text:
    Moses Chamberlain, Plaintiff and Respondent, v. Jane R. Dempsey, (who was impleaded with William D. Salisbury et al.,) Defendant and Appellant.
    Where, upon the trial of an action for the foreclosure of a mortgage upon ' real property, the Judge directed judgment for the plaintiff, without, however, awarding costs, and ordered a reference, to ascertain the amount due the plaintiff and whether there were any prior liens, &c.; and upon the coming in of the report the plaintiff applied to another Judge, without notice to the other parties, and obtained final judgment awarding costs: Held, that the judgment was unauthorized, and should be reversed on appeal. Whether the first decision was intended to be final or not, it did not warrant such a judgment. The Judge before whom the cause was tried, alone is competent to pass on the question of costs.
    Before Robertson, White and Barbour, J. J.)
    Heard, June 11, 1862;
    decided, October 17, 1862.
    This action was brought to foreclose a mortgage. The facts> are fully stated in the report of a previous decision in the cause, (ante, 212,) on which a new trial was ordered. Upon the second trial, the plaintiff admitted the answers of Delaplaine and Platt, and presented the issues raised by the defendant Dempsey as the only issues in the cause. After the trial, the plaintiff entered judgment, as stated in the following opinion; and the defendant Dempsey again appealed to the General Term.

      George R. Thompson, for defendant, (appellant,)
    besides presenting points on the merits, urged that the judgment was erroneous, because it was entered solely on the Eeferee’s report computing the amount due, and did not refer to the trial, and was rendered by a Judge who did not try the action, and was not based upon the judgment rendered at the trial; and that the plaintiff had fallen into the same error pointed out by the General Term on the former appeal in this action. (See 14 Abbotts’ Pr., 241; S. C., ante, 212; Lawrence v. Farmers’ Loan & Trust Co., 15 How. Pr., 57.)

      Wm. M. Allen, for the plaintiff, (respondent.)
   By the Court—Barbour, J.

This action, for the foreclosure of a mortgage upon real estate, was tried before Justice Mohcrief, without a Jury, and decision reserved. Subsequently, and on the 12th of April, 1862, the Justice filed his findings of fact and conclusions of law, the latter of which were as follows :■

First. That the plaintiff is entitled to a judgment of foreclosure and sale, for the purpose of discharging the amount of principal and interest due upon the mortgage, together with the costs of suit.
Second. That the plaintiff is not entitled to a judgment for any deficiency.
Third. That it be referred to Hon. Murray Hoffman, as sole Eeferee, to ascertain and report the amount of principal and interest due to the plaintiff upon such mortgage; and also to ascertain, and report the amount due upon the mortgage described in the answer of the defendant, George W. Platt; and also to ascertain and report whether there are any prior liens, by mortgage, upon said premises, and whether said prior mortgages are due.

On the same day, an order was made by Justice Moucrief, referring the cause to Murray Hoffman, to ascertain and report upon the matters mentioned in the third conclusion of law, as therein indicated.

On the 22d of April, the Beferee made his report upon the matters referred to him, and also, by consent of parties, reported other facts and details not called for by the order of reference ; which report was filed on the 24th of April, and notice thereof given by the plaintiff’s attorney to the other attorneys in the action; and, no exception to the report having been filed, the plaintiff’s attorney, eight days thereafter, applied to another Justice, without notice to defendants, for a judgment, and the same was entered upon his direction. The judgment does not allude to the trial, nor to the findings and conclusions of Justice Moecrief, but states, by the way of inducements, that an order of reference to Murray Hoffman had been made, and his report filed, setting forth, in brief, its contents, that eight days had expired since such filing, and no exceptions had been filed. The judgment is in the ordinary form, and contains various directions not specifically covered by the conclusions of law of Justice Moxceief ; among which is one providing for the payment to the plaintiff and to two of the defendants, of some four hundred dollars, out of the proceeds of the mortgaged premises, for then costs and disbursements in the suit.

It thus appears that the cause was tried, at least in part, before one Judge, who found some facts, and arrived at certain conclusions of law, and then sent the case to a Beferee to ascertain and report other specific facts; that, upon the coming in of such report, and, so far as appears from the record before us, on that report alone, and without an examination of the pleadings, proceedings, testimony, or even of the findings and conclusions of the Justice before whom the trial had been partially had, another Justice directed the entry of a judgment, providing, among other things not determined by the conclusions of the former, that a large sum should be paid out of the avails of the sale, and therefore, by the appellant, by way of costs.

If w.e were to hold that the case was, virtually, decided by the findings and conclusions of Justice Moeceief, then, it- is easy to see, the direction in the judgment for the payment of costs is erroneous, inasmuch as Justice Morcbtee did not, in his discretion, (Code, § 306,) decide that the plaintiff or either of the defendants was entitled to recover such costs, and therefore, it may safely he inferred, refused to award them. Or, if we assume that his decision was not intended to "be a final determina^ tion of the whole matter, then we have before us the anomaly of a trial and decision of a portion, only, of the issues in a cause by one Judge, and its final determination by another; and that, too, upon hearing but one of the parties, without notice to the others, and, so far-as the case presented, shows, without any knowledge as to any prior proceedings in the cause, aside from what are contained in the report of the Beferee. Indeed, in either ease, the judgment is not warranted by the findings and' conclusions of the Justice before whom the cause was tried, who, alone, is fully competent to award costs or withhold them, in his discretion.

For these reasons, and those given by the Chief Justice and Justice Bobebtsor in their opinions upon a former appeal in this action, I think the judgment should be set aside, with costs, leaving the parties to move for a new trial, or otherwise, as they may be advised.

Bobebtsor and White, J. J., concurred in this opinion.


source: Caselaw Access Project

author: By the Court—Robertson, J. Monell, J.

license: Public Domain

text:
    The East River Bank, Plaintiffs and Appellants, v. Thomas Kennedy, Defendant and Respondent.
    1. The indorser of a promissory note which was past due, induced the holders- of it to sue- the maker; and, pending the action, and with the assent of the indorser;, the plaintiffs’ attorneys received from the maker a part payment and his note for the residue, upon a written stipulation that proceedings should be stayed, but if the new note should be unpaid at maturity judgment should be entered in the action against him; and they thereupon surrendered the original note, but nothing was said about releasing the indorser.,

      Held, in an action brought by the same plaintiffs against such indorser, that the surrender of the original note being explained by the plaintiffs’ attorney as having been inadvertently made, these facts did not constitute any agreement to discharge the indorser.
    2. Upon such evidence it was error to leave it to the Jury as a question of fact whether an agreement to discharge the indorser was made.
    3. An authority given to attorneys to sue the maker of a note does not empower them to release an indorser without satisfaction or the consent of their clients. *
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 6;
    decided, November 29, 1862.
    This action was brought to recover the amount due on ■ a promissory note of one Billings, indorsed by the defendant. The complaint stated, in the usual mode, facts upon which the plaintiffs might recover, if the note" were still in their possession. But in addition thereto it alleged that the plaintiffs’ attorneys delivered it up to the defendant by inadvertence; that no consideration was paid by him for its surrender; that it never was agreed by the plaintiffs that he should be released from his indorsement; that the attorneys received such note merely to prosecute the maker and had no power to release the indorser. It demanded both a delivery of the note and judgment for the amount due on it. It would be substantially an action for the conversion of a note, were there any allegations to that effect, or even" of a demand'and refusal.
    The complaint also alleged that the plaintiffs, had previously brought an action against the maker of the note, and that he, in consideration of a stay of proceedings for sixty days in such action, paid a part of the amount due thereon in cash, and gave a, new note for the balance, and agreed that a judgment might be entered therein against him at the end of such time, in case he did not pay the new note given by him for the residue, (which was payable in the same time,) and costs.
    The answer of the defendant in the present action controverted all the allegations of the complaint except the making, indorsement, and demand of payment of the note, and notice to the defendant of its non-payment. It then alleged a surrender of the note by the plaintiffs to the maker, and Ms destruction of it in the defendant’s presence ; the acceptance by the plaintiffs of the note of the maker and the money paid by him, as alleged in the complaint ; their ratification of their attorneys’ acts and retention of both noté and money; their failure to retain the defendant’s liability on the old note, and his disability to recover the amount of the note from the maker in consequence of its destruction.
    The cause was tried on the 25th of October, before Mr. Justice White and a Jury.
    The only evidence in relation to any authority of the plaintiffs’ attorneys to discharge the defendant from any liability on the original note, beyond that to be implied from their authority to prosecute it against the maker, was the testimony of one of such attorneys, who stated, “ he “ had no business to release him.” The defendant admitted, in Ms examination on the trial, that nothing was ever said by any of the parties, or introduced into any oral or written agreement, respecting his liability. The note was proved to have been delivered up to the maker in the defendant’s presence by one of the attorneys for the plaintiffs. Such áttorney testified he did it “ 6y inadvertence.''’ The plaintiffs’ cashier (Carman) testified that they sued the maker to accommodate the defendant, who wanted them to do so for Ms benefit. He saw the attorneys frequently in relation to such suit, and paid them the costs of it after being sued for them.
    The only written agreement between any of the parties was a stipulation made in the suit against the maker óf the note: By that, “ in consideration of the stay of pro- •“ ceedings therein,” he stipulated, that if Ms new note then given, should not be paid when due, such stay should be vacated and the plaintiff take judgment for the amount due on the original note. Ho other written agreement was proved, but one of the attorneys for the plaintiffs, in that suit, (Banks,) testified that he° agreed with the maker of such note that if he would pay a certain, sum on account thereof, and give his note for the residue, with interest and costs, payable in sixty days, he would give him sixty days to pay that balance, and thereupon he took from such maker such stipulation; that the defendant authorized him to take such note and cash, and make such settlement, and was in his office when it was made. The defendant admitted on his examination that he knew of the settlement and that nothing was said by either himself or the plaintiff’s attorney, respecting his discharge; but he denied any knowledge of the stipulation.
    A motion to dismiss the complaint, made after proof of the stipulation and inadvertent delivery of the note, was denied. The Court permitted the Jury to consider the permission to take judgment on the note, by the stipulation, as a circumstance to show that such note was given up inadvertently, and instructed them that, if that were so, the defendant was still liable. The defendant had testified that he “ supposed, of course, when the maker paid “that money, and gave a new note,” he (the defendant) “ was released from all liability,” and that he “knew “ nothing to the contrarythe version of that testimony, given by the Court to the Jury, was that the defendant “ understood the arrangement * * to be a full and final “ settlement of the old note and discharge of his liability.”
    The Court, however, left it to the Jury to determine “ whether the defendant assented to the arrangement with “the maker of the note, with the understanding that he' “ was dischargedand instructed them that the defendant was discharged, “if it was intended to be a full settle- “ ment of the original note, which would discharge ” him, and “ if the parties intended he should beand finally declared “the whole question to be, what the parties agreed “ to do.” The plaintiffs’ counsel excepted to all such directions.
    The Jury found a verdict for the defendant; a motion was made for a new trial, at Special Term, on a case, and denied; from the.judgment on such verdict, and from the order denying a new trial, the plaintiffs appealed.

      Elbert E. Anderson, for plaintiff, (appellant.)
    I. It appears, from, the testimony, that the first action was virtually brought by Kennedy against Billings. It would be against good faith to allow a stipulation made in such a suit to defeat plaintiffs’ rights on the original note.
    II. There was no sufficient consideration to support an agreement to discharge Kennedy. (Keeler v. Bartine, 12 Wend., 110; Crawford v. Millspaugh, 13 Johns., 87.)
    III. There is no evidence to support the conclusion that there was an agreement that Kennedy should be discharged from liability on the original note.
    IV. The delivery of a security from obligee to obligor, and its destruction, is. only prima facie evidence of an intention to cancel. This presumption may be rebutted, and in this case is rebutted by the positive sworn testimony of Banks, and by the admission' of the defendant that nothing was said as to whether he was to be discharged or not. (Olcott v. Rathbone, 5 Wend., 490.)
    V. The taking of a note from one of several debtors, or from a third person for a pre-existing debt, is no payment, unless it is expressly agreed to as such. (Muldon v. Whitlock, 1 Cow., 306; Edwards on Bills, 192, 193; Kean v. Dufresne, 3 Serg. & Rawle, 233; Ex parte Blackburn, 10 Vesey, 206.)
    J. S. Slauson, for defendant, (respondent.)
    I. The controlling question in this case is, whether the parties intended and agreed to accept the money and new note of Billings in payment of the old note.
    II. It is a matter of evidence to show the nature of the transaction; and it is then a question for the Jury to determine, from the facts and transactions proven, what the intention was; and the agreement need not be in express words, but may be inferred from the whole transaction, and the finding of the Jury is conclusive. (Tobey v. Barber, 5 Johns., 67; Arnold v. Camp, 12 Id., 409.)

      III. The charge of the Justice presented fairly before the Jury the issues for their determination.
    IV. There is sufficient evidence to sustain the finding of the Jury.
    V. Kennedy was an indorser, and not a joint maker nor partner; and the facts are abundantly sufficient to discharge an indorser under the strict rules by which holders and indorsers and principals and sureties are bound. (Kingsley v. Vernon, 4 Sandf., 361; Hart v. Hudson, 6 Duer, 294.)
    The consent to allow judgment and the payment of the costs in an action then undetermined, furnished a sufficient consideration for the discharge.
    The effect of taking the new note was to extend the time of payment and discharge the indorser, and the deliv- ■ ery up and destruction of the old note certainly precluded the indorser from taking it up from the holder and resorting to the indorser. (Hart v. Hudson, 6 Duer, 294.)
   By the Court—Robertson, J.

Two questions are involved in this case: first, whether any valid agreement was ever made to discharge the defendant; and, second, whether the time given to the maker of the note discharged him as indorser. The first, besides the question of fact whether any agreement was made, involves that of a sufficient consideration. The second, besides the question of fact whether the defendant assented to what was done, embraces that of his being prejudiced, even if he did not assent.

. Unless the stipulation of the maker of the note in the suit against him, and the cotemporaneous agreement to stay proceedings in connection with the manual tradition of the note to such maker constitute, operate to create, or prove, an agreement to accept the cash then paid, the note then delivered and the judgment to be entered in case it was not paid, in place of the liability of all parties on the original note, or discharge the defendant, there was no evidence of one in this case. There is not a particle of evidence of any additional stipulation to that effect; the defendant stated that not a word was said about his liability. He evidently relied, as he testified, upon what he considered to be a release without any express agreement, the delivery of the cash and a new note, and therefore never made any express agreement.

No parol evidence could add to or vary the terms of the written stipulation of the maker of the note, or prove a different consideration from that stated in it. It merely permits the plaintiffs to enter judgment, in case the new note is not paid in sixty days, and the sole consideration expressed, for that is the stay of proceedings. Not a word is said in it of the release of any of the parties to the note. On the contrary, to warrant the entry of the judgment, the liability of the maker at least must have been retained, otherwise it would be a judgment by confession, which requires a certain statement to be made, (Code, §§ 382, 383.) The learned Judge informed the Jury that it was merely a circumstance to prove such retention of the maker’s liability, when he should have declared it to be conclusive of it. The surrender of the note, or discharge of any of the parties to it, did not enter into the written agreement of the maker of the note, or the verbal agreement of the attorney for the plaintiffs.

It may well be doubted whether the mere delivery of the original note, indorsed as it was, to the maker by the plaintiffs, would, if unexplained, either be, or operate to create or prove an agreement to discharge any one.. But, as the learned Judge charged the Jury, when inadvertently delivered, it certainly neither creatednor proved any agreement to discharge. Upon the question of fact, the evidence of the plaintiffs’ attorney is uncontradicted, and he is fortified by the reservation of the right to enter up judgment; such being the case, the fact of delivery furnishes no warrant for any inference prejudicial to the plaintiffs. (Olcott v. Rathbone, 5 Wend., 490.) It was error, therefore, to leave the question of an agreement to discharge the defendant to the Jury as one of fact, when the only circumstance to sustain it was fully explained by uncontradicted evidence.

But even beyond this there was no evidence of any authority by the plaintiffs to their attorney to discharge the defendant. Laying aside the consideration of the facts, (of which there appears to be strong evidence,) that the attorneys were in reality those of the defendant, the suit being brought by his directions, although in the plaintiffs’ name; that he frequently called about it; paid the costs and acquiesced in the arrangement with the maker of the note; the mere authority of the attorneys to bring the suit, would not sanction their discharging any of the parties without being paid the full amount. It is doubtful whether it even authorized the stay of proceedings. (Gaillard v. Smart, 6 Cow., 385; Shaw v. Kidder, 2 How. Pr., 244; Bowne v. Hyde, 6 Barb., 392.) If the authority had been to collect the note, it might have been different. (Livingston v. Radcliff, 6 Barb., 201.) The attorney testifies that his orders were to sue the maker of the note. Even, therefore, to discharge the maker, the authority was insufficient, unless the defendant was the real plaintiff in such'suit, and his presence and assent authorized the delay. He does not undertake to deny his presence at, knowledge of, and assent to the settlement. But to proceed against the defendant or to treat with him, the attorneys had no authority, and if, by delivering up the note they intended to discharge him, the act was extra vires.

The second question might possibly arise in the case, although not insisted upon or presented to the Jury, and hardly raised by the pleadings. The charge of the learned Judge was, that “if there was any neglect on the plaintiff’s “part, to prosecute the note, against ‘the maker,’ to which “ the defendant did not assent,” and the maker “ became “ insolvent, and by reason of such negligence the defend- “ ant could not collect the note from him,” the former was discharged. This was, however, not excepted to; but literally construed, it is far from being borne out by any case or principle. There is no obligation on the holder of a note, to prosecute a principal debtor diligently to prevent the loss of the liability of a surety, even on the request of the latter. His remedy is to discharge the obligation and proceed against the principal himself. But by the neglect in this case, he may have meant the giving time; otherwise there was no evidence of any. That was, however, done with the defendant’s assent, as appears by uncontradicted evidence, since he knew of the settlement and approved of it, and must have known of the stay of proceedings. The remark was calculated to mislead the Jury.

There appears to be some confusion in the testimony, as to the number of stipulations in the first action. The attorney of the plaintiffs testifies he gave a stay of proceedings therein, ’till the new note became due; the defendant “ had perfect knowledge of that stipulation.” The latter testifies he had no knowledge of any stipulation. The only one in evidence' does not contain a stay of proceedings, although it recites one, and was not given by the attorney for the plaintiffs.

But as the Court was bound, in the entire absence of any testimony of a distinct agreement to discharge the defendant, and with the full explanation of the only doubtful circumstance, to charge the Jury that the defendant was not discharged without such agreement, of which there was no evidence, the case should go back for a new trial.

I am of the opinion, therefore, that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Monell, J.

I concur on both grounds: First, there was no evidence of an agreement to discharge the indorser; all the witnesses testify that nothing was said on the subject, and Kennedy merely supposed he was to be discharged. It was error, therefore, to submit it to the Jury as a question of fact, for them to determine whether there was any agreement; such an agreement cannot be implied. Besides there was no consideration moving from Kennedy for such an agreement, if it had been proved. Second, the attorney had no power to discharge the indorser without satisfaction, or the consent of the plaintiff. (10 Johns., 220; 21 Wend., 362.)

Ordered accordingly.


author: By the Court—Monell, J.

text:
    The Chatham Bank, Plaintiffs and Respondents, v. Frederick B. Betts, (who was impleaded with Archibald Thomas et al.,) Defendant and Appellant.
    1. Where P. being asked by T. to discount an accommodation note, replied .he had no money," and being asked to procure it to be discounted, took it, indorsed it, and procured the plaintiffs to discount it for him, at lawful interest, and the plaintiffs credited him with the amount; but on his paying over the proceeds to T. he deducted a large percentage; Held, that these facts fully warranted the Jury in finding that there was no usury in the transaction between P. and T.
    2. Where usury is the defense, the plaintiff has a right to have the question whether there was a corrupt agreement, submitted to the Jury; especially where it is to be made out from circumstances, and must be determined, in a great degree, from the intent of the parties.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 6;
    decided, November 29, 1862.
    Appeal from a judgment entered on a verdict for the plaintiffs, and also from an order denying a new trial.
    The action was brought by the Chatham Bank against Frederick B. Betts, Archibald A. Thomas and Samuel B. Potter. Betts alone defended the action. The facts are fully stated in the opinion of Bobertson, J. The plaintiff having recovered a verdict, the defendant moved, at Special Term, in May, 1862, for a new trial. The motion was denied, the following opinion being rendered:
    Robertson, J. This is a motion for a new trial, upon a case made upon the ground that the verdict was against evidence. The action is on a promissory note drawn by the defendant Betts, in favor of the defendant Thomas, indorsed by him and the defendant Potter. It was for $2,350, payable three months after date at the Mechanics’ Bank, and dated on the 18th of September last. Two defenses are set up in the answer: one, that the suit is prosecuted for the benefit of the defendant Potter, who is the real party in interest, and the other is, that the note in suit was given solely for the benefit of Thomas, without any consideration, and that it was discounted by Potterupon an usurious agreement with the defendant Thomas, by which the former reserved the sum of $150 as extra interest.
    On the trial, the defendant Thomas testified that the note in suit was given to realize the amount for Betts’ benefit. The defendant Potter testified that Thomas called upon him repeatedly with the note, asking him to discount it, to which the witness replied, he had no money; when the former said, “You can get it discounted;” and repeatedly stated he must have the money; he did not state for whose accommodation it was; the witness refused to do it. Thomas said, “You can get it done at the bank.” The former finally promised to see if he could get it done at the Chatham Bank; he did call at the bank, villose President said they were short. Thomas again called, and the witness again told him he did not think he could get it discounted, but was finally prevailed on to take the paper, and he offered it for discount. He asked the cashier if he would discount a piece of paper for him, who referred him to the President, who showed some disinclination to take it. Potter again told Thomas he did not think he could get the paper discounted. Prior to Potter going to the plaintiffs, on the. 5th of October, he said to Thomas, “ If I can get this discounted, how much do you want to draw; my account is about drawn out in the bank?” and the latter said, “I must have $2,000.” On the 4th of October, the President said it would be passed to Potter’s credit; on the morning of the 5th it was discounted, and Potter gave Thomas a check for $2,000, and on the 21st, a check for $208; the eight dollars had nothing to do with a prior transaction. In regard to the commission Potter was to charge, there was, as he testifies, “ not the first syllable said about two and a half or three per cent, or any discount named.” When the second check was given, Potter testifies not a word was said about the balance. Thomas asked for a check for the balance, and the witness gave him one for $208, and no words passed. On cross-examination this witness testified, that he had previous notes of Betts, indorsed by Thomas, which he had discounted at the rate of two and a half per cent per month, and gave Thomas the money.
    Upon this testimony, it is perfectly clear that Potter acted as the agent of Thomas and Betts in getting the note discounted; and that if he failed in delivering the whole proceeds received by him, whether the amount retained by him was understood to be a commission or not, for his trouble and responsibility in indorsing the note, it did not make the no.te usurious in the hands of the plaintiffs, who discounted it for Potter, at the legal rate, as appears by the testimony of their President, (Hayden.) He testified that the bank discounted this note for Potter, and on his credit, placing, on the 4th of October, the sum of $2,315-n& to his credit. Potter borrowed the money of the bank; prior to that time he had only a small balance of $200 or $300 to his credit; when the note was discounted and the money placed to Potter’s credit, it was his money; after the note was protested, money of Potter’s was left in the bank undrawn for; it was the plaintiff’s custom, in such case, not to allow it to be drawn for; the note was not charged back to him or check presented for it; there was an implied understanding, although no positive arrangement, that the money should remain until the note was paid; the note was discounted at seven per cent.
    To this is opposed the testimony of Thomas, who states that he got the note in suit without paying anything for it, from the defendant Betts, to realize the amount for the benefit of the latter, and a day or two after took it to Potter and asked Mm to discount it for Mm, to take it and see what he couM do for Mm; nothing was then said about the rate; he said he couM not do it at less than two and a half per cent per month, and the witness left the note. This witness states he did not say anything; he left the note with Potter to get the money; he got $2,000 on the 5th of October, and the balance of $200 on the 20th, eight dollars for another transaction being included in the check; Potter deducted $150 for the three months, and took the note at $2,200; Thomas deposited the money he got from Potter in the bank where he kept an account, and passed it to Mr. Betts within a day or two; the transaction was on Betts’ account. On being cross-examined, he stated that he asked Potter .do take the note and try what he could do with it. After receiving the $2,000, he asked for the balance of that note, and received the check for $200; “Potter said he would not do it less than the rate of about two and a half per cent per month; that it would not pay him to go to the banlc to get the money and get it discounted.” He admitted that Potter gave as a reason for not discounting the note, that he had no money and could not do it, and that he told him he got the money he gave him out of the Chatham or Grocers’ Bank; the witness .used the money he got for a little while, and paid it in different amounts to Betts; he admitted that Potter told him the bank was not ready to discount it.
    This testimony does not vary the transaction. Thomas knew Potter did not have money to buy the note; that he went to get it discounted; nay, he asked him to take it and see what he could do with it; he waited after he was informed the bank had been applied to, and delayed discounting it until it would agree to do so; did not object when Potter told him that less than two and one-half per cent would not pay him to go to the bank and procure the discount; received the checks of Potter drawn on the bank by whom it was discounted, and obtained thereby the proceeds of such discount; Potter did not pay any money except the proceeds of the discount, which was made by crediting him with the amount for which he drew the check in favor of Thomas. There is no room for the pretense, that Potter first discounted the note at an usurious rate, and then procured it to be discounted by the bank; nor that the 150 dollars was withheld, except to compensate him for the trouble of going there and getting it discounted, which involved the necessity of his indorsing the note.
    There is not even a conflict of testimony in this case, except as to the mention of the rate of commission, which is denied by Potter, although mentioned by Thomas, and that does not affect the transaction. Even the worst possible inferences from Thomas’ testimony, would hardly show an intent to make the transaction usurious; the testimony of the other witnesses show it could not have been.
    I do not find any error in the charge, or the verdict óf the Jury. The motion for a new trial must, therefore, be denied with costs.
    The plaintiffs entered judgment on the verdict, and the defendant, Betts, now appealed both from the judgment and from the order refusing a new trial.

      Ira D. Warren, for defendant, (appellant.)
    Argued, that the verdict was not only against the weight of evidence, but against the undisputed facts of the case which render the note usurious and void, and a new trial should be granted; citing Catlin v. Gunter, (1 Kern., 368,) Clark v. Loomis, (5 Duer, 468,) Ib., (22 N. Y. R., 312,) Williams v. Storm, (2 Duer, 52,) Powell v. Waters, (8 Cow., 669,) Bank of Salina v. Henry, (2 Denio, 157,) Morse v. Cloyes, (11 Barb., 109,) The East River Bank v. Hoyt, (22 How. Pr., 478, and cases,) North v. Sergeant, (33 Barb., 350,) Cummings v. Morris, (3 Bosw., 560.)

      D. M. Porter, for plaintiffs, (respondents.)
    Cited Flint. Schomberg, (1 Hilt., 532,) Ryckman v. Cole

      man, (21 How. Pr., 404, affirmed on appeal at General Term.) Van Duzer v. Howe, (21 N. Y. R., 531,) Condit v. Baldwin, (Id., 219,) Gould v. Rumsey, (21 How. Pr., 97.)
   By the Court—Monell, J.

I entirely agree with the learned Justice BoÍbertsoít, who heard and decided the motion at Special Term, that there is not even a conflict of evidence in this case, upon the question of usury, the only defense urged upon the argument of the appeal. The testimony fully warranted the Jury in finding that there was no usury in the transaction between Potter and the defendant. It is clear, I think, that Potter retained the sum. charged as having been taken for usury, as a compensation for procuring the note to be discounted at the plaintiffs’ bank for Thomas. Such compensation being retained both as a commission for procuring the money, and as payment for lending the agent’s credit is not usury. (Van Duzer v. Howe, 21 N. Y. R., 531.)

The verdict cannot be disturbed on the facts of the case. The only exception is to the refusal of the Judge to charge “ that the facts in the case, as they are disclosed in the evidence, render the note usurious and void; and the defendant is entitled to a verdict.” To have so charged would have been error.

Whether the note was tainted with usury, was a question of fact for the Jury, and it would not be proper for the' Court to take that question from the Jury, and pronounce upon it as a matter of law. The taking of usury must be in pursuance of a corrupt agreement, express or implied; and it is difficult to conceive of a case, tried before a Jury, where the Judge would be justified in depriving a party of the tight of having it passed upon by them, whether there was such corrupt agreement, especially; when it is to be made out from circumstances, and must be determined in a great degree, by the intent of the parties.

The question of fact was fairly submitted to the Jury, and they were instructed, that if they found such usurious agreement was made between Thomas and Potter, as was claimed by the defendant, they must find a verdict for the defendant.

For these reasons, and for those more forcibly and clearly expressed by the learned Justice who gave the opinion at Special Term, I am of opinion the judgment and order appealed from should be affirmed.

Judgment accordingly.


author: By the Court—Robertson, J.

text:
    James Moore, Plaintiff and Appellant, v. John J. V. Westervelt, Sheriff, &c., Defendant and Respondent.
    1. TJpon a question of negligence in mooring a vessel, it is proper to aslc a witness, who has been shown to be competent to give an opinion, what was the condition of the fastenings of the vessel, as to safety; this is a subject of science and experience, not of common knowledge.
    2. A Sheriff, in respect to property in his custody, is bound to exercise that degree of care, and no greater, which a careful, prudent man of good sense and judgment would exercise respecting such property, if it were his own.
    3. The provision of section 215 of the Code of Procedure, which requires the Sheriff taking personal property in proceedings of claim and delivery, to keep it in a secure place, does not require him to remove it from its place of deposit, unless it is unsafe there; and if that place be a vessel at a ■wharf, he is bound to see that it is properly moored, secured and fastened, against all ordinary perils of winds and waves, and if necessary, protected against any storm or gale, after it arose, by every means within his reach, which a prudent man would use for the purpose, either by removing the vessel to another place, or otherwise; but he is not bound to anticipate a storm of so unusual violence as not to have been reasonably expected.

      4. Thus where, in an action to recover the possession of a cargo of coal, from the master of a vessel lying at a pier in the port of New York, the Sheriff took possession, and put a keeper in charge of the coal, with the consent of the master, and the vessel sunk at the wharf during a violent storm; Held, in an action to recover from the Sheriff the damages sustained by the coal, and the expense of raising it, that it was only the duty of the Sheriff to take such steps to insure its safety, as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel, and her location with regard to exposure to storms, and having all the power of the Sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself.
    5. In such action, where the Court properly instructed the Jury as to the Sheriff’s duty; Held, that a request to charge that the Sheriff is responsible for the negligence of the master and crew, after he took possession, was not proper in form, and it was not error to refuse it.

      6. Held further, that the verdict for the defendant was not against the weight of evidence in this case, and that judgment thereon should be affirmed.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 6; decided,
    November 29, 1802.
    This was an appeal by the plaintiff from a judgment entered on a verdict recovered by the defendant, as well as from an order made by the Oourt at Special Term, denying the plaintiff’s motion for a new trial.
    Before the trial now under review, this case had been tried several times before a Jury. On the first trial, the Jury found for the defendant, and on appeal, the judgment was reversed and a second trial ordered. That decision is reported'in 2 Duer, 59. The reader is referred to that report of the case for a statement of the pleadings. The second trial was had in March, 1856, when the Justice directed the Jury to find a verdict for the plaintiff, subject to the opinion of the Oourt at General Term, upon which the Court gave judgment for the plaintiff. That decision is reported in 1 Bosw., 357. Upon appeal to the Oourt of Appeals, the judgment was reversed and a new trial ordered. That decision is reported in 21 E. Y. B., 103.
    The cause was tried again on the 18th of February, 1862, before Mr. Justice Babbour and a Jury.
    Evidence was given to show a proposal by the defendant to the plaintiff to take the cargo when seized by the present defendant, and a refusal by the latter officer to allow him to do so, and some evidence in contradiction thereto.
    Considerable testimony was taken , as to the condition of the vessel in reference to loading or leaking, her fastenings, the character of the storm, the previous probability of its taking place, and its direction, also the possibility of removing the vessel while it continued, and saving the cargo.
    Several witnesses, including the mate and a hand on board of the vessel, testified to her deep lading; the captain placing her deck within three inches and another witness four, from the surface of the water. The former testified that three or four tons were put on her deck after she was loaded; another witness, (Simpson,) testified that she was “much out of repair.” In regard to the leakage, a hand on board, (Quin,) testified that she leaked a hundred 'strokes an hour when on her passage under sail: the master (Hoffman) reduced this to twenty-five to thirty strokes per hour when she started. The mate testified to fifty strokes in twenty-four hours, when she was at the wharf: “ six inches clear board” were pumped out. The master stated that she was “ required to be pumped twice a day, and he kept her pumped out all the time:” the mate, that he saw she was pumped out every day. Quin testified that the night before she sunk, “ he was pumping her all night;” that she began to leak more than usual about five o’clock in the afternoon before, and that it rained and blew the day before harder than the previous night. The wind began to increase on the afternoon of the second day before the sinking of the vessel, went on increasing next day and during the night, and she sunk at half past four o’clock in the morning.
    As to the fastenings the master of the vessel testified that she had “ enough to hold her:” the plaintiff admitted “that when she was raised, after being sunk, one line remained fastened.” Charles H. Hallenbeck, the keeper put on board by the Sheriff, stated that the hawsers by which the vessel was fastened were of the kind usually used for the purpose, a large rope ; that he should judge she was safely moored, and the fastenings were proper fastenings for a vessel in that condition; he had seen vessels often before moored in that way, but sometimes with a storm they had broken those fastenings. He admitted, however, that he had not examined the particular fastenings to see their character.
    This witness,,in reference to his experience as to such ■ subjects, stated as follows :
    “ At the time this coal was taken by the Sheriff I was assistant to Dunlap, Deputy Sheriff; I had been in freighting establishments from 1837 to 1844, where we had vesseis running from Hudson to Hew York; Iliad been clerk on board of a steamboat for some three years; I had charge of the mooring of the vessel when the captain was off; he did not leave that altogether to my charge, but to the pilot’s and mine; I think I understood it.” * * * *
    Q. What kind of hawsers was the vessel fastened by ? were they the kind usually used for that purpose ?
    A. I should judge they were; a large rope.
    Q. Please to state what was the condition of the fastenings of this vessel as to safety ?
    This question was objected to on the ground that it was not a question of science, and that the Jury were just as «competent to judge of it as the witness. The objection was overruled, and an exception taken.
    A. I should judge that she was safely moored.
    Q. By the Court: You mean to say that the fastenings were proper fastenings for a vessel in that condition ?
    A. Yes, sir. I have seen vessels, time and time before, moored in the same way.
    The vessel lay to the north of the wharf on the East . Biver, to which she was fastened, which ran at right angles to the bulkhead of the mainland; and in that position she was exposed to the force of a northeasterly wind, which was that which prevailed in the storm which sunk her; on the south side of the pier she would- have been greatly protected from such wind. An expert for forty years who was examined as a witness for the defendants (Capt. Cole), testified that he knew all about the piers, and had “ seen “ how storms act. In laying up a vessel in good weather “ a man does not generally expect a storm from either “way;” * * * “ consequently will as soon lay his vessel “ on one side as the other.” That a storm in September would blow “ more likely from the south than the north “ at that season of the year; that no greater danger would “ be incurred from mooring a vessel on the north than the “ south side of the pier;” that the wind often changes its' direction in a storm, from northeast to southeast. That it was not usual to have a very severe September gale in Hew York. He was corroborated by another witness, (Earl). The vessel’s keeper testified that the wind was blowing quite “ heavy ” two days before the sinking of the vessel; it was likely to prove a pretty heavy storm ; on the next day “it was a very heavy line gale, a “ September line storm and a very heavy one too.” The captain stated, “It was a pretty bard storm.” A witness who bought and raised the sunken vessel, (Simpson,) testified, “the gale was very severe on that side of the “ river, the tide was eight or ten inches higher than in the “ gale of 1847,” and that “ if she had all the fastenings on “ in Hew York, the probability is she would have sunk, “ the cause of her sinking was the effect of the storm, she “ being so much out of repair and very heavily laden.” Capt. Cole also testified that it would be dangerous trying to move a vessel laden to the water’s edge, round a pier when a gale is blowing hard enough to sink it; “ it “ would be very likely, (if not to knock a hole in her,) to “ wash the water on her deck so that she might fill and “ sink, deeply ladened as she appeared to be.” Another witness (Earl) stated, that in a northeast gale it would not be safe to take a vessel round a pier, from its north to its south side, “ the current would be so strong and the swells “ so large, that it would be apt to force her against the “ dock, and probably jam a hole in her side, or break over “ and sink her, if she was heavy laden.”
    The vessel sank precisely at the spot where she lay, and remained parallel to the wharf, when she was raised; which, as the plaintiff admitted, was pretty nearly straight.
    The Court instructed the Jury “that it was the duty “ of the Sheriff to take such steps to insure the safety of “ the coal as a careful and prudent man of good sense and “judgment, well acquainted with the condition of the ves- “ sel, and its location with regard to exposure to storms, “ and, having all the power of the Sheriff in the matter, “ might reasonably have been expected to take had the “ coal belonged to himself,” and if they came “ to the con- “ elusion, that the Sheriff did not take that degree of “care for the preservation of the coal” which he had “ thus indicated, and that the injury was occasioned by “ the negligence of the defendant and his officers,” the plaintiff would be entitled to a verdict. And he further “ instructed them that “if such an owner as he had indi- “ cated would have taken the coal from the vessel, as it “lay at the wharf in the first instance, the Sheriff was “ bound to do it. He was bound to know the condition of “ the vessel; whether it leaked, whether it was seaworthy “for the place in which it lay, how deeply laden, every- “ thing in regard to it, and he was bound to put on board “ the vessel, if necessary, such men as would pump her out “ and keep her in a condition to insure the safety of the “ coal.”
    The plaintiff’s counsel requested the Court to charge the Jury:
    First. That the Sheriff was bound to take more than ordinary care of this property, and if for want of more than ordinary care the property was lost, he is responsible.
    Second. That if the sinking happened from wank of due caution, either by the Sheriff, Deputy Sheriff, captain, mate or hands of the vessel, then the Sheriff is responsible.
    Third. That the Sheriff was responsible for the negli-' gence of the master and crew after he took possession.
    Exceptions were taken by the plaintiff’s counsel to the alleged omission of the Court to charge each of such propositions.
    The Court also charged the Jury, “ that if a prudent man, “ in the case of his own vessel, would not have removed “ her in the storm,, the Sheriff would not be bound to.”
    To this instruction the counsel for the plaintiff also excepted.
    The Jury found a verdict for the defendants, upon which judgment was entered. A motion for a new trial on the Judge’s minutes was made at Special Term, and denied, by an order, from which, as well as from the judgment, an appeal was now taken.

      Daniel Lord, for plaintiff, appellant.
    1. The Sheriff was bound, by the express terms of the statute, to keep the property in a secure place, and had a lien on it, not only for his own fees, but all necessary expenses.
    • 1. This obligation is official and statutory, and at least as great as that of a common carrier, and only subject to the same exception of inevitable accident from act of God.
    2. A carrier is not exempted simply from a loss by act of God, unless it appears that he has done his whole duty in protecting the property from its peril.
    II. The question as to the safety of the vessel from the condition of the fastenings, and the judgment of the witness thereupon, and the question of the Judge thereupon, were all objectionable, and formed a mistrial.
    I. It was a mere opinion of the witness, who had not seen the vessel nor had been present at the time of the peril# and an opinion on a subject of common knowledge, and not of science.
    2. The Judge’s question was leading.
    3. It was irrelevant, for the evidence did not show a loss from a defect of fastening.
    III. The Sheriff was bound to take more than ordinary care of this property, and if lost for want of more than * ordinary care, he is liable.
    IV. The Sheriff was liable from the want of due caution, whether in the Sheriff, deputy sheriff, captain, master or hands of the vessel.
    1. The charge Vas, if the Sheriff or his officers were without fault, the verdict should be for the defendant. This relieves the Sheriff from the negligence of the persons left with the vessel in charge of the cargo.
    2. When again more specifically requested to charge on this simple proposition, the Judge did not so charge.
    The plaintiff was entitled to such a charge as he requested. (See this case in the Court of Appeals, 21 N. Y. R., 105,106; Also this ease, 2 Duer, 59; 1 Bosw., 357.)

      V. The verdict was against evidence, clearly and palpably.

      Edwards Pierrepont, for defendant, respondent.
    I. The charge of the Court is in accordance with settled law, and quite as favorable to the plaintiff as the law or the facts would warrant. [Moore v. Westervelt, 21 N. Y. R., 103.)
    II. The case clearly shows that there is no meritorious cause of action, and to us it seems not an action in good faith by the plaintiff.
    III. The presumption of law always is, that the Sheriff, in execution of legal process, has done his duty, and negligence of the Sheriff must be proven as matter of fact before the plaintiff can recover.
    IV. The fact that there was no negligence on the part of the Sheriff has been found by the Jury on four different trials, and the evidence abundantly sustains that finding. On this trial much new and additional evidence was given on the part of the defendant.
    V. There was no negligence on the Sheriff’s part, and the verdict is clearly sustained by the evidence.
    VI. Four several Juries have concurred in the verdict that the defendant was not guilty of the neglect charged. [Ex parte Baily, 2 Cow., 479; Feeter v. Whipple, 8 Johns., 369; Fowler v. Etna Ins. Co., 7 Wend., 270.)
   By the Court—Robertson, J.

The question of the admissibility of the question put to Hallenbeek, the ship’s keeper, an expert, as to his judgment on the sufficiency of the fastenings, must be determined before examining the charge. Some degree of professional knowledge had been previously testified to by him; and also that he should judge the hawsers used were those usually employed— a large rope; and he certainly was competent to give an opinion as to their safety. It clearly was a subject of science and experience, and not of common knowledge;one of the fastenings seems to have broken; the plaintiff had a right to prove that it was sound in the first place, and that such danger was properly provided against. . The question was, therefore, properly admitted.

The substance of the objections to the charge is, that the Judge confined the degree of care to be exercised by the defendant to that which a prudent man would exercise in regard to his own property, and did not charge that the neglect of the persons on board the vessels was imputable to the defendant.

In regard to the first point, we are bound to adhere to the views expressed by this Court at General Term, when the case was formerly before it, (1 Bosw., 357,) which limited the degree of care required to that which was stated in the charge on the present trial. (Story on Bailments, § 130.) Those views were not disapproved of by the appellate Court, (Moore v. Westervelt, 21 N. Y. R., 105,) which has since and lately thrown considerable doubt upon the existence of any practical distinction between ordinary and extraordinary care in regard to bailees for hire, as in the case of common carriers, in the ease of Wells v. N. Y. Central R. R. Co., (24 N. Y. R., 181, decided at their last term,) pronouncing it “illusory and impracticable.”

The request in regard to the neglect of the master and crew does not appear to me to have been put in a form which required a compliance with it. Omitting that part of it which relates to the defendant, which it is conceded was granted, it amounted to a request to charge, that the omission by such master and crew to take the necessary means for the safety of the vessel, made the defendant responsible; that it clearly did not, if he or any other person took the proper precautions, and if not only they but the whole world omitted them, he clearly was liable. ¡Neglect is negative conduct, and the defendant’s responsibility depended on the omission by everybody to take the proper measures to insure safety, not that of any particular individuals. The plaintiff was entitled to have the Jury instructed, either that the defendant was bound to adopt such means, or that the failure to employ them by all the world made him liable; for if any one used them, he was entitled to the benefit of that use. If the object of the request was, as seems to be contended, that the defendant did not discharge his duty by leaving the vessel in the charge of the captain and crew, as held by the Court of Appeals in the case, it should have been made in terms less likely to be misunderstood. But even if negligence could be conceived to be a positive act, the charge that the defendant would be responsible, if the loss was caused by his negligence, seems to me to cover the case. The master and crew were, as held by the appellate Court, his agents under the circumstances, and he was responsible for their conduct; their negligence was his. If there was any doubt that the Jury would so understand their relation and its effect, the request should have been directed to that point in less ambiguous phraseology; because, as it stands, it is that if the neglect of such agents, as one of the alternatives, caused the loss, the defendant was responsible; and there is no pretense of any positive acts on their part to increase the danger. The defendant was responsible, if at all, for the neglect of the whole world, including himself, and not for that of any particular individuals. The third request equally falls short of the requisite exactness to reach the end proposed, if it were that now contended for; it was “that the Sheriff was “responsible for the negligence of the master and crew.” The learned Judge instructed the Jury, that if the defendant did not take the degree of care which the Judge had indicated, and the injury was caused by such negligence, the plaintiff was entitled to a verdict. How mere negligence of the agents was to make the liability of then* principal, arising from his own want of care, greater or less, I cannot discover. The learned Judge even went so far as to charge that the defendant “was bound to put on “board such men as would pump her out and heep her in a “condition to insure the safety of the cargo,” thus fully - defining his obligation.

The verdict should, therefore, not be interfered- with by reason of any improper refusals to charge.

But it is said the verdict of the Jury, even if the charge was correct, was contrary to the evidence, or the weight of it, and that the defendant utterly failed to discharge 'any obligation incumbent upon him; and that is based principally upon the ground that nothing was done by any one, to save either vessel or cargo.

The liability of the defendant, turns generally upon the .question, whether he kept the cargo, which is the subject matter of the action, “in a secure place,” within the meaning of the 215th section of the Code, as well as discharged his duty as a bailee for hire and public officer charged with the possession of the goods seized by him as Sheriff. The highest Court of this State, in passing upon a former judgment in this action, held, that the defendant was not necessarily bound to remove the cargo out of the vessel, unless it was unsafe there, (Moore v. Westervelt, 21 N. Y. R.,. 105,) but he was bound to take a certain degree of care in protecting and securing it while in his custody on board of such vessel, what that degree of care was, was not adjudicated.

Being thus bound to see that the place of deposit was in itself safe, if it floated, he was bound to see that it was properly moored, secured and fastened, against all ordinary perils of winds and waves, and if necessary, protected against any storm or gale, after it arose, by every •means within Ms reach, which a prudent man would use for the purpose, either by removing the vessel to another place, or otherwise. Complaint is made, in this case, first, of the character, condition and fastenings of the vessel itself, and its exposure to storms coming from the quarter from whence that which sunk her did; and, secondly, of the neglect .to change her position after the storm commenced. Of course, if the storm was of a kind and from a quarter, which previous experience had taught might be expected, and the position of the vessel was such as not only to expose it to such storm, but also to prevent its withdrawal after the storm had begun, the defendant would have been guilty of neglect in leaving it in that ■position. Or if the condition of the vessel, as to its lading or leaking, was such that it could not resist the force of the storm as well as if it had been lightened or pumped, or the leaks stopped, and the defendant neglected to use any proper measures to produce those results, and such neglect made her more easily a prey to the storm ;■ or if, after the commencement of the storm, he could have caused anything to be done to protect such vessel from its violence, by removing it, or increasing its fastenings, or otherwise, and did not do so, he was equally negligent. Upon these points it may therefore be necessary to examine the evidence; but the defendant would not be liable if the storm was one of a violence so unusual as not to have been reasonably expected; or if it was impossible to remove the vessel to a place where she would not be as much exposed to storms of equal violence from another quarter'; or if she was so situated as to be incapable of being withdrawn from the effects of a storm of ordinary violence from the same quarter, after it had commenced ; or if she was so kept clear by pumping as that her cargo or any leak did not increase her danger or render her unmanageable, and nothing could have been done within a reasonable time after the storm commenced, by removing the vessel out of its reach, or increasing her fastenings, to save her.

Both parties, in this case, seem to have been willing to trust the case to the Jury, upon the general charge of the Court, as to the degree of care to be exercised by the defendant; the state of affairs in which he would be bound to remove the cargo in question, or put men on board to pump the vessel out and keep her in a condition to insure its safety. There was no request for specific instructions as to the character of the storms against which provision was to be made, or the nature of such provision, or the duty of the defendant in regard to removing or protecting the vessel after the storm had begun; so that it was left entirely to the Jury’s discretion to determine, according to their uninstructed views of the defendant’s duty, whether he had performed it or not. The plaintiff, after making that experiment, cannot now, in fairness, ask, upon a critical examination of the evidence, that such verdict should be set aside, merely because the Court may take a different view of the defendant’s conduct.

It certainly cannot be denied that the agents of the defendant did not seem to have had a very clear idea that he was responsible for anything except for the safe keeping of the coal, or if he chose to make the vessel in Avhich it was, his place of deposit, was bound to do anything to protect it against winds and waves or other accidents, nor that the defendant took any additional precautions against them. But this is wholly immaterial, if nothing could have been done to save the vessel. It is true, an omission to make an attempt to do, what to an unlearned mind may seem likely to accomplish an end, may have its weight with an equally unlearned Jury; but when experts pronounce such efforts futile, we are bound to yield to their judgment. The Jury in this case must have been satisfied that nothing could have been done to save the vessel, even by an owner stimulated by the fear of loss, and therefore the reason why nothing was done was immaterial. It would be unprofitable, therefore, to enter into speculations of possibilities, when we have realities before us.

So, too, the heavy lading and leak of the vessel, if, as it would appear by the testimony, they prevented it from being safely removed to a place of shelter, or increased the peril of that removal, might be a reason why the defendant should not have left it in a place of danger; but the testimony shows that human foresight could not determine from what quarter the danger would come, and the probabilities were that it would come from a quarter against a gale from Avhich the pier was a shelter. Against the leak, which was not formidable before the gale, protecv tion was given by the use of the pumps. It is true, the defendant might have exercised greater care in taking out the excessive part of the cargo, before the storm, if he had had any reason to anticipate it, but the Jury had a right to determine that storms did not occur with such certainty, as, in view of the reasons sanctioned by the Court of Appeals for retaining the same depository, should call upon him to make the change; and the Jury has determined he did all a prudent man was likely to do in his own case.

The defendant having made out a prima facie case of destruction by overpowering and not to be expected force, it lay with the plaintiff to show that something could have been done when the attack came, to resist it, or rescue the vessel from it; the evidence in this case, certainly does not go to that extent. The Court is not at liberty to conjecture she might have been saved by going round the pier or across the slip. The Jury, with perhaps equal if not greater experience, have determined she could not, by deciding that a prudent man would not have tried it; and it would be improper for us to say, in the face of the evidence of the violence of the storm, they were wrong. The Court would not have been warranted in instructing the Jury that the defendant was bound to have made the attempt in the absence of all evidence that the expected action was feasible: what there is goes to prove it was not.

Without undertaking to say that the evidence establishes that the defendant did all that a prudent man would have done, to provide for contingencies in case anything could have been done, we merely mean to hold that there was no such overpowering evidence that anything should have been done beyond the measures taken to secure the vessel, in the first place, or after the wind commenced to increase, or that anything could have been done to save her when the storm had grown to a gale, as to warrant our setting aside the verdict for that reason.

The judgment must be affirmed, with costs.

Judgment accordingly.

       On appeal to the Court of Appeals the judgment was affirmed, 25 How. Pr., 277.


text:
    Charles Mallory et al., Plaintiffs and Respondents, v. Richard F. Perkins et al., Defendants and Appellants.
    1. In order to exclude a question which calls for the opinion of a witness, for the reason that he has not been shown competent as an expert, such reason must be specified in the objection. A general objection is properly overruled.
    2. Declarations or admissions in respect to the stowage of a cargo, made by a stevedore while employed by the owner of the cargo to stow it, are not admissible in evidence against the owner.
    3. The testimony of a witness as to a matter of fact is not affected by proof that he was a public officer required by law to make a record of the facts in question; and that such record, as originally made by him, did not include a statement contained in his oral testimony. Hence, proof of the alteration of the record by subsequent insertion of such statement is inadmissible to contradict his oral testimony.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 7;
    decided, November 29, 1862.
    This action was brought by Charles Mallory, Charles H. Mallory, David D. Mallory and George W. Mallory against Bichard E. Perkins and Charles Stem, to recover for freight for the transportation of some casks of wine and brandy on a voyage from San Eranciseo to New York. The defense was the loss of the contents of two of such casks of wine, by leakage produced by improper stowage, and not by dangers of the seas.
    The cause was tried before Mr. Justice Woodruee and a Jury, on the 19th of December, 1861.
    On the trial, the delivery of the casks shipped, to the defendants, was admitted, and before any proof was given of their good order or condition, a motion was made by the defendants to dismiss the complaint, because no such proof had been given. Evidence was subsequently introduced of their condition and the cause of the leakage.
    The master of the vessel was examined as a witness for the plaintiffs. He testified, without objection, that the casks in question were “well and properly stowed,” and were “not disturbed, removed or displaced after they “were” so stowed; and that he had -been a shipmaster seven years, and sailed as mariner sixteen. He was cross-examined as to their mode of stowage, the weather on the voyage, and their mode of delivery. Several questions were also put to him on his cross-examination, as to his opinion in regard to different modes of stowage, and the proper one, in reference to which he said that the safety depended on the strength of the casks. He was then asked the following questions on his redirect examination: “ If wine casks are damaged in stowing them four deep, “ what would that indicate in reference to the quality of “the casks ?” and “ If casks take damage by so filling the “ ship, what does that indicate in reference to the fitness “or quality of the cask ?” These questions were objected to generally, but admitted under exception.
    One of the defendants (Stern) being under examination as a witness on their behalf, was asked, what was said by him to the stevedore who was stowing them, in reference to the casks in question, at the time they were put on board; and by such stevedore to him ? and, also, in what manner he called the attention of such stevedore to such casks, and what he said to him ? all of which questions were excluded, under an exception.
    The defendants’ counsel read in evidence a copy of a survey made by one of the wardens of the port of Hew York, (Hutchinson,) on such vessel, and reduced to writing, dated on the 18th of December, 1861. This stated, among other things, that, on the 20th of February, 1861, he “ sur- “ veyed the cargo on board-of this vessel, ground tier, and “ found stowage good and dunnage ample. * * * * “ Found Perkins & Stern’s cask near empty, by leaks at “ chimes, caused by being crushed on the bed, by pressure “ of cargo; same mark, one cask a little out, from same “ cause; this cask had settled so much on the bed, that “the board on which the bed rested had flattened the “ bilge; H. Y. one cask, part out, leaking at chime.” At the end of the copy survey were two lines, as follows: “ All the casks that were leaky were weak, and hoops “ slack and not sufficient to bear the pressure.” As to those two lines the production of the original entry was required.
    Hutchinson, the warden who made the survey, was examined as a witness by the plaintiffs, and testified as to the condition of the casks in question, without the aid of the survey. After he had left the stand, he was recalled by the defendants’ counsel, and the original report of his survey shown to and identified by him, and he testified that the last two lines were written by him:, and his best impression was that he wrote them when he wrote and signed his report; and the entire report, including those two lines, was made by him, “ as one transaction, and “ without any intimation or dictation by any one.” Upon which the defendants* counsel read the original report.
    The defendant, Stern, being recalled, the following question was put to him, and excluded: “Did you, after the “ delivery to you of these twenty-two casks, go to the port “ wardens’ office and examine their entries ?”
    The defendant, Stern, testified that neither of the casks was weak or inferior. A cooper who cut up the empty one, testified that it was strong. The warden testified that they were insufficient. The master of the vessel testified that they must have been so to have been injured by the pressure. And another witness thought they looked in good condition when put on board.
    The Judge charged the Jury, that if the damage to the casks was owing to want of proper strength in them to endure the ordinary pressure to which casks are subject on such a voyage, liable to encounter the gales which had been spoken of by the master of the vessel, as having been met with on the voyage, the plaintiffs were not responsible for the loss of the wine.
    The Jury found a verdict for the plaintiffs for the full amount of the freight claimed by them, and judgment was entered thereon. An application was made for a new trial, at Special Term, which was denied; from the order denying which, as well as from the judgment, the present appeal is now taken.

      James Eschwege, for defendants, appellants.
    I. The Court erred in denying the motion made by the defendants to dismiss the' complaint.
    II. The Court erred in admitting the conclusions of the master. 1. It does not appear that he is an expert. 2. The opinion which he gives is not based upon facts, but upon inference. 3. It was the exclusive province of the Jury to draw the conclusion from the alleged good stowage and established damage, and not of the witness, the sufficiency of the casks being the very point in issue. (1 Phillips on Ev., [1859,] p. 779, and cases cited, note 2; Id., pp. 781, 784; Taylor v. Monnot, 4 Duer, 121: Ramadge v. Ryan, 9 Bing., 335.) 4. The witness did not state facts, but his inferences and conclusions drawn from such alleged good stowage and established damage to the casks, which was improper. (Best’s Prin. of Ev., 384, § 344; Paige v. Hazard, 5 Hill, 603; Morehouse v. Mathews, 2 Comst., 514; Dewitt v. Barley, 5 Seld., [9 N. Y. R.,] 371; Dickinson v. Barber, 9 Mass. R., 225.)
    III. The Court erred in excluding the declarations made by Cooty, the stevedore, to the defendant Stern, at the time the casks were being loaded on board the vessel.
    Cooty was the agent of the plaintiffs for the purpose of receiving and stowing, as part of the general cargo, the casks in question.
    And as such it came peculiarly within the scope of his authority to receive or reject casks as sufficiént or insufficient.
    And the declarations of such agent, made within the scope of his authority, and part of the res gestee, bind the plaintiffs, and are admissible as evidence.
    Such declarations are not hearsay, but original evidence, and should have been admitted. (1 Phil, on Ev., [1859,] p. 507; Dunlap’s Pal. on Agency, p. 273, note 1; Price v. Powell, 3.Comst., 322; American Fur Co. v. United States,
      2 Peters, 358; Perkins v. Burnet, 2 Root, 20; Mather v. Phelps, Id., 150; Miller v. South Car. Ins. Co., 2 McCord, 336; Campbell v. Williamson, 2 Bay, 237; Higgins v. Soloman, 2 Hall’s Sup. Ct. Rep., 482,. 487, 488; McCotter v. Hooker, 4 Seld., 497; Baring v. Clark, 19 Pick., 225; and see DeMott' v. Laraway, 14 Wend., 225.)
    IV. The Court erred-in excluding the offer to show that the book of the port wardens,-and which had been put in evidence, had been examined by Stern. Although a party cannot be allowed to impeach his own witnesses, he may nevertheless, prove on the merits, by independent testimony, the truth of any particular fact, in direct contradiction to the testimony of the witness. (Thompson v. Blanchard, 4 Comst., 303.)
    V. .The verdict is clearly against the evidence.

      I. T. Williams, for plaintiffs, respondents;—
    Cited, as to the admissibility of the master’s opinion of the casks, Crowell v. Kirk, (3 Dev., 356,) Corlis v. Little, (1 Green, 232,) Ramadge v. Ryan, (9 Bing., 333,) Malton v. Nesbit, (1 C. & P., 70,) Jameson v. Drinkald, (12 Moore, 148, 157,) Davis v. Mason, (4 Pick., 156, et seq.) And as to the admissibility of the. declarations of Cooty, the stevedore, Governor v. Barkley, (4 Hawkes, 20,) Healy v. Jacobs, (2 Car. & P., 616.)
   By the Court—Robertson, J.

The evidence of the condition of the casks in question being subsequently supplied; cured any error in refusing to dismiss the complaint for want of it. (Murray v. Judah, 6 Cow., 484, 499.)

The objection to the inquiry made of the master of the vessel, of his . opinion of the quality of the damaged casks was also properly overruled, because no ground was specified for.it. Proof of the.probable strength of such casks, in- view of their stowage and condition after the voyage was admissible in the cause. If the witness was incompetent to give the testimony,, by not being established to he an expert, the objection should have been put on that ground; because the defect might have been remedied on the spot. (Doane v. Eddy, 16 Wend., 522.) In many, if not all cases, the nature or ground of an objection to testimony should be stated. (Jackson v. Hobby, 20 Johns., 357; Elwood v. Deifendorf, 5 Barb., 398; Ohio Insurance Co. v. Edmonstone, 5 Miller, 295.) Parties have no right to lie by until ah appeal before disclosing the ground of their objection. (Ward v. Whitney, 8 N. Y. R., [4 Seld.,] 442; S. C., 3 Sandf., 399; Roberts v. Carter, 28 Barb., 462; Sheldon v. Wood, 2 Bosw., 267; Union Bank of Sandusky v. Torrey, 2 Abbotts’ Pr., 271, note.) Where evidence is conditionally admissible, parties should be held to have waived the compliance with the condition, where they do not state a non-compliance with it as a ground of objection. The right of objecting is not given with a view of laying a trap for an adversary, but enabling a party to exclude all but the best evidence, if it can be had.

This view renders it unnecessary to discuss the questions, whether the master of a vessel, who has had seven years’ experience, is a judge of the strength of casks, or whether the prior interrogation of him by the objecting party, in reference to similar matters, is an admission of his competency.

The conversation between the stevedore and one of the defendants (Stern) was also properly excluded; the stevedore may have been the owners’ agent to stow the cargo, but this would not give him authority to admit away his rights, even in regard to such stowage; and if it was intended to prove any notice of anything peculiar about the casks, which required more "care in their stowage, the question was not sufficiently pointed.

It is difficult to understand for what purpose the condition of the entries in the port wardens’ office, in relation to the cargo in question, was introduced. The defendant himself introduced a copy of the survey in evidence, reserving the right of producing the original as to the last two lines. He next attempted to prove by Hutchinson that those two lines were added after the survey was made out. I am at a loss to understand how the addition of such statement after a prior admission of it, affected the witnesses’ testimony. He did not testify by the survey, but independently of' it; his omission in making a memorandum, therefore, of a fact, would not shake his oral testimony of its occurrence, and still less would tend to disprove it.

The weight of testimony was against the ability of the casks to resist the pressure and straining, incident to. a voyage. The examining port warden and the master thought they were unable to do so. The defendant Stern, and the cooper, thought they were strong, but how strong did not appear, and another .witness thought that they looked in good condition when put on board.. The verdict of the Jury on that question ought not to be disturbed.

The judgment and order denying a new trial should be affirmed with costs.

Judgment accordingly.


text:
    Augustus B. Theriott et al., Plaintiffs and Respondents, v. Antonio Bagioli, Defendant and Appellant.
    1. Tradesmen who sell goods to a wife upon her husband’s account, after notice from him not to do so, cannot recover from him therefor, unless they show a subsequent promise by him; to pay, or that the' goods sold were necessary and suitable to her condition in life, and that she was not otherwise provided for by her husband.
    2. If the husband has given such notice, the burden of proof is upon the plaintiffs, to show that the goods sold were necessary and not provided by the husband.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 7;
    decided, November 29,1862.
    This was an appeal from a judgment recovered by the plaintiffs.
    The action was brought by Augustus B. Theriott and Chauncey D. Hurd, assignees of John Beck and William Beck, to recover for goods sold to the wife of the defendant, after having been notified not to sell to her on the account of the defendant.
    The goods were sold in 1857, and consisted of articles of female apparel, amounting to $228.13.
    The cause was tried before Mr. Justice Mobcbief and a Jury, on the 19th of March, 1862.
    Eeed, the plaintiffs’ witness, testified that he presented the bill to the defendant in 1858; that he looked at it and said, “ In two years I will pay that.” .This was after-wards repeated. The plaintiffs gave evidence, which was admitted without objection, that Mr. Beck (plaintiffs’ assignor) told witness that defendant had directed the goods to be sent.
    The defendant testified, on his own behalf, that upon the occasion of paying a bill to Beck & Co., in April, 1857, he told them it was the last money he should pay them, and that he did not want them to trust his wife more. Subsequently, he says, he went to Becks’ store, and told them he would not pay any more bills; he said: “If you like to give Mrs. Bagioli goods, give them to her, but not on my account.” He denied that he made the promise to pay, testified to by Eeed, and said that for the last ten years he had provided his wife with all things necessary for her.
    The defendant was asked whether, prior to the date of the bill in suit, he furnished his wife with the necessary articles requisite for her' comfort in her station of life.The question was otgected to, and excluded by the Court. The defendant excepted.
    The defendant’s counsel requested the Court to charge the Jury: 1st. That if the articles in question were sold to the wife, after notice by defendant not to trust the wife on his account, the plaintiffs cannot recover, unless the defendant subsequently promised to pay for them; and, 2d. That the burden of proof whether the defendant did or did not furnish his wife with articles suitable to her condition in life, was upon the plaintiffs. The Judge refused to charge either of these propositions, and the defendant excepted.
    The Judge put the case to the Jury in two aspects: 1st. The goods being sold and delivered to Mrs. Bagioli, and the bill being afterwards presented to the defendant, whether or not he promised to pay the amount of it. 2d. Whether the goods were necessary and suitable to the condition in life in which Mrs. Bagioli lived.
    An exception was also taken to- a part of the charge, which will appear in the opinion of the Court.
    The Jury found for the plaintiffs.

      Stephen B. Cushing, for defendant, appellant;—
    Cited 2 Kent Com., 146, 9th ed., p. 134; Etherington v. Parrot, (1 Salk., 118; 2 Lord Raym., 1006;) Montague v. Benedict, (3 Barn. & Cress., 631,) Blowers v. Sturtevant, (4 Den., 49,) Renaux v. Teakle, (20 Eng. L. &. Eq., 345), Clancy, 23.

      S. B. H. Judah, for plaintiffs, respondents;—
    Cited 4 Wend., 465 ; 4 Barb., 222; Bac. Abr., Tit. Baron and Femme, let. H; 1 Campb., 120; 5 Seld., 207; Etherington v. Parrot, (Salk., 118;) 2 Smith’s Leading Cases, 279; 28 Law Lib.; Notes to Seaton, v. Benedict; Rotch v. Miles, (2 Conn., 638;) 2 Halsted, 142; 2 Strange, 1214.
   By the Court—Monell, J.

I think the learned Justice erred, in refusing to charge, as requested in the two propositions submitted by the defendant’s counsel. The defendant, the husband of Mrs. Bagioli, had given notice to the Messrs. Becks not to sell his wife any more goods on his account. Of this there was no dispute. The notice was given before the goods were sold, and the sale was made by the Becks, with full knowledge that the defendant would not be responsible, unless they could obtain a subsequent promise to pay, or be able to make it appear that the articles furnished were necessary and suitable to her condition in life, and that she was not otherwise provided for by her husband. The husband is bound to provide his wife with necessaries, suitable to her situation and his condition in life. He is bound by her contracts, j for ordinary purchases, from a presumed assent on his J part; but if his dissent be previously made known, the J presumption of his assent is rebutted, and he is not liable, unless the seller shows the absolute necessity of the purchase, for her comfort. (Etherington v. Parrot, 1 Salk., 118; Ld. Raym., 1006.) This doctrine is fully recognized in this country, and is believed to be founded on principles of justice. (2 Kent. Com., 146, 9th ed., p. 134; Mott v. Comstock, 8 Wend., 544.) Hence, the Jury should have been told that if they believed the defendant had given notice not to sell to his wife on his account, they must, to entitle the plaintiffs to a verdict, find, either that the defendant had promised to pay, or that e the goods were absolutely necessary for her comfort. So far from this, the learned Justice had previously excluded the inquiry of the defendant, whether he did not furnish his wife with the necessary articles, requisite for her comfort, and no evidence was given or offered by the plaintiffs, that the goods in ques- - tion were necessary.

The Judge did, however, charge, that if they did not find the promise to pay, and found that the defendant had given the notice not to trust his wife, then they were to inquire whether the goods were suitable and necessary to the condition in life in which Mrs. Bagioli lived. “Because,” says the learned Justice, “ it does not appear that the defend “ant furnished his tvife with any articles for her use.” And if they found they were suitable and necessary, the defendant was liable, although he had not promised, and had made his dissent previously known.

The theory of the charge was that the defendant would be liable, although he had given the notice, if the Jury believed the articles were necessary, and that the defendant must show that they were not necessary, and not the plaintiffs that they were. There was no evidence from which the Jury could determine the suitableness of the goods to the condition in life of Mrs. Bagioli. The plaintiffs had proved nothing on that subject, and the defendant was not permitted to disprove it. A concurrence by the’Jury that the articles were necessary, would have been, not only unsupported by evidence, but clearly against the evidence.

As the case stood at the close of the evidence, I think the defendant was entitled to a verdict. But the view I. have taken of the other questions renders it unnecessary for me to say whether the motion to dismiss the complaint came too late.

I am clearly of opinion that the learned Judge erred, both in refusing to charge as requested by the defendant’s counsel, and in charging, as he did substantially, that the burden of proof that the articles were not necessary, was on the défendant.

For these reasons I think the judgment should be reversed and a new trial granted, with costs to abide the event.

Order accordingly.


author: White, J. Bqsworth, Ch. J.

text:
    George Carter, Plaintiff and Appellant, v. Frederick Koezley, Defendant and Respondent.
    1. It is essential to the sufficiency of an answer stating new matter as a defense, that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered.
    2. In an answer setting up title or right of possession to land, under a sale for taxes, it is not enough to allege that the property was duly sold for non-payment of a tax duly imposed according to the statute. It is essential to state facts showing that a tax was duly imposed on the property, for the non-payment of which the authorities might lawfully sell it, and that the proof of non-payment required by the statute to authorize a sale, had been made.
    3. An answer, which is defective in this respect, is not aided by section 161 of the Code of Procedure, which authorizes pleading a judgment or other determination of a Court or officer of special jurisdiction, by stating that it was duly given or made, without stating the facts conferring jurisdiction. If the imposition of a tax could be deemecf to be within this provision, the answer should designate by whom the tax was imposed.
    (Before all the Justices.)
    Heard, December 7, 1861;
    decided, December 21, 1861.
    This was an appeal from an order overruling a demurrer to an answer.
    The action was brought to recover possession of a lot of land in Eighty-third street, in the City of Hew York, with damages for withholding possession.
    The answer interposed, in addition to a general denial, two defenses, the purport of which is sufficiently stated in the opinions. To these defenses the plaintiff demurred, on the ground that they were insufficient.
    At Special Term the demurrer was overruled, the Court holding that it is needless to set forth the whole chain of facts necessary to be proved, citing Gihon v. Levy, (2 Duer, 180.) From the order entered on this decision, the plaintiff appealed.

      John Townshend, for the plaintiff, appellant.
    I. Section 162 of the Code does not apply, and the former rule should govern.
    H. An answer must contain, * * * a statement of new matter constituting a defense. This is imperative, (M’Kyring v. Bull, 16 N. Y. R., 297,) and the statement must be of all those facts which defendant must prove to defeat a recovery. (Catlin v. Gunter, 1 Duer, 266; Manning v. Tyler, 21 N. Y. R., 567.) That the answer would entitle the defendant to prove his case on a trial, does not make it sufficient. (White v. Spencer, 14 N. Y. R., [4 Kern.,] 248; Voorhies’ Code, 227, ƒ, 229, a; Smith v. Lockwood, 13 Barb., 209; Hatch v. Peet, 23 Id., 575; Farrington v. Morgan, 20 Wend., 207.) The facts must be set forth, so that the Court can determine whether they constitute a defense. Alleging that an act was duly done, alleges no fact other than the doing. ‘ ‘ Duly ’ ’ expresses no fact. (Graham v. Machado, 6 Duer, 517; Myers v. Machado, 14 How. Pr., 149.) All the cases in which the allegation that an act was “duly” performed has been upheld, are cases where the word was mere surplusage, and where the allegation would have been sufficient without it, but, perhaps, uncertain. (People v. Walker, 23 Barb., 304; People v. Ryder, 12 N. Y. R., [2 Kern.,] 433; Fowler v. N. Y. Indemnity Ins. Co., 23 Barb., 143; Woodbury v. Sackrider, 2 Abbotts’ Pr., 405; Sere v. Coit, 5 Id., 482; Farmers' Bank v. Empire Stone Dress. Co., 10 Abbotts’ Pr., 47; French v. Willet, 10 Id., 102; Scrantom v. Farmers' Bank of Rochester, 33 Barb., 527; Stewart v. Beebe, 28 Barb., 34.) Such cases afford no ground for demurrer; but when the word “duly” is put in lieu of some traversable fact not stated, it is no excuse for the omission, and the pleading is demurrable. (Dayton v. Connah, 18 How. Pr., 326; White v. Joy, 3 Kern., 86; Chautauque Co. Bank v. White, 2 Seld., 236; Bangs v. McIntosh, 23 Barb., 591; Myers v. Machado, 6 Abbotts’ Pr., 198; Hulburt v. Young, 13 How. Pr., 414; Graham v. Machado, 6 Duer, 517.)
    III. It might be sufficient to state enough to show jurisdiction to sell, and allege taliter processum fuit that a lease was made. Nothing is alleged to have occurred intermediate the sale and lease, but in the interim a redemption notice is to be published. The lease is, by statute, conclusive evidence of the regularity of the sale, but not of the redemption notice. (Doughty v. Hope, 3 Denio, 603; 1 Comst., 79 ; Van Alstyne v. Erwine, 1 Kern., 331.)
    IY. The lease might have been duly made, and yet the redemption notice be defective. Supposing the proceedings all regular to the lease. The lease is not to become absolute until a subsequent notice is given, the proof of service of such notice filed, and a certificate of compliance with the statute obtained. (Laws 1841, ch. 230, §§ 3, 4, 6, 7; Laws 1843, ch. 235, § 6, p. 335; Laws 1843, ch. 230, art. III, §§ 20, 21, 24, p. 327; Laws 1853, ch. 579, § 3, p. 1065; Curtis v. Follett, 15 Barb., 342.)
    The pleadings will be taken to be as strong as the facts will warrant. (Cruger v. Hudson R. R. R. Co., 2 Kern., 201.)

      M. L. Townsend, for the defendant, respondent.
    The answer sets up facts, which, being admitted by the demurrer, show a right of possession in defendant, viz.: 1st. A sale duly made in pursuance of the statute, by the Mayor, &c., for a tax duly imposed, to defendant’s grantof (prior to plaintiff’s seizin); 2d. Due execution and delivery of a lease on such sale pursuant to the statute, to defendant’s grantor (prior to the plaintiff’s seizin); 3d. “That defendant had at the time of the action and now has, a leasehold interest in the premises, and a right to possession of the same;” (Under this allegation alone, defendant might prove any facts which would show any leasehold interest, or any right to the possession); 4th. That Boss, (prior to plaintiff’s seizin), being in possession and having a leasehold interest for 98 years, leased the same to defendant’s assignor for 15 years. This gives defendant a title and a right of possession, prior to plaintiff’s seizin.
   White, J.

In this case, which is an action of ejectment to recover possession of a lot of land in 83d street, in'the City of Hew York, the defendant attempts to interpose a special answer or plea of title in himself, to the possession of the premises, by virtue of a lease for a term of years not yet expired, executed by the Mayor, Aldermen and Commonalty of the City of Hew York, upon a sale made by them for non-payment of taxes duly imposed on said lot; and which lease and term of years had come to him by assignment, and are now, and were, at the commencement of the action, owned by him. The main allegation in the answer states, that the premises “were duly sold in pursuance of the “ statute in such case made and provided by the Mayor, “Aldermen and Commonalty of the City of Hew York, to “ one Arthur Boss, for the term of twenty years, for the “non-payment of a certain tax duly imposed thereon, in “pursuance of the statute in such case made and pro- “ vided; and that'the said Mayor, Aldermen and Oommon- “ alty did, thereupon, in pursuance of the statute in such “ case made and provided, and on or about 27th April, “1855, duly execute, acknowledge and deliver to said “ Arthur Boss, in due form of law, a lease of said lots, Hos. “14 and 15, for the term of twenty years, then next ensu“ing.” Then follows an allegation of the assignment of the lease to the defendant, and that by virtue- thereof he possessed a leasehold interest in and to, and a right to the possession of, the lot described in the^lease, which is the same land mentioned in the complaint,. &c.

A further attempted defense is set up, stating, in substantially the same terms, a second sale and lease, by the Mayor, Aldermen and Commonalty, of the same premises, and a possession by the defendant, of a leasehold interest thereunder.

The plaintiff demurs to all that part of the answer, which sets up these pretended defenses, on the ground that they constitute neither a counterclaim nor a defense.

We think that the above allegations, contained in the answer, show no valid, title to the possession of the premises. It is not affirmatively, and in direct terms, stated in them, that a tax had been imposed upon the land in question by the proper authorities, and in the proper manner, setting all forth specifically ; nor is it stated that the proof of non-payment of the tax, (which is a preliminary required by the statute,) had been made to the officer designated in that behalf by the statute; all of which allegations are necessary to show a right in the Mayor, Aider-men and Commonalty to sell the land and .give a lease of it; and there being, therefore, no right to sell or to lease shown to exist in the Mayor, Aldermen and Commonalty, in this particular case, the lease affords no protection or justification to the defendant.

The order made at Special Term must, therefore, be reversed, the costs of the appeal to abide the event of the suit; and the defendant, upon payment of the costs of the demurrer at the Special Term, to have leave to serve an amended answer in ten days after service upon his attorney, of the order to be entered upon this decision.

Bqsworth, Ch. J.

neither of the defenses demurred to states when, by whom, for what cause, or under what statute, the alleged tax was “imposed” on the premises in question; neither does it state the amount of the tax imposed, nor expressly aver that any part of it was unpaid at the time of the alleged sale of the said premises.

That such a plea was bad on general demurrer, prior to the Code, is settled by the cases of Frary v. Dakin, (7 Johns., 75,) Morgan v. Dyer, (10 Id., 161,) Wyman v. Mitchell, (1 Cow. 316,) Dakin v. Hudson, (6 Id., 220,) Bowman v. Russ, (Id., 234,) Sheldon v. Hopkins, (7 Wend., 435,) and City of Buffalo v. Holloway, (7 N. Y. R., 493.)

It is as essential to the sufficiency of an answer under the Code, stating new matter as a defense, as to that of a special plea, prior to the Code, that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered.

The Code has not introduced any new definition of the word fact, nor any new test of the sufficiency of new matter which will constitute a defense.'

Section 161 of the Code does not aid the answers in question. They do not allege, nor purport to allege, a judgment or other determination of a designated Court, or officer of special jurisdiction. If the imposition of a tax upon real property under any statute of this State, for any cause, can, by any liberal interpretation of language, be regarded as a determination of an officer or officers of special jurisdiction within the meaning of this section, the answer does not attempt to state by whom the tax was imposed.

The parts of the answer demurred to are, in brief, that the defendant has a right to the possession of the premises in question, as assignee of a lease, of a specified date, for a term of years, executed by the Mayor, &c., in pursuance of a sale, by them duly made on a day named, of the premises in question, for the non-payment of a tax duly imposed thereon.

Such an answer is insufficient; it states none of the facts relied upon to show that a tax was duly imposed on the property, for the non-payment of which, the Mayor, &c., of New York might lawfully sell it; nor, if one had been imposed, does it aver the further facts essential to create authority in that body to advertise and sell.

The order appealed from must be reversed, and judgment ordered for the plaintiff; but with liberty to the defendant to amend his answer, on payment of the costs of the demurrers, prior to the appeal; the plaintiff’s costs of the appeal to abide the event.


text:
    Julius S. Gilman, Plaintiff and Respondent, v. Isaac J. Oliver, Defendant and Appellant.
    It was decided in this case, that the fees of a stenographer, whose employment is directed by the Court, under section 256, of the Code of Proce- • dure, cannot be taxed as a disbursement in the cause.
    Heard, at Special Term, before Mr. Justice Monell.
    Heard, in General Term, before Bosworth, Ch. J., and Moncrief, Barbour and Monell, J. J.,
    March 8, 1862;
    decided March 29, 1862.
    See the point decided, in the index to this volume, under the title, “ Practice—costs.”
   See the appeal reported at length, with the opinion of the Court at General Term, in 14 Abbotts’ Pr., 174.