assisting his vendor to hinder, delay or defraud his creditors.”
    The principles relating to new trials upon the ground of newly discovered evidence, stated by the court.
    Before Sedgwick, Oh. J., and Truax, J.

      Decided April 4, 1880.
    This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes, and also from an order denying a motion for a new trial made on the case containing defendant’s exceptions, and upon the ground of newly discovered evidence and surprise at the trial.
    The action was brought to recover the value of certain goods which the plaintiff claims were unlawfully taken and carried away by the defendant, by virtue of an attachment against one Besson, and which goods the plaintiff claims to have purchased from Besson a few days prior to the .levy made by the defendant. The defense was, -that the alleged sale, and plaintiff’s possession of the goods under the sale, were fraudulent and void as against said Besson’s creditors in general, and particularly as against the attaching creditor, whom the defendant, as sheriff, represented.
    Vanderpoel, Green & Cuming, attorneys, A. J. Vanderpoel and Almon Goodwin, of counsel, for appellant.

      Allan Lee Smidt, attorney, and James M. Smith, of counsel, for respondent.
   By the Court.—Truax, J.

There were no exceptions to the judge’s charge, and no requests to charge, and, therefore, both parties have admitted that the case was rightly submitted to the jury by the learned judge before whom the case was tried.

After the plaintiff, who was called as a witness in Ms own behalf, had testified that at the time he made this purchase he did not know that Besson was in any financial difficulty; that he thought he was perfectly solvent, and that he had never heard a word to the contrary, he was asked by his counsel the following question: “Did you make this purchase with any object or intention of aiding or assisting him to hinder, delay or defraud his creditors?” The defendant objected to this question, on the ground that it was irrelevant and incompetent; the objection was overruled, and the defendant duly excepted.

The question of fraudulent intent is a question of fact and not of law, and the object of asking this question was to show that the plaintiff had no actual notice of any intent on the part of Besson to hinder, delay and defraud his creditors. Constructive notice of such intent is not enough; actual notice is required to impair or affect the title of a purchaser for a valuable consideration (Stearns v. Gage, 79 N. Y. 102). The jury have found that the plaintiff was a purchaser for a valuable consideration. There is evidence to sustain this finding. The intent, then, of the parties to the transaction becomes material. The question called for the testimony of an interested party, and the jury were not obliged to believe it.

It is well settled in this State that the vendor may be asked whether he intended to hinder, delay or defraud his creditors when he made the transfer of his goods (Seymour v. Wilson, 14 N. Y. 567 ; McKown v. Hunter, 30 Id. 628; Foster v. Cronkhite, 35 Id. 147; Blaut v. Gabler, 8 Daly, 48; affirmed, 77 N. Y. 461).

In one case it was held that the knowledge of the vendee of the vendor’s intent to hinder, delay or defraud his creditors was not enough to make the sale void as to such creditors, but that it must be made to appear that the vendee participated in the fraudulent intent (Dudley v. Danforth, 61 N. Y. 626).

The question asked plaintiff, and his answer, showed that he did not participate in any such intent, if Besson had such intent. I am of the opinion that the ruling of the trial judge was correct.

The counsellor the defendant asked Mr. Wright, one of the defendant’s witnesses, on his direct examination, the following question: “State the conversation that took place between you and Mr. Livingston in regard to certain goods there.” This was objected to by the plaintiff’s counsel as incompetent; the question was excluded, and the defendant duly excepted. The defendant’s counsel then asked the following question: “Please state to the jury the conversation which took place between you, Sheriff Reilly and Mr. Livingston, as to which Mr. Reilly gave his evidence yesterday.” To this there was the same objection, the same ruling, and exception.

Mr. Livingston was a clerk or salesman employed by the plaintiff, and was in charge of the plaintiff’s store at the time mentioned. The plaintiff was not present when the conversation took place. The declarations of Livingston would not bind the plaintiff. That there was a conversation was first brought out on the direct examination of Sheriff Reilly, and more fully on his cross-examination. The fact that one party allows his opponent to ask, without objecting thereto, a question which would be excluded if objected to, does not entitle that party to put in incompetent evidence, under objection.

The above exceptions are the only ones that were argued by the counsel for the appellants.

The motion for a new trial made at special term, on the grounds above mentioned, was rightly denied. The newly discovered evidence would only tend to contradict the plaintiff’s testimony, by showing that he was not as rich as he said he was.

Kew trials will not be granted for the sole purpose of enabling a party to contradict or impeach the witnesses of his opponent, or when the testimony, if due-diligence had been used, could have been produced on the trial. All of the proposed testimony relating to-plaintiff’s transactions with the Jersey Central R. R„. Co. could have been produced at the trial.

The new evidence sought to be introduced by the-defendant is not so decisive in its character that it would; certainly be productive of an opposite result on another trial. The testimony would still show that the plaintiff had abundant means with which to m ake the purchase of the goods in question.

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

Sedgwick, Ch. J., concurred.


author: By the Court.—Trttax, J.

text:
    AUGUSTA GERLACH, Adm’r’x, &c., Respondent, v. JOHN H. EDELMEYER, et al., Appellants.

      Negligence—liability of sub-contractor for acts of servant causing injury to servant of co-contractor—when not negligence per se to pass under elevator in motion—accident, when evidence of ' negligence—workmen, when not co-employees.

    Defendants contracted with a firm of builders who had undertaken the erection of a certain building, to hoist their brick, mortar, &c., and furnished therefor a boiler, engine, and elevator, and an engineer, who was selected and paid by defendants, and whose work they superintended. Plaintiff's intestate was employed as a workman upon said building by a sub-contractor who had undertaken to perform a portion of certain other work, sublet by said firm of builders. While plaintiff's intestate, in the course of such employment (viz. : while carrying certain beams between the guides of said elevator, which beams were too long to be otherwise carried), and under an arrangement with said engineer, and after the engineer had said “ go ahead now,” was passing under said elevator, which, at the time, was going up, the engineer’s foot slipped from the brake and the elevator fell upon plaintiff’s intestate, inflicting injuries from which he died,—Held, that said engineer was defendant’s servant, and they were responsible for his negligence; that, under the circumstances, it was not per se an act of negligence on the part of plaintiff’s intestate to pass under the elevator while in motion; that the happening of the accident affords evidence, in the absence of explanation, that it occurred from want of care; that the intestate and said engineer were not fellow-servants engaged in a common employment.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided April 4, 1881.
    ■ Appeal by defendants from a judgment, entered on the verdict of a jury, and from an order denying a motion on the judge’s minutes for a new trial.

      The action was brought by the plaintiff, as administratrix, for negligence, causing the death of plaintiff’s intestate.
    The defendants were copartners in the business of manufacturing and operating hod-elevating machines.
    On October 17, 1879, Murphy & McGfinty, a firm of builders, were erecting a building on the north side of Eighteenth street, in this city. Murphy & McGfinty had a contract for all the work; they sublet a contract for the carpenter work to one John Doyle ; Doyle sublet a contract for the framing to Bauman & Nothing, who employed plaintiff’s intestate.
    The defendants, for a certain sum per day, contracted with Murphy & .McGfinty to hoist their brick, mortar, &c., and, in pursuance of such contract, furnished a boiler, engine, elevator and engineer. Said engineer was the servant of defendants, was selected and paid by them, and they superintended his work.
    The elevator consisted of a platform, which was moved up and down between two wooden guides, one at each end, and was suspended on a rope fastened to a ring above the rack. The rope passed up to the upper part of the building, over two wheels, and down to an engine, where it was attached to a drum or cylinder. The elevator was hoisted by revolving the drum and reeling up the rope on it. For this purpose steam power was used.
    The injuries which resulted in the death of plaintiff’ s intestate were caused by the breaking of the rope, in consequence of which the elevator fell and struck him.
    The breaking of the rope was due to the failure of the engineer, owing to the slipping of his foot from the ' brake, to stop the engine at the proper time, which resulted in the elevator striking the wood-work at the top of the building with such force that the rope was broken.

      In the afternoon of said, day, the framers were carrying into the building beams, some fifteen and some twenty-three feet long. The short beams were first -carried around and to the east of the elevator, which was then in operation. After this Gerlach and one Hanson, a co-servant, attempted, to carry in one of the long beams around the elevator, but could not for want •of room. Then there occurred, in the presence of Hanson and Gerlach, some conversation between one ■George Sauer, foreman for Bauman & Nething, and the engineer, with reference to carrying in the beams between the guides, under the elevator. The engineer refused to stop the elevator altogether, but said, in effect, that when the platform was up they could go under, and that he would hold it up for them until. they passed through.
    Hanson and Gerlach carried in two or three long beams in this manner.' Finally they took up a beam, Hanson carrying the first end on his shoulder, and Gerlach following with the other end in the same manner. When Hanson reached the elevator it was down, so they had to wait until it was loaded, Avhen the engineer started the engine, and, as the elevator rose, said “go ahead now.” They passed through ; and, just as Gerlach came under the elevator, the platform, with the hods, falling, struck him and inflicted the injuries from which he died.

      Hugh Heavy, attorney, and James OlarJc, of counsel, for appellants.

      Baldwin & Blackmar, for respondent
   By the Court.—Trttax, J.

The learned counsel for the defendants, at the close of the testimony for the plaintiff, moved to dismiss the complaint on the following grounds: First; that the evidence showed that at the time of the injury defendants’ elevator was hired to, and was in the possession of, and subject to the control of third partiesand while it was so hired and under such control, defendants were- not answerable for any accident or injury resulting from its use. Second ; it was an act of negligence per se, for plaintiff’s intestate to pass under the elevator while it was in motion. Third ; that there was not sufficient evidence to be submitted to the jury of negligence on the part of the persons having charge of the elevator while it was in 'motion. Fourth; that the plaintiff’sintestate and the person running the elevator were so engaged in a common employment, that each, so far as his immediate employer or that of the other was concerned, took upon himself the risk of injury by the other’s negligence, without recourse to such employer.

The motion was denied and the defendants duly excepted. The motion was renewed at the close of the case, with the same result.

I am of the opinion that the motion to dismiss the complaint on the first ground was rightly denied. Dittmer, through whose negligence the accident happened, was the defendants’ servant, paid by and controlled by them. They hired him; they could discharge him. This is the true test by which to determine who is the master, and consequently, who is liable to the party injured (Crockett v. Calvert, 8 Ind. 127 ; Samuel v. Wright, 5 Esp. 263; Quarman v. Burnett, 6 Mees. & W. 499 ; Michael v. Stanton, 3 Hun, 462; Annett v. Foster; 1 Daly, 502, and cases there cited).

I am also of the opinion that it was not in itself an act of negligence for the plaintiff’s intestate to go under the elevator, at the time and under the circumstances disclosed on the trial. The testimony shows that the intestate was told by the defendants’ servant' that he might go under, and that he had done so several times before the accident happened.

Contributory negligence consists in a want of ordinary care on the part of the person injured, which want of care is the immediate and proximate cause of the injury complained of (Wasmer v. Del., &c. R. R. Co., 80 N. Y. 212).

Any person that is injured contributes something to the injury—he contributes the body that receives the blows, if nothing more. But this is not the kind of contribution that the law means. The law is well stated in Shearman & Redfield on Negligence (§ 25), as follows : “One who is injured by the mere negligence of another cannot recover at law, or in equity, any compensation for his injury, if he by his own, or his agent’s, ordinary negligence, or willful wrong, proximately contributed to produce the injury of which he complains, so that but for his concurring and co-operating fault the injury would not have happened to him; except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former is exposed, to use a proper degree of care to avoid injuring him.” See also on this point, Radby v. London, &c., 1 App. Cas. 754; 18 Eng. Rep. 37.

Ordinary care is such a degree of care, skill and diligence, as men of ordinary prudence, under similar circumstances, usually employ (Brown v. Lynn, 31 Penn. 512), and it is to be determined with reference to all the attendant circumstances of the transaction (Ernst v. Hudson River R. R. Co., 35 N. Y. 27).

The evidence in the case at bar shows that Dittmer, in substance, had told the intestate that he might go under the elevator. If Dittmer had been more careful the accident would not have happened. He testified that he never saw such an accident before. The intestate, therefore, exposed himself to no danger from the ordinary working of the elevator.

The learned judge charged the jury, among other things, in substance, that if the intestate went under the elevator in the course of his employment, at a time when the engineer (Dittmer) had told him he might go, the mere fact that he went under the elevator was not of itself contributory negligence. " To this the defendant excepted. The judge, in a subsequent portion of his charge, left the question of the intestate’s negligence to the jury. It was not error to charge as was charged, nor was it error to refuse to charge that the intestate’s negligence contributed to the injury, and therefore the plaintiff could not recover (Hawks v. Winans, 42 Super. Ct. 451; affirmed, 74 N. Y. 609).

The motion to dismiss the complaint on the third ground was rightly denied. The learned judge charged that, prima facie, the accident happened through Dittmer’s negligence, and that the burden of proof was on the defendants to show that Dittmer was not negligent. This, I think, is a correct statement of the law in this case. The elevator was under the management of the defendants’ servant, and in the ordinary course of events the accident would not have happened, if their servant had been careful. The happening of the accident, therefore, affords evidence, in the absence of explanation, that the accident happened from want of care (Mullen v. St. John, 57 N. Y. 567, and cases there cited ; Thompson on Negligence, 1227 et seq.).

The motion to dismiss on the fourth ground was rightly denied. The intestate and Dittmar were not fellow-servants, nor were they engaged in a common employment (Svenson v. Atlantic Mail, 33 Super. Ct. 277 ; affirmed, 57 N. Y. 108 ; and cases there cited).

The judgment and order are affirmed, with costs.

Sedgwick, Oh. J., concurred.


text:
    JULIUS H. HOMER, Respondent, v. CHARLES EVERETT, et al., Appellants.

      Negligence—duty of owner to person invited,by him upon his premises,— Judge's charge.—New trial.

    In an action to recover damages for injuries received from falling into a well-hole filled with hot water, on defendant’s premises, the evidence, showed that it was unusual .to have such a well-hole, a receptacle for water, in an engine room. Held, that if it were error to charge the jury that the evidence showed such to be the fact,' such error was cured by a subsequent charge that defendants had a right to construct the well-hole in the manner they did, and to maintain it without any cover, and to utilize it for the purpose for which it seemed to have been intended.
    The judge charged that when defendants called plaintiff into the room, “it became their duty either to cover and effectually cover the well-hole, or else to call the attention of the plaintiff to its existence, and to give him proper warning concerning it,” and exception was taken to that part of the charge in italics. Held, the judge having also charged that if plaintiff did not exercise ordinary care and precaution, if he did not use his eyes and ears, if the existence and nature of the well-hole was so plainly and palpably visible that any man, exercising ordinary care and precaution, should and would have seen it, or if its existence was brought to plaintiff’s attention by the noise made by the steam, or if express warning was given him and he then stepped into the hole, he could not recover—that no harm was done by the part of the charge excepted to.
    It is the duty of .the owner or occupant of a building to maintain it in such condition that those persons whom he invites upon the premises shall not be injured by any defect in the building.
    O-eneral objections to the admission of testimony will not be considered on a motion for new trial.
    The admission of irrelevant and incompetent evidence by which, plaintiff is not injured, is not ground for new trial.
    Before Sedgwick, Ch. J., and Trtjax, J.

      Decided April 4, 1881.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages for an injury sustained by plaintiff, while at work as a machinist, upon defendants’ premises, repairing a defective steam-engine. Plaintiff was sent for by defendants, who were hotel-keepers, for the purpose of repairing the engine in the cellar of their premises, and while so engaged, he stepped into an open hole in the floor of the engine-room, containing hot water, left unprotected, by which one leg was seriously scalded, producing, as claimed by plaintiff, a long and painful illness and large pecuniary loss. Defendants denied the imputed negligence, and averred that plaintiff was- injured by his own carelessness.
    The jury rendered a verdict for the plaintiff for $9,500.

      Erastus New, attorney, and William A. Beach, of counsel, for appellants.

      Douglas A. Lemen, Jr., attorney, and Charles P. Miller, of counsel, for respondent.
   By the Court.—Truax, J.

The exceptions to the judge’s charge are not well taken. The learned judge charged the jury that “all the evidence shows that the existence of such a well-hole, a receptacle for water, was something unusual to have in an engine-room.” All the evidence does show this. It was téstified to by the plaintiff’s witnesses, and was not disputed by those of the defendants. Yet, if there be any error in this portion of the charge, it is cured by the learned judge! afterward charging the jury that “ the defendants had a right to construct this well-hole, in the manner they did, and they had a right to maintain it without any cover, they had a right to utilize it for the purposes for which it seems to have been intended.”

The learned judge further charged the jury, “the moment they (the defendants) call the plaintiff into the room, it became their duty either to cover, and effectually cover, this well-hole, or else to call the attention of the plaintiff to its existence, and to give him proper warning concerning it.” The defendants excepted to that part of the above which is in italics, lío harm was done the defendants by the whole of the judge’s charge. He charged the jury, in substance, that if the plaintiff did not exercise ordinary care and precaution, if he did not use his eyes and his ears, if the existence' and nature of the well-hole was so plainly and palpably visible that any man exercising ordinary care and precaution should and would have seen it, or if its existence was brought to plaintiff’s attention by the noise made by the steam, or if express warning was given him and he then stepped into the hole, he could not recover. And he left it to the jury to determine the facts.

This was a plain statement of the law applicable to this case. The law is well settled, that it is the duty of the owner or occupant of a building to maintain it in such condition that those persons whom he invites upon the premises shall not be injured by any defect in the building (Coughtry v. Globe Woolen Co., 56 N. Y. 124; Swords v. Edgar, 59 Id. 28 ; Clancy v. Byrne, 56 Id. 133).

The charge as a whole conveyed to the jury the correct rule of law on these questions, and, therefore, the judgment will not be reversed (Caldwell v. N. J. Steamboat Co., 47 N. Y. 282; Losee v. Buchanan, 51 Id. 492).

The defendants objected generally to numerous questions at the time they were asked; their objections were overruled and they duly excepted.

These objections are not available on a motion for á new trial (Fountain v. Pettee, 38 N. Y. 184, and cases there cited).

The defendants objected to the admission of certain testimony, on the ground that it was irrelevant and incompetent. These objections were overruled and the defendants duly excepted. The defendants were not injured by the admission of this testimony, which they say is irrelevant and incompetent, and, therefore, a new trial will not be granted them (Townsend v. Narragansett Ins. Co., 36 Super. Ct. 170 ; Downs v. N. Y. C. R. R. Co., 56 N. Y. 664). This testimony was competent in rebuttal to contradict defendants’ witness, Kennedy.

At the close of the plaintiff’s case the defendants moved to dismiss the complaint on the grounds: 1st. That the evidence does not show any negligence on their part; 2d. That the evidence shows contributory negligence on the part of the plaintiff. This motion was renewed at the close of the trial. The motions were denied and the defendants duly excepted. '

The questions of the negligence of the defendants, and of the contributory negligence of the plaintiff, were properly left to the jury (Clancy v. Byrne, 56 N. Y. 129).

The other exceptions taken by the defendants were not well taken.

Judgment and order affirmed, with costs.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    ORRIN A. BILLS, et al., Appellants, v. THE NATIONAL PARK BANK OF N. Y., Impleaded, &c., Respondent.

      Attachment—what claims may be attached as debts.— Certification of check—effect of.—Bank account—when cannot be attached, depositor's certified check to amount of balance being outstanding.

    A claim to be attachable must be a legal debt, as contradistinguished from an equitable demand, and must be absolutely payable at present, or in the future, and not dependent on any contingency; also, the claim must be in existence at the time of the execution of the warrant.
    When a bank certifies and issues a depositor’s check, payable to his own order, to an amount equal to his balance on deposit, and charges the same in its account to him, the deposit account is thereby balanced and closed, and the debt of the bank as a depositary is so far extinguished that an action will not lie upon it, unless the certified check be proved to have been lost, or be produced and canceled at the trial. The bank, by such certification, &c., becomes liable upon a negotiable instrument to any one who may become the bona fide holder thereof.
    The above principles applied to the following state of facts: The depositor, a corporation, drew its check for the amount of the balance of its deposit account, payable to the order of R. as its assistant treasurer, which check, upon presentation to the bank, was certified by it and returned to R., who retained it in his possession, as such assistant treasurer, for several days, and until a warrant of attachment against the company had been duly served upon the bank; and thereafter, and on the same day that the warrant was so executed, he deposited the said check, together with other securities belonging to the company, to his individual credit in the bank, and the amount of such deposits was thereafter drawn out by him from time to time, and used to pay just debts owing by the company. Held, in an action brought by the attaching creditor against the bank, that the claim of the company against the bank at the time of the execution of the warrant was not such a debt as could be reached by the service of the attachment on the bank, and that the deposits made by the assistant treasurer, subsequent to the execution of the warrant, could not be reached thereby.

      Before Sedo-wick, Ch. J., Freedman and Truax, JJ.

      Decided April 4, 1881.
    Appeal from judgment entered on report of referee in favor of defendant.
    This is an action brought pursuant to the Code, to enforce the levy of an attachment. The facts are fully stated in the opinion of the referee, as follows:
    “J. S. Bosworth, Referee.—The plaintiff having concluded the testimony on his part and rested, the defendant, the Park Bank, moves to dismiss the complaint. The principal question on this motion is, whether the testimony given establishes a cause of action against that bank.
    “ On or about April 30, 1875, the plaintiff, Bills, commenced an action in the supreme court of this State against the New Orleans, St. Louis & Chicago R. R. Co., on contract, and obtained a warrant of attachment in that action, directed to Wm. C. Conner (he then being sheriff of said city and county), and the said sheriff executed said warrant about 2.80 p. m. of that day (April 30), by exhibiting the same to said Park Bank and leaving with it a notice, in effect, that by the said warrant of attachment the said sheriff was required to attach and take into his custody ‘ all books of account, vouchers and effects relating to the property, debts, credits and effects of said defendant (the Railroad Co.), .. . . and that all such property, debts, credits and all rights and shares of stock, with all interest and profits therein or therefrom of the said defendant, now in your possession or under your control, are, and those which may come into your possession or under your control, will be liable"to said warrant of attachment, and are hereby attached by me. “t . . • And without in any wise waiving the attachment, requirement and demand above made, or in any way relieving or discharging you from the obligation or duty under which you are hereby placed, I having been informed that you have in your possession, or "under your control, money, bonds, collaterals or evidences of indebtedness, or other property, belonging to the said defendant, and. that you are indebted to the defendant in a certain sum of money, .... or thereabouts for .... do hereby particularly attach and require you to deliver to me the said property or money so in your possession or under your control, and to pay to me the said moneys so owing by you to said defendant, without delay. '. . .’
    “The warrant of attachment commanded the. sheriff to ‘ attach and safely keep all the property of the said defendant, the New Orleans, St. Louis & Chicago Railroad Company, within your (his) county, or so much thereof,’ &c.
    “ On-and prior to April 27, 1875, this railroad company kept an account with the Park Bank, and on that day the Park Bank was indebted to this company, on account of deposits of money made by this company with the bank, to the amount of $6,485.33, or thereabouts ; on that day, the railroad company drew its check on the Park Bank to the order of John M. C. Rodney, assistant treasurer, for $6,600, which the bank then certified to be good, and charged the amount to said railroad company, and delivered the check thus certified to Rodney. The railroad company kept an office in this city ; Rodney was its assistant treasurer, and was known to the Park Bank to be such officer. As such officer, he made the deposits that were made by (hat company in the Park Bank, and as such officer signed all checks drawn by that company on the Park Bank. Between the 27th and 30th of April, 1875, the railroad company made other deposits in this bank, amounting tó $2,068.26, and drew other checks on the bank, which the bank paid, amounting to $2,760.67 ; so that at the time the attachment was served, the bank would have owed the railroad company $5,793.53, and no more, if the certified check for $6,600 had not been certified by it, and been then outstanding. At the time the attachment was served, the Park Bank had no knowledge or notice as to what had become of the certified check or who owned it.
    “As matter of fact, the railroad company continued to own said check, and Rodney continued to be possessed of it as such assistant treasurer. On April 30, 1875, about the close of banking hours and after the said attachment had been served, Rodney individually opened an account with the Park Bank and deposited this check, and other drafts, being the property of the railroad company, to his individual credit; and subsequently drew checks on said bank, for the purpose of paying just debts owing by the company, and which checks were paid by the Park Bank, in amount equal to the deposit thus made to Rodney’s individual credit.
    “The plaintiffs claim, that at the time the attachment was served, the Park Bank was a debtor of the railroad company to the amount of $5,793.53, and that such debt was attached, and the Park Bank thereby became liable as such debtor to pay that amount to the plaintiffs as such attaching' creditor. The plaintiffs also insist upon their right to recover the amount deposited by Rodney to his individual credit, on April 30, 1875. For the present, I shall consider only the liability of the bank, arising upon the deposit account, and shall treat the certified check as being, in amount, the precise sum due from the bank to the railroad company at the time it was certified.
    “On that state of facts, the deposit account was balanced and closed, when the certified check was issued, and charged in the bank’s account to the railroad company. By certifying the check and delivering it certified, to the railroad company, the bank became liable upon a negotiable instrument, to any one who might become the bona, fide holder of it. The railroad company, on presenting the check to the bank, and a refusal by the latter to pay it, could sue the bank upon the check and recover, if no rights of third persons had intervened. The liability of the bank, upon and by reason of the deposit account, may not have been so completely extinguished, by reason of having certified the check for $6,600, but that an action would lie upon it, at the suit of the railroad company, on a return of the check to the bank canceled and a demand of the payment of the $6,600.
    “But the debt owing by the Park Bank, as depositary, was so far extinguished by the delivery of the certified negotiable check, that an action would not lie upon it, unless the certified check should be proved to have been lost, or should be produced and canceled at the trial (Burdick «. Green, 15 Johns. 247; Hughes «. Wheeler, 8 Goto. 77). Although in these cases the defendant’ s pleas are held bad, yet it was also held that the fact of there being an outstanding negotiable note, for the original debt, would defeat an action on the original debt, unless the note should be produced and canceled at the trial, and that such fact might be proved under the general issue (Hughes «.’Wheeler, supra, p. 81).
    “The cases, as- I understand them, hold that a debt (so called) owing to the defendant in the attachment suit, to be attachable, must be a legal' debt, as contradistinguished from an equitable demand ; and must be absolutely payable, at present, or in the future, and not dependent on any contingency. ‘ That cannot, properly, be called a debt, which is not certainly, and, at all events, payable either at the present or some future period’ {Drake, § 551).
    “ The so-called debt, which, in this case, the plaintiffs claim to have attached, on the facts existing when the attachment was served, was, presumptively, extinguished, so that no action would lie on it, at the suit of the attachment-defendant. The contingency, on the happening of which an action would lie against the Park Bank, on its original liability as depositary, viz.: the return to it of the certified check, canceled, affects the supposed debt itself, and its existence as an obligation.
    “The plaintiff Bills, as attaching creditor, could acquire no other or greater rights against the Park Bank, in respect to the liability of the latter on its contract as depositary, than the railroad company had, when' the attachment was served (Drake, § 245). It would seem to follow, that, as that company could not maintain an action and recover judgment against the Park Bank, without, as á condition precedent, returning the certified check canceled, the plaintiff, or sheriff, could not maintain such action, without performing the same condition ; and it was entirely out of their power to perform such condition.
    ‘ ‘ The Park Bank, at the time the attachment was served, wa's practically in the same condition as it would have been, if it was under no other liability than that of a certifier of the check, or that of a maker of a negotiable promissory note payable to the order of the defendant in the attachment suit, and who was sought to be held as such maker, on the service on him of a copy of the attachment, and a notice that such liability or indebtedness was thereby attached.
    “In several States, it has been held on principle-, uninfluenced by statutory provisions, that the maker of a negotiable note shall not be charged as garnishee of the payee while the note is still current (Drake> .§588).
    “ In Stone v. Dean (5 N. II. 502), the court said :
    “ ‘The reason of this rule is founded upon the negotiable quality of the paper. If the trustee (the0 maker of the note) could be charged in such a case, it might happen that either a bona fide purchaser of the note must lose the amount of it, or the maker, without fault on his part, might- be compelled to pay it twice.’
    “In Hutchins v. Evans (11 Vt. 541), being a case which arose when there was no statute, authorizing in terms, a maker of such a note to be garnisheed, the court said:
    “ 1 We ought not to hold the maker of the notes liable, unless he could rely upon the judgment as a complete defense against the notes. This he could not do, if, at the time of rendering the judgment, the notes had been already indorsed and the indorsee was not before the court. We cannot know that this is not the case. But if we could know that the notes were now in the hands of the payee, in order to hold the maker we must destroy the future negotiability of the notes, and thus put it in the power of the holder to impose upon innocent purchasers, or else enable the holder to defraud the maker by negotiating the notes after the payment in the attachment suit. There seems to be no other mode of securing the interests of all concerned, short of denying all right to attach, by this process, the interest in negotiable paper while current.’
    “ Hence, in this case, when Rodney, on April 30, 1875, was in the Park Bank,, after the attachment had been served on the bank, having this certified check and other securities, which he then deposited to his individual credit, the most the bank could have done, even if it had officiously exerted itself to aid the attaching creditor, would have been to refuse to receive it, and, as a condition of receiving it, have refused to credit it to Rodney on account, and have required him to surrender it to the bank, canceled. This would have been a mere brutum f ulmén. Rodney would have immediately negotiated it for value, and the bank would have been compelled to pay it to such transferee. The payment of it to such an assignee would have been an extinguishment of all liability of the bank as a certifier of the check, and upon its original liability as depositary. Such a result it was out of the power of the bank to prevent. Such being its condition when the attachment was served on it, it must be held, as I think, that it was not, in any proper sense of the word, a debtor of the railroad company at that time.
    “ If the bank was not a debtor of the railroad company, at the time the attachment was served, but subsequently became its debtor, a service made before the latter debt was created would not create a lien on such subsequently contracted debt. The attachment only creates a lien upon such property as is actually attached' by seizing and reducing it to possession, when susceptible of manual delivery; or by service of the statutory notice upon the debtor of the defendant in the attachment suit, or upon the person holding choses in action, which is the property of such defendant (DraJcey §§ 263, ■ 271; Rodgers v. Bonner, 45 N. Y. 379).
    “The recovery of a judgment in the attachment suit does not make the attachment operate as a lien upon property, which was not in fact attached. As was said in the Merchants’ and Traders’ Bank of Jersey City v. Dakin (51 N. Y. 519): ‘ The property seized, although a chose in action, is held by the attachment and the execution. The attachment and its service create the lien. The judgment determines that the lien shall be enforced to the extent of the payment of the debt. The execution is the continuance of the attachment lien, with the added and conclusive authority of the judgment’ (Lynch «. Crary, 52 N. Y. 181).
    “ In Clarke v. Goodridge (41 Yf. Y. 210), it was held, that the service of an attachment upon a bank, at the time holding collateral securities for a loan made to the defendant in the attachment suit, .which securities were the property of such defendant, and which subsequently produced a surplus of $4,800, and which attachment was served by leaving with the bank a copy of the attachment, and a notice that ‘all property, effects, rights, debts and credits of the sued debtor in their possession or under their control, would be liable to such attachment, and particularly that he attached the bank account and book debt due from the bank to the debtor,’ did not create any lien on such securities, which would enable the attaching creditor to reach this surplus, as against a receiver in supplementary proceedings, on another judgment against the. debtor, appointed subsequent to such levy (overruling Grreenleaf «. Mumford, 19 Abb. 469).
    “The court said (p. 213), that property capable of manual delivery is to be levied upon in like manner as under an execution. The sheriff must seize and take it into his possession. Property incapable of manual delivery is to be levied upon by leaving with the person holding it, a copy of the warrant of attachment, with a notice showing the property levied on (Old Code, § 235). This shows that an attachment only creates a lien upon such property as it is actually levied upon, either by an actual seizure of it or by the service of such a notice, in respect to choses in action, as will satisfy the terms of the Code. The fact that there was visible tangible property, upon which it might have been but was not levied, does not subject it to any attachment lien, where there was in fact no actual levy.
    ‘ ‘ When the bank received the certified check from Rodne'y, it received' the check as being his property.
    “ The bank opened an account with him, and passed it to his credit, and thereby contracted with him, in respect thereto, the same obligation that it does with every depositor who keeps an account with it. That obligation the bank has satisfied by paying Rodney’s check to an amount exhausting his credit as such depositor.
    “ By giving Rodney credit for such check, and paying his checks to an equal amount drawn against such credit, the Bank satisfied and discharged its liability as the certifier of such check.
    “The plaintiff seeks to recover of the Park Bank, on the theory that the bank, at the time the attachment was served, was indebted to the railroad company upon its deposit account with the bank, to the amount of $5,793.53. It is clear that it was not then so indebted. At that time, on the facts then existing, no action would lie against the bank on its contract as depositary. At that time, it was not in the power of the attaching creditor to do any act, which, being done, would make such an action maintainable. Neither the attaching creditor nor the railroad company has since done any act or acts which would enable an action to be maintained upon that liability. -
    “The certified check was not seized by the sheriff, and taken into his possession ; it was the property of the railroad company, and in its possession at the time the attachment was served. The bank, as the certifier of such check, was not subjected to any liability to the attaching creditor, by the service of the attachment that was made upon the bank. Subsequently to the service of the attachment, the bank credited the check to Rodney, on account, as being his property, and after that, satisfied its liability by reason thereof.
    “ However plausible the ground upon which the plaintiffs base their claims to recover, and notwithstanding the acumen and ability with which they have been presented and urged, I think they are shadowy and unsubstantial.
    “As to the other securities that were deposited by Rodney in the Park Bank at the same time that he de- ■ posited the certified check, I cannot perceive any ground on which the Park Bank can be held liable for them. When the attachment was served on the Park Bank, that bank did not possess them, or even know that they existed. The notice served on the bank did hot create any lien on securities which it did not then possess and of which it knew nothing. I cannot think that the Park Bank is under any liability in respect of such securities either to Bills as attaching creditor, or to the sheriff by reason and force of the notice served on the bank.
    11 In considering the motion to dismiss the complaint, I have regarded the evidence as tending to show that the Park Bank had good reason to believe, at the time Rodney opened the account with it in his own name, that the securities which he then deposited were the property of the railroad company, and that he made the deposit in his own name in order that he-might be able to discharge therewith certain liabilities of that company, which he deemed it a matter of great importance to pay as they matured. If the whole merits of the controversy depended on .the fact of the bank having this notice or knowledge, I do not think the verdict of a jury that it had such notice would be disturbed. But if the views before stated are sound, that fact can hardly be said to be material.
    “I conclude that the defendant is entitled to a dismissal of the complaint.”

      Holmes & Adams, attorneys, and George H Adams, of counsel, for appellants, among other things, urged:—
    I. It has been well settled that the relation between the railroad company and' the bank, so far as the deposit account was concerned, was that of creditor and debtor. An attachment will reach a debt owing to the defendant in the attachment suit; there was such a debt on April 27 due by the bank to the company, and that debt continued in existence as a debt, until the levy, unless, 1. The certification was an assignment of the debt; or, 2. By the certification of the check the debt was extinguished. There certainly was not in this case an assignment of the debt; the check as certified was drawn in favor of the maker; no assignee was named, and none was ever in contemplation; there was no intention to assign the debt or the deposit account, for Rodney says he took this measure solely for the purpose of keeping money out of the bank; and the- company at all times had possession of the check and had the right of enforcing the claim against the bank, whether the claim was upon the check or upon the deposit account. Unquestionably, a check, when certified, may sometimes operate as an assignment ; as for example where the check is given to the payee, and he, instead of getting the money upon it, obtains the certification; in such a case the certification is equivalent to an acceptance of a bill of exchange, which may be sometimes held to constitute an equitable assignment. But no such question can arise where there is no payee named and no assignee in contemplation. Certification has been discussed in reference to the question, whether a maker giving a certified check to the payee is discharged of his debt to the payee ; in other words,- whether' the payee, by accepting the check certified, accepts an assignment of the bank’s debt to the drawer in payment of his demand against the maker. This has been thought to be the effect where the payee himself goes to the bank, and instead of getting money for the check obtains the bank’s certification. But it has never been held to operate as an assignment binding upon any one where the maker himself obtains the certification of his own check. The distinction is observed by Sedgwick, J., in Thompson v. Bank (13 J. & 8.17); so, too, in Espy v. Bank (18 Wall. 620). The intention, after all, governs, and there was no intention by the company to assign by this check any part of this deposit to any one ; nor were there any circumstances to lead the bank to suppose any such assignment to be contemplated. The certification of the check by the bank did not operate as an extinguishment of its indebtedness to the company. The certification being made to the depositor, upon a check to the depositor’s order, which is held by the depositor, cannot be said to extinguish that indebtedness which arose by reason of the deposits ; it is not creating a new obligation, at least between the company and the bank, for the check in this instance is certified for a greater amount than the deposit balance, and the company could not compel the bank to pay to it, the company, the amount of the check simply because of the certification. Such certification, though binding as to third persons, cannot be the creation of an obligation between the parties. If, then, the certified check is good as between the parties only for the amount of the true balance, the certification is no creation of a new indebtedness; it is at most another evidence of the then existing indebtedness ; the indebtedness is the balance of deposit, and the mere giving of any number of agreements to pay it would not change it as between the parties. The views of the subject (i. e. certification) in the earlier cases in this State are generally unsound. But by Espy v. Bank of Cincinnati, 18 Wall. 604; Marine N. Bank v. City Bank, 59 N. Y. 72, and Thompson v. Bank, 13 J. & S. 17, and by the report of the latter case in the court of appeals (see 22 Alb. L. J. ), the effect of certification may be said to be settled as follows: By certification the bank guarantees (1) the signature of the drawer; (2) that there are sufficient funds of the drawer to meet the check; and (3) that it will pay to a bona Jide holder on presentation the amount for which the check was originally drawn by the maker. These decisions, in reasoning and principle, negative the affirmations of text writers like Drake, and the dicta in the reports in other States and in some of our own reports, that a certification in itself may constitute an assignment or extinguishment of the original debt. But as the rights of third persons do not affect us here, it cannot be difficult to ascertain ¡¡ust what effect, the certification has upon the debt, as between the company and the Park Bank. This certification may be said to suspend the right of the Railroad Company to call for payment of the debt so long as it fails to present the check; it cannot be said to suspend the debt, but its payment only. But this suspension ceases as soon as the company delivers up the check to. the bank; so, too, it would cease if the check was taken to the bank by the company and the certification erased; or if while in the company’s hands the check was destroyed. It cannot make any difference in legal effect, if it appears that at the time of certification, the bank, for the convenience of its clerks and of its internal affairs, makes a deduction from its depositor’s account of the amount of "the check, and on his delivering it up again, the bank then makes another entry, adding the amount of the check to the account. It has been said that the bank -by certification guarantees to pay a bona fide holder on presentation the amount of the check, provided that amount, is what the check was drawn for. To meet this responsibility the bank may be said to have rights over its depositor’s balance exactly commensurate with this guaranty or responsibility on its part to the holder; the bank’s rights can, surely be no greater than this responsibility ; its right is then merely to retain so much of its depositor’s balance, to refuse to pay so much of its debt to its depositor, until the check certified has been properly presented for payment, or until its responsibility thereon has ceased. It may be said to have a qualified sense a lien upon the deposit. If it amounts to a lien, it needs no authorities to determine that an attachment will reach property subject to a lien, (but see Brownell v. Carnly, 3 Duer, 9). Yet there was no lien, no right even of retention, if at the instant of attaching the bank was not as matter of fact liable to any one on the certified check. And this indebtedness or balance was not subject to any incumbrance or claim, if that contingency or possibility upon which the bank might retain it never happened, and could never happen. A supposed case was urged by the bank below as a test, and appears in the referee’s opinion, viz.: what would have been the effect if Rodney, instead of going to the bank with the check on April 30, had passed it to an innocent holder for value % It may be answered, that it is indisputable that in such a case the bank on payment would be entitled to appropriate so much of the company’s balance. That is the contingency, which, in the supposed case, would have happened ; the quasi lien would become a complete right of enforcing it. But the contingency not only does not happen in fact, but, as said above, there arises at once an impossibility of it ever happening. Not only is the check not transferred to an innocent holder, but the company holds it at all times in its possession, and after the attachment itself goes to the bank and delivers it up. The referee having nonsuited the plaintiffs, it must be presumed in their favor, that when Rodney went to the bank on the 30th of April, he went as the company, and was the company, and held in his hands, as the company, this certified check.
    II. This attempted “test” does not afford us any assistance ; it imports into the discussion an element, which, if it existed in fact, would unquestionably lead to a result different from that claimed by us ; and that different result would be reached solely because of the new element; whether the company, the depositor, held the check at. all times and returned it to the bank, or whether a transferee held it, manifestly makes all the difference in the world ; in one case, for example, the company could sue for the deposit, in the other case it could not. The defense that the check was in form negotiable does hot affect the status of the indebtedness, because it was never negotiated. The check cannot be said to have been transferred to Rodney ; he repudiates such a claim utterly; he never exercised any dominion over- the check, as an individual ; he never claimed that it was his; he says that it was at all times the company’s property, and that when he deposited it, it was still the company’s property, and was to be used and was used by the company. There was no legal title in another to be got rid of before the company could sue at law, as there was in Thurber v. Blanck (infra), and Greenleaf v. Mumford, and in this case the company at the time of the levy could have sued the bank for its deposit, which brings us within the rule laid down by Church, Ch. J., in Thurber v. Blanck (50 N. Y. 86).
    III. As to the effect upon the company and the bank of the certifying of the check, it may be said that in all cases bearing upon certified checks, it will be found that such certification has been held to create a relation like that arising from the acceptance of a bill of exchange (Espy v. Bank of Cincinnati, 18 Wall. 604). It is a material inquiry, then, to ascertain the effect of acceptance of a bill of exchange upon an indebtedness due by the acceptor to the drawer. The giving of an acceptance or an accepted bill, or a note by the debtor to his creditor, has never been held to be a payment or an extinguishment of the debt, unless there was an express agreement that it should be payment (Noel v. Murray, 13 N. Y. 168 ; Byles on Bills, 381; Blakely v. Jacobson, 9 Bos. 140 ; Elwood v. Diffendorf, 5 Barb. 408 ; Porter v. Talcott, 1 Cow. 359; Sheey v. Mandeville, 6 Branch, 253). All these authorities go to the point that if the Park Bank had refused to pay to the company the amount of the balance due, or at the moment the levy was made, on April 30, 1875, the company could have sued the bank on the original deposit indebtedness, and disregarded the check and the certification, so long as it was held by the company. This brings the case completely within the test put by Church, Ch. J., in Thurber v. Blanck, whether or not the defendant in the attachment could, at the instant of the levy, have sued the garnishee for the debt; if he could then the attachment is effectual; and that the company could have sued in this case is now beyond question. The cases of Burdick v. Green (15 Johns. 247), and Hughes v. Wheeler (8 Cow. 77), cited by the referee, do not sustain the proposition there made as to the extinguishment of the debt upon the certifying of the check. They both hold that an action would lie upon the original indebtedness, and that a plea to the declaration on the original indebtedness, that the defendant gave the plaintiff an outstanding previous note, is bad. These cases say, that if on the trial the plaintiff cannot satisfactorily account for the note, he should not be allowed to recover; but the point is that the cause of action exists, notwithstanding the note or certified check; so that, under these authorities, the railway company could have sued the bank for its deposit at the moment the levy was made, and its possession of the check would have entitled it to recover. The attaching creditor has the same right. The referee’s authorities, to the effect that the maker of a negotiable note shall not be chargeable as garnishee of the payee, go no further than to hold that the maker shall not be charged while the note is outstanding and cannot be presented at time of trial. It is only because there was a present danger, in those cases, that the maker might have to pay his debt twice, that the attaching creditor failed in the proceeding to enforce the levy. When this danger is removed, or is non-existent at the trial, the implication of these cases is that the attachment would be good. The ruling went on the particular facts of those cages.
    IY. The appellants call attention to the following authorities: Drake on Attachments, § 601; citing Langley v. Berry (14 N. H. 82); Id. § 599; citing Camp v. Clark (14 Vt. 387); also 1 Dana, 580; 24 Vt. 363 ; 22 Iowa, 565; 6 N. H. 572; 3 Conn. 27; Wood v. Bodwell (12 Pick. 268); Id. § 223 ; Id. § 525 ; citing Briggs v. Block (18 Mo. 281); Brown v. Foster (4 Cush. 214; Id. § 615).
    Y. Whatever may be the meaning and legal extent of a certification, the law of this case is definitely set-sled by Kelly v. Roberts (40 N. Y. 432). The claim made by defendant’s counsel that Rodney held the legal title to the -certified check is untenable. It does not appear that the company, or Rodney as treasurer, ever indorsed the check and delivered it so indorsed to Rodney ; he says he held it as the company. For all that appears he indorsed it as assistant treasurer while at the bank on April 30; the defendant must show, in the face of the presumptions attaching to the transaction, an indorsement for delivery, and a delivery. As bearing upon the questions discussed in connection with Kelly v. Roberts, see these cases: Cushman v. Haynes (20 Pick. 132); Mayor v. Chattahouchee Bank (51 Georgia, 325) ; Freund v. Importers, &c., Bank (12 Hun, 540); Taacks v. Schmidt (18 Abb. Pr. 307).

      Barlow & Olney, attorneys, and Francis C. Barlow, of counsel, for respondent.
   Per Curiam.

Judgment affirmed, with costs, upon opinion of referee.


author: Per Curiam;:

text:
    RICHARD PARKHURST, Appellant, v. ABRAHAM WOLF, Respondent.

      Pleading—allegations necessary to charge asiignee of term or lease, on covenants.

    The complaint duly stated that in February plaintiff’s assignor rented certain premises to B. & Bro.; that in December of the same year, B. & Bro. “ made an assignment of all their effects to the defendant in this action, who duly accepted the same;” that defendant, “as assignee, entered into and occupied the premises.” Held, in an action upon the covenants of the lease, that the above allegations were insufficient to charge defendant as assignee of the term or lease.
    Before Freedman andTRUAX, JJ.

      Decided April 4, 1881.
    Appeal from judgment and order sustaining defendant’s demurrer to complaint.
    This is an action to recover for rents of certain premises in the city of New York on a contract set out in the complaint, and falling due during the occupancy of the defendant, Abraham Wolf, the assignee of Philip Bick & Bro., the original lessees. The plaintiff claims by virtue of an assignment from the original lessor.
    The following opinion was delivered by the court at special term:
    Sedgwick, Ch. J. “Whether the assignment was in trust for creditors or for defendant’s personal benefit, I find no allegation in the complaint that the lease referred to was assigned by it. The complaint alleges that the firm “ made an assignment of all their effects to Abraham Wolf, the defendant in this action, who duly accepted the same.” There is no allegation that at the time of the assignment he was in possession of the lease or the term. The complaint does state, that on February 16,1877, the assignor of plaintiff rented, by a written agreement, premises, &c., described in the agreement, but this, at the most, is a piece of testimony creating the presumption that the lease continued in the firm’s possession down to December, when the assignment was made, and the defendant is not to be concluded by a statement of a presumption in a pleading where he has not opportunity to offer testimony or plead it in defense.
    “ There is no allegation that the firm was in possession of the premises described in the agreement, at the time the assignment was made, or that they transferred the actual possession to the defendant.
    “ The complaint goes on to state that the defendant, ‘as assignee, entered into and occupied the premises.’
    “It is immaterial whether he entered as assignee, unless he was in fact assignee ; moreover, his entry as assignee may have made him liable to the real holder of the term or assignor of the agreement rather than to the plaintiff.
    “ There, therefore, seems to be no statement sufficient to show that the defendant was bound .by the covenants of the agreement. The complaint does not profess to be an action for trespass, or for use and occupation simply; since, through the defendant’s occupation, there was an outstanding term under the agreement.
    “As against the pleading this must be considered the fact.
    “ Demurrer sustained, with leave to amend on payment of costs.”

      Stearns & Ames, for appellant.

      McDaniel & Souther, attorneys, and O. E. Souther, of counsel, for respondent.
   Per Curiam;:

The judgment and order should be affirmed, with costs, on the opinion delivered at special term.