author: Miller, J.

text:
    Sylvester Viets, Respondent, v. The Union National Bank of Troy, Appellant.
    Plaintiff, at the request of B., deposited certain moneys belonging to the latter, with defendant; he made the deposit, however, in his own name, to the credit of a deposit account he then had with defendant, and gave to B. two checks for the amount, which the latter, on February 22, 1869, indorsed and delivered to E. as part consideration for her promise to marry him On the next day, proceedings de lunático inqmrendo were instituted against B. and an inquisition therein, held March tenth, adjudged him to be of unsound mind and that he had been, for a period of six months. Pending the proceeding, an order was made enjoining the defendant from paying over the moneys to any one. On March thirty-first an order was made confirming the inquisition and directing defend ant to pay the said moneys to the committee thereby appointed, and on April fifteenth defendant complied with the order. On March sixth, one of the checks was presented to defendant for payment and refused. On March eighth B. was married to E. The other check was presented and payment refused August 28,1871. In an action to recover the amount so deposited, held, that as the money belonged to B. when deposited, although the deposit was in plaintiff’s name, it still remained the property of B. and the payment to the committee was a legal payment which discharged defendant; that, assuming there was an equitable right in E. to the money arising out of the ante-nuptial contract, such equity could not he invoked against the bank, it having no notice of the same when it made payment.

      It seems that if any such equitable claim existed it could only be enforced in an action against the committee.
    The committee so appointed brought an action against E. to set aside the marriage on the ground of the alleged lunacy of B. The trial resulted in a finding that, at the time of the marriage, B. was of sound mind and capable of entering into a marriage contract, and judgment was entered in favor of E. Held, that this did not affect the validity of the appointment of the committee or of the payment by defendant.
    This action was brought in 1878. Held, that the right of action, if any existed,was barred by the statute of limitations; and this,although defendant had, within six years, paid checks drawn by plaintiff for the balance due him for moneys deposited on his own account, aside from the moneys in question.
    While a check drawn by a depositor against a general bank account does not operate as an assignment of so much of the account, it authorizes the payee, or one to whom he has indorsed and delivered it, to make a demand, and a refusal of the bank to pay on presentation gives the drawer a right of action, in case he has funds in bank to meet the check and the refusal was without his authority.
    The presumption is that a third person presenting a check payable to the order of and indorsed by the payee has authority to present it, at least so far as the drawer is concerned.
    The implied contract between a bank and its depositors is that it will pay the deposits when and in such sums as are demanded, the depositor having the election to make the whole payable at one time by demanding the whole, or in installments by demanding portions ; and whenever a demand is made by presentation of a genuine check in the hands of a person entitled to receive the amount thereof, for a portion of the amount on deposit, and payment is refused, a cause of action immediately arises, and the statute of limitations begins to run as against the installment so made due and payable.
    The provision of the Code of Civil Procedure (Subd. 8, § 414) excepting from the limitations contained therein a case where a person who, at the time said Code took effect, was entitled to commence an action or proceeding, and who commenced the same within two years thereafter, and making the provision of law previously in force, althoughlthen repealed, still applicable thereto, did not operate to extend the time for the bar of the statute of limitations to take effect ; it merely left actions or proceedings brought within two years to be governed by the law in force when the Code went into effect,

      Viets v. Union Nat. Hanh (81 Hun, 484), reversed.
    (Argued January 29, 1886;
    decided March 2, 1886.)

      Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 4, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. (Reported below, 31'Hun, 484.)
    This action was brought to recovera balance alleged to be due plaintiff on his deposit account with the defendant.
    The material facts are stated in the opinion.

      James Lansing for appellant.
    The bank, upon receiving the deposit, became debtor ostensibly to the depositor, but equitably to the real owner, and upon proper demand was liable to him. (Van Allen v. Am. Nat. Bk., 52 N. Y. 1; Stephens v. Bd. of Education, 79 id. 183.) When it received notice that the fund in question was the property of Banker, it was its duty to hold it for his benefit. And it would have subsequently paid it to Yiets at its peril. (52 N. Y. 1.) The plaintiff, having deposited the fund in accordance with the direction of the owner, was relieved from all liability for loss happening without his fault. (52 N. Y. 1; Pennell v. Deffell, 4 De Gex, M. & G. 372.) If á delivery of the checks did amount to an equitable assignment of the fund, then, according to the facts disclosed, Mrs. Banker became, on the 22d of March, 1869, the owner of the fund, and she alone could maintain the action. (Risely v. Phoenix Bk. of N. Y., 83 N. Y. 318; Coats v. First Nat. Bk. of Emporia, 91 id. 20.) The inquisition found and the order made by the court thereon, directing the defendant to pay over the money in question to David A. Banker, committee, having been made by a tribunal that had jurisdiction of the person and property of the said John Banker, is binding upon him and his privies, and was sufficient to pass the title to his committee. (Smith v. Smith, 79 N. Y. 634; Dezell v. Odell, 3 Hill, 215; Corkill v. Launder, 44 Barb. 218; Herman’s Law of Estop., § 409; Whart. on Ev., §§ 1087, 1151.) Assuming that plaintiff, in making the deposit, became and thereafter remained a creditor of the defendant, then we submit that this action is barred by the statute of limitation. (Payne v. Gardner, 29 N. Y. 146; Powell v. Adams, 68 id. 314; Downs v. Phoenix Bk., 6 Hill, 297; Oddie v. Nat. City Bk. of N. Y., 45 N. Y. 735, 743; Carroll v. Cone, 40 Barb. 220; Farmers & Mech. Bk. v. Planters' Bk., 10 Gill. & J. 449; Wood on Lim. of Act. 40, 540; Bk. of Mo. v. Benoist, 10 Mo. 519; Angell on Lim. of Act., § 42; Battley v. Falkner, 5 E. C. L. 172; Arnott v. Holden, 22 L. J. Q. B. 19; Whitehead v. Lord, 21 L. J. Exch. 239; McDonald v. Stohey, 1 Mon. 338; Byles on Bills, 14, 21; 2 Daniel on Neg. Instr. 302, 310; Morse on Bk. and Bkg. 36, 529; Mandeville v. Welch, 5 Wheat. 356; Marzetti v. Williams, 1 B. & A. 414; Rollins v. Stewart, 78 E. C. L. 594; Watts v. Christie, 11 Beav. 546; Bk. of Brit. No. Am. v. Mer. Nat. Bk. of N. Y., 91 N. Y. 106; Murray v. Coster, 20 Johns. 576, 586; Rundele v. Allison, 34 N. Y. 180; Kelsey v. Griswal, 6 Barb. 436; Bruce v. Tillson, 25 N. Y. 196.) An account stated can only be opened when the party objecting shows clearly that he has been misled by fraud, mistake or manifest error. (Harley v. Eleventh Ward Bk., 76 N. Y. 618; Thompson v. Bk. Brit. No. Am., 82 id. 7; Lockwood v. Thorne, 11 id. 170; 18 id. 294; Angell on Lim., § 150; Peck v. N. Y. & Liv. U. S. M. S. S. Co., 5 Bosw. 236.) To take a case out of the statute, the part payment must be shown to have been a payment in part discharge of the particular debt sued for, and to have been so intended to recognize the debt in question as subsisting. (Miller v. Talcott, 46 Barb. 172; Deyo's Ex'rs v. Jones' Ex'rs, 19 Wend. 491.)

      R. A. Parmenter for respondent.
    A check drawn upon a general deposit and delivered to a third person does not operate as a transfer or assignment of any part of the general fund, or create a lien at law or in equity upon the deposit. (Ætna Nat. Bk. v. Fourth Nat. Bk., 46 N. Y. 82, 87; Dykers v. Leather Mfg. Bk., 11 Paige, 612; Cowperthwaite v. Sheffield, 3 N. Y. 251; Chapman v. White, 6 id. 412; Tyler v. Gould, 48 id. 682; Atty. Genl. v. Contl. L. Ins. Co., 71 id. 325; Bk.

      of Brit. No. Am. v. Merch. Nat. Bk. of N. Y., 91 id. 106.) The defense of the statute of limitation is not available to the defendant on this appeal under the proofs and the exceptions. (Goillotel v. Mayor, etc., 87 N. Y. 441; Downs v. Phoenix Bk., 6 Hill, 297, 299; Payne v. Gardner, 29 N. Y. 146, 171-172; Rogers v. Weir, 34 id. 463, 471; Story on Bailm. 66, § 88; Risley v. Phoenix Bk., 83 N. Y. 318.)
   Miller, J.

The controversy in this action arises in reference to certain moneys belonging to one John Banker, deceased, which were deposited with the defendant to the credit of the plaintiff. Previous to this time Banker was the owner of a bond and mortgage of about $6,000, on a farm formerly belonging to him upon the sale of which the mortgage was executed. This mortgage he sold and received a check for the amount of the sale. On the 19th of February 1869, the plaintiff at Banker’s request took his check to the bank, and had it cashed and from-the proceeds paid an overdue note, upon which Banker was indorser of about $600, gave Banker when he returned about $200, and on the same day deposited the balance, $4,867.83, with defendant in his own name. He then by direction of Banker, and on the same day, drew two checks payable to Banker, one for $3,500 and the other for $1,367, and delivered them to him. . On the twenty-second of February these two checks were indorsed by Banker and delivered to one Ellen M. Houghtaling as part consideration for her promise of marriage with said Banker. On the twenty-third of February proceedings were instituted by David A. Banker, son of John Banker, in the nature of a writ de lunático inguirendo, to inquire as to the lunacy of said John Banker, and a commission issued directing an inquisition to be held, and by virtue of said inquisition held March tenth, it was ad judged that Banker was of unsound mind and incapable of governing himself or managing his property and had been in such state of lunacy for a period of six months. Pending the proceedings an order was made by the court enjoining the bank from paying over to any one the money deposited with it until further order of the court. On the thirty-first of March, an order was made confirming the inquisition, and directing the bank to pay over the money deposited to David A. Banker as committee of John Banker, and on the fourteenth of April the defendant, on receiving an indemity bond, paid over to the committee accordingly. On the 6th of March, 1869, the check for $3,500 was presented to the bank for payment and payment refused, and on the 28th of August, 1871, the check for $1,367 was likewise presented for payment, and payment refused. On the 8th of March, 1869, John Banker was married to Ellen M. Houghtaling. After the above-named two checks were presented to the bank for payment, and payment refused, Mrs. Banker recovered a judgment against the plain tiff for the amount of the same. Banker died on the 14th of September, 1869, and after his decease an action was brought in the Supreme Court by his committee to set aside his marriage on the ground of his alleged lunacy. On the trial of the action, February 24, 1870, it was found that at the time of his marriage, March 8, 1869, Banker was not of unsound mind; that after his marriage he had lucid intervals, and in such lucid intervals recognized such marriage by cohabitation and otherwise, and that at the time of his death he was not of sound mind, and judgment was entered in accordance with these findings.

The plaintiff’s right to recover in this action does not rest upon the ground that he was the owner of the money deposited in the bank or had any absolute title to the same. It clearly did not belong to him, and if this action can be maintained, it must be for the reason that the deposit in his name with the consent of Banker and the making and delivery of the checks under the circumstances stated, conferred upon him the right to enforce payment thereof against the bank. .

As the money in the bank belonged to John Banker and the deposit was made by his direction, it mattered not that the deposit was made to 'the plaintiff’s individual account, and in an action brought by the principal the bank could not set up a want of privity. (Van Alen v. Am. Nat. Bk., 52 N. Y. 1.) We must, therefore, assume that the money deposited by the plaintiff was the property of John Banker while it remained in the possession of the defendant.

Such being the case the question arises whether the payment which was made by the bank to the committee, who had been appointed by the Supreme Court in the proceedings against Banker as a lunatic, was a legal payment which discharged the bank from liability and bars the plaintiff’s right to maintain any action for the same.

The law makes provision for the appointment of a committee of the personal estate of a lunatic and vests in such committee the right to possession of the estate, and after an adjudication of lunacy has been made and confirmed by the court, and a committee of his estate duly appointed and qualified, such committee occupies the same position and fills the same place as the lunatic in regard to his personal estate and property. He has the same control and possession thereof, and in all ordinary matters the right to deal therewith, as the lunatic enjoyed before he was found to be of unsound mind. The committee is the representative of the lunatic in respect to all matters connected with his estate.

When, therefore, on the 10th of March, 1869, in proceedings had against John Banker, the regularity of which is not disputed, a judgment of lunacy was obtained against him, and thereupon subsequently a committee appointed to take charge of his estate, he, Banker, became divested of all right to control Ms property in accordance with the findings under the inquisition had. That inquisition determined not only that he was a lunatic on said tenth day of March, but that he had been such for a space of six months previous. A short time after that, the committee, who had been duly appointed and qualified, applied to the defendant as the representative of Banker, to whom alone the money deposited by the plaintiff belonged, and, exhibiting his authority, demanded payment of the money and it was paid to him. Banker, who was the owner of the money, had no right to receive it, because he had been declared a lunatic and the committee was the only person whom the law recognized as having authority for such a purpose.

Even if it be assumed that there was an equitable right in Mrs. Banker to the money arising out of the ante-nuptial contract with her husband, such equity cannot be invoked as against the bank that had no notice of the same, and in good faith paid the money to the legal representative of the owner thereof. The bank is entitled to protection for the reason that it paid the money to one who apparently had the right to receive it. If any equitable claim existed in favor of any third party, it could only be prosecuted and enforced in an action against the committee who had received the money and not against the bank in contravention and repudiation of its right to pay which it had exercised in good faith to one ostensibly vested with lawful authority to receive the same. With this apparent lawful authority presented by the committee to the bank, it was not required to examine and determine the equities of other parties, of which it had no knowledge, to the fund, and it had a right to assume that the committee appointed by the court had full power to act. It must be conceded that if the adjudication of lunacy was in force at the time the payment was made, it was a valid and legal payment and an effectual bar to any claim by the plaintiff or any other person to recover the money of the defendant. Such adjudication, however, is assailed by the respondent’s counsel, and it is insisted that the question of lunacy is out of the case because it was shown that the presumption of lunacy arising from the inquisition in the lunacy proceedings against John Banker, had been overcome and wiped out by -the subsequent judgment in the equity suit brought by David A. Banker, the committee, against Ellen M. Banker, to declare the marriage contract null and void, whereby it was adjudged that at the time of his marriage on the 8th of March, 1869, John Banker was not a person of unsound mind, and therefore he must be regarded, for the purposes of this appeal, as a person of. sound mind fully capable of managing his affairs and disposing of his property at the various times during which the transactions, out of which this controversy arose, transpired. We do not think that such was the effect of the judgment in the action referred to, and all that was established thereby was the sanity and ability of Banker to enter into the marriage contract on the eighth of March, two days before the inquisition was held adjudging him a lunatic.

The other findings in the case, as we have seen, evince that Banker was of unsound mind after the eighth of March and at the time of his death. Hone of them are in conflict with the general finding of the inquisition that he was of unsound mind for six months prior to the time it was held. The only fact that was established by the verdict and judgment in the action to set aside his marriage was the sanity of Banker at the time he entered into the marriage contract, and this is entirely consistent with the finding of the inquisition that he was a lunatic two days afterward, and with the fact that he was such on the twenty-second of February, when the alleged transfer of the checks was made to Mrs. Banker.

It cannot, we think, be denied, in view of all the circumstances, that the judgment in the action referred to only covered the day of Banker’s marriage, to which alone it had reference. This is entirely apparent from the previous inquisition, which had adjudged that he was a person of unsound mind and a lunatic long prior to his marriage. He was found to have been a lunatic for several months prior to that time by the first adjudication, and by the second that he was sane at the time of his marriage and had lucid intervals, but was of unsound mind at the time of his death. Taking all these facts in connection, there is no ground for claiming that Banker was not of unsound mind for a long period anterior to his marriage and after the same, with lucid intervals to the day of his death. Such being the case, the last adjudication could not affect the conclusion arrived at upon the inquisition and the appointment of the committee by reason thereof. To all intents and purposes during these transactions, with the single exception of the day of his marriage, Banker was a person of unsound mind, incapable of managing his affairs, and his acts during the transactions referred to were invalid and liable to be set aside on account of his lunacy. Whatever rights, therefore, existed in favor of Mrs. Banker or of the plaintiff could only be vindiGated by an action to obtain the money from the committee to whom it had been lawfully paid. Neither of these parties could ignore the effect of the findings, upon the inquisition, against Banker by an action against the defendant. Their remedy, if any existed, lay in a different direction, as we have seen, and it cannot be obtained in this present action.

It follows that the order appointing the committee, upon the findings of the inquisition, having been made by a tribunal that had jurisdiction of the person and property of the said John Banker, was binding upon Banker and his privies and sufficient to authorize the payment by the bank to the committee, and that the court erred in holding the defendant liable to the plaintiff for the amount of the two checks deposited with it by the plaintiff.

We are also of the opinion that the plaintiff’s right to recover in this action, which was brought in 1878, was barred by the statute of limitations.

While it is true that a check drawn against a general bank account does not operate as an assignment, and that, as a general rule, the holder cannot maintain an action against the drawee becaxise of want of privity, it is equally true that the giving of a check authorizes the payee, or some person taking the check, to make demand of payment (Bk. of British N. Am. v. Merchants' National Bk., 91 N. Y. 106, 111), and the refusal to pay on presentation of the check, which presentation is equivalent to a demand of payment, gives to the drawer a right of action, in case he has funds in the bank to meet the check, and the refusal to pay was without his authority'.

It appeared indisputably, and is substantially found by the trial court, that the two checks given by plaintiff to Banker and by him indorsed to Ellen M. Houghtaling, were presented to the bank, defendant, for payment, and payment refused, the one in March, 1869, the other in August, 1871. At the time of such refusal there was written upon one of the checks “ Payment refused ” and upon the other “no funds.” It is to be presumed, at least so far as plaintiff is concerned, that the person presenting the checks had the right so to do, and nothing is shown to the contrary ; such being the case, the bank became liable when presentation was made for the amount of each check, and payment of the same was refused.

We think that a demand for the whole balance on deposit is not requisite in order to enable the depositor to maintain suit against the bank. The implied contract between a bank and its depositor is that it will pay the deposits when and in such sums as are demanded. Whenever a demand is made by presentation of a genuine check in the hands of a person entitled receive its amount, for a portion of the amount on deposit, and payment is refused, a cause of action immediately arises. For the balance no suit can be brought until demand is made. In other words, the depositor has the election to make the whole claim payable at one time by demanding the whole, or in installments by demanding portions thereof, and it would be a novel doctrine that when the claim has thus been made payable in installments, no action could be brought for an installment which has become due and payable, because there is a residue of the claim not due.

But again, the general rule above stated, i. e. that the holder of a check cannot maintain an action against the drawee, is not applicable to this case. The money deposited by plaintiff belonged to Banker, and the deposit in the bank was made by his direction. It matters not that the deposit was made to his, plaintiff’s, individual account, and in an action brought by the principal against the bank, upon refusal to pay his agent’s check, the bank cannot set up a want of privity. (Van Alen v. Am. Nat. Bk., 52 N. Y. 1.)

Banker, to whom the money belonged, or any person to whom he had transferred his claim against the bank, could have maintained an action on presentation and refusal to pay the checks, and upon demand and refusal the statute began to run.

The claim made by the respondent’s counsel, that if the action had been barred by the statute of limitations it was revived by the payment by the bank of the two checks of the plaintiff, one on December 2, 1872, of $18.82, and the other on March 27,1873, of §4.33, and that the defendant was thereby estopped from interposing the defense of the statute of limitations until six years after that, is not well founded. The amount of these two checks constituted the balance which was due to the plaintiff from the defendant for moneys deposited on his own account separate from the moneys belonging to Banker for which the checks in question in this action were drawn. As the depositor has a right to draw his check for separate portions of the money belonging to him on deposit and a cause of action arises upon presentation and refusal to pay such check, the payment of the checks drawn after those which are the subject of controversy in this action, could not affect the cause of action which arose upon their presentation to the bank and its refusal to pay. The payment of the two checks referred to did not authorize the conclusion that the defendant intended to recognize the fact that the other checks were still a subsisting indebtedness against which the statute had not commenced to run, but such payments were entirely separate and independent transactions, having no reference whatever to the checks in suit. Under the facts there is no ground for claiming that the payment of the checks of December 2, 1872, and March 27, 1873, was a recognition of any indebtedness beyond them, and operated as a revival of the debt and prevented the statute from running.

The respondent’s counsel also claims that under subdivision 3, section 414, of the Code of Oivil Procedure, a person entitled to commence an action when the Code took effect might commence such action before the expiration of two years after the Code should go into effect, and that as the Code went into effect May 1, 1877, he had until May 1,1879, to bring his action before it would be barred by the statute of limitations. We do not understand such to be the rule under the provision cited, which declares that a person entitled under said section to bring an action when the Code took effect where he commences the same before the expiration of two years after the Code took effect his action is governed by the same law applicable thereto immediately before the Code went into effect. This provision of the Code only left actions brought within two years to be governed by the law applicable to the case at the time the Code went into effect, and in no way operated to extend the time for the application of the statute of limitations. It remains in force the same as before the enactment of the Code.

There are other questions in the case, but in view of the conclusions already arrived at, their examination is not necessary.

The judgment should he reversed and a new trial granted, with costs to abide the event.

All concur.

Earl, Daneorth and Finch, JJ., on both grounds discussed in the opinion; Andrews, J., on first ground; Ruger, Oh. J., on second ground. Rapadlo, J., absent.

Judgment reversed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    John A. O'Reilly, Respondent, v. The Corporation of the London Assurance, Appellant.
    J., an agent of defendant, was authorized by it to receive proposals for fire insurance, fix rates, receive moneys and countersign, issue and renew policies which were furnished him in blank, signed by defendant’s manager, to be filled by him; he entered the insurance he effected in books kept by him, and made daily and monthly reports to defendant. J. issued a policy to 0., which contained a clause providing that it might “ be continued for such further time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt is given for the same.” In an action wherein plaintiff, as assignor of C.,claimed a renewal of the policy, his evidence was to the effect that about a month before the expiration of the policy, J. and G. had a conversation in reference to the insurance, in which 0. told J. to renew the policy, and the latter stated he would renew it for another year; a loss occurred after the expiration of the original policy; no renewal receipt was ever executed; no renewal was indorsed on the policy or entry thereof made by J., or report thereof made by him to defendant; the premium was not paid, tendered or otherwise arranged, and no action or further conversation had between J. and G. in regard to the insurance until after the fire, although J. and C. were near neighbors. During six months after the fire, G. made no claim under the policy and gave no notice of his loss. Held, that the testimony failed to show, and did not justify a finding of a renewal of the policy.
    (Argued March 1, 1886;
    decided March 16, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made January 23, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was upon an alleged agreement to renew a policy of fire insurance.
    The material facts are stated in the opinion.

      Louis Marshall for appellant.
    Jackson was not authorized by the defendant to make the alleged contract of renewal. (Mersereau v. Phoenix M. L. Ins. Co., 66 N. Y. 278.) By the terms of the eleventh condition of the policy, J ackson,in any transactions that may have occurred between him and Craner with reference to the renewal of the policy annexed to the complaint, acted as the agent of Craner and not of the defendant, and he not having communicated the fact of such negotiations that may have occurred between him and Craner to the company, and the latter not having taken. any action thereon, no contract of insurance was effected in favor of Craner. (Sargent v. Nat. Ins. Co., 86 N. Y. 626; Sower v. Com. Un. Ins. Co., decided recently in Supreme Court of Pennsylvania; Rohrback v. Germania F. Ins. Co., 62 N. Y. 47; Alexander v. Germania F. Ins. Co., 66 id. 464; Van Schaick v. Niagara F. Ins. Co., 68 id. 434.) Whatever may have been Jackson’s legal relation to the defendant, and whatever may have been his powers, there is not as matter of fact evidence of a contract to renew. (Luby v. H. R. R. Co., 17 N. Y. 131; Anderson v. R. W. & O. R. R. Co., 54 id. 344; People, ex rel. Tenth Nat. Bk., v. Green, 5 T. & C. 379; Dean v. AEtna L. Ins. Co., 62 N. Y. 643; White v. Miller, 71 id. 118; Coulter v. Am. M. U. Ex. Co., 56 id. 585; Nichols v. White, 85 id. 531.) A contract to renew a policy of insurance is a contract to continue the insurance upon the terms and conditian of the original policy, and there can be no recovery for breach of such a contract, except upon showing compliance with the conditions precedent to a recovery upon the policy. (Wood on Fire Ins., § 131; Hay v. Star Ins. Co., 77 N. Y. 235.) There cannot be a recovery in this action, because Craner failed to pay the premium of insurance, and failed to establish a waiver of such payment by the defendant. (Wood on Fire Ins., § 5; Wood v. Poughkeepsie Ins. Co., 32 N. Y. 619; Hambleton v. Home Ins. Co., 6 Bissell, 91.

      John B. Khne for respondent.
    Jackson was the agent of the defendant in the locality in which he acted, and had full authority to make the contract to renew the then existing policy. (Trustees, etc., v. Brooklyn F. Ins. Co., 19 N. Y. 305, 311; Fllis v. Albany City F. Ins. Co., 50 id. 402-409; Angel v. Hartford F. Ins. Co., 59 id. 171; Parker v. Arctic F. Ins. Co., 1 Sup. Ct. [T. & C.] 397; Wood on Fire Ins., § 11.) Jackson was the agent of defendant and not of Craner in making the contract of renewal. (Partridge v. Commercial F. Ins. Co., 17 Hun, 95, 97.)
   Earl, J.

From 1876 until after the commencement of this action, one Amos Jackson was the agent of the defendant at J ordan in this State, under a written appointment by which his powers were limited and described as follows: “ To receive proposal's for insurance against loss and damage by fire in Jordan and vicinity, to fix rates of premiums, to receive moneys, and to countersign, issue, renew and consent to the transfer oi policies signed by the managers for the United States for the London Assurance Corporation, subject to the rules and regulations of said company, and such instructions as might be given from time to time by its managers.” He was furnished by the defendant with blank policies signed by its secretary, which he filled up when applications for insurance were made to him; he entered the insurances effected by him in books kept by him, made to the company daily and monthly reports of his transactions, and made monthly remittances of premiums. On the 14th day of August, 1879, he issued a policy to one Nicholas Craner upon a building owned by him. in the village of Jordan, insuring him against loss by fire to the amount of $1,500 for one year from, that date. ’ The policy contained the following provisions : “ This insurance (the risk not being changed) may be continued for such farther time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same, and it shall be considered under the original representation and for the original amounts and divisions unless otherwise specified in writing.” “ This corporation shall not be liable by virtue of this policy or any renewal thereof unless the premium therefor shall be actually paid.”. In July, 1880, about four weeks before the expiration of the policy, Jackson went to Craner and had the following conversation with him as detailed by Craner in his evidence: He came in and said I had better put another thousand dollars upon the building. He wanted to know if I • was not ready. I said I would run a little risk myself, but I thought that I would not then. Then he spoke about the other, and said it would not be but $15 the next year, and that was low. I told him I thought it was very reasonable, but that I would run some risk myself. I don’t know whether he said when it expired. He said he wanted to put on another thousand. He did some little trading, I guess, with me at the time. He didn’t say any more then; that is all the conversation I remember at the time. Q. Did you state to him that you would pay the premium? A. Nothing was said about it; I told him to renew the policy — it was $1,500, and he wanted a thousand more. I understood him to say he would renew it.” Craner’s son testified that he heard the same conversation, and he stated it as follows: “Jackson wanted to put on a thousand dollars more; father said he thought he would run some risk himself; Jackson thought it would be but one-per cent now, or $15 for $1,500; father said he knew it was low, but that he would carry but $1,500; Jackson said he was a good customer of father’s and would like some of his insurance business ; father said he would carry that, and Jackson said all right, he would ren'ow it for another year; my father told him at the store all right, to keep it in force; that was at the store in 1880; Jackson said he would.” Jackson, called as a witness for the plaintiff, gave a different version of the conversation, and substantially denied that he agreed jo renew the policy. The property insured was destroyed by fire on thS 2d of February, 1881, about seven months after this conversation; and in the meantime, although Craner and Jackson were near neighbors and met almost daily, they had no conversation whatever about the insurance or the renewal of the policy, and the subject was never mentioned between them. Fa renewal receipt was ever executed or given by Jackson to Craner, and the renewal was not indorsed on the policy, and no entry of the renewal was ever made on any paper or in any book by Jackson. The premium was not paid or tendered or otherwise arranged, and no report of the renewal was made to the defendant, and no action whatever was taken by either party in reference thereto previous to the fire. By the same fire which destroyed Craner’s building, Jackson lost a building which was insured by the defendant, and he was present at the fire, and upon informing the defendant of his loss congratulated it and himself for not having any risk upon Craner’s property; and upon being spoken to by Craner the next day after the fire, he stated to him that he was not insured; and during six months thereafter Craner made no claim upon his policy and gave no notice of his loss. In January, 1882, he transferred his claim against the defendant to the plaintiff, who paid $1 therefor, and in addition thereto agreed to give him one-half of what he should recover of the defendant.

Upon these facts we think it cannot be held that Craner had a valid insurance or a valid contract for insurance upon his property. There was no present renewal of his policy, and, considering the terms of the policy and all the circumstances, we think Craner and Jackson could not have supposed or understood that a binding contract for the renewal had been made. The premium was not paid or arranged in any way, and it was not agreed that credit should be given therefor. There was nothing but the casual conversation detailed by the two witnesses which took place four weeks before the renewal would be needed. Further action must have been contemplated by the parties to the transaction. Craner should have paid or tendered the premium and asked for the renewal. It cannot be held that payment of the premium was waived, as the defendant knew nothing about the alleged renewal, and Jackson either did not understand that there was any renewal, or had forgotten the conversation he had had with Craner.

In order to uphold and enforce this insurarice, we would have to go further than any decision of this court has yet gone, and lay down an impolitic rule which would make the business of insurance, transacted through agents all over the country,-far away from their principal, altogether too hazardous and uncertain.

Therefore, without noticing other points argued on behalf of the appellant, we are of opinion that the judgment should be reversed and a new trial granted, costs to abide the event.

All concur, except Dakfokth, J., not voting.

Judgment reversed.


author: Andrews, J.

text:
    In the Matter of the Application of Adelia L. Otis, Executrix, etc., et al.
    After inquisition found and the appointment of a committee of the estate of a lunatic, the court has jurisdiction to direct the application of the estate to the payment of demands existing against it, and this relief may he granted on petition of a claimant.
    Where the estate is insufficient to pay the debts, the assets, personal as -well as real, must he distributed ratably among all the creditors ; tile petitioning creditor is not entitled to a preference.
    A claim for rent under a lease to the lunatic, whether accruing before or after the appointment of a committee, has no intrinsic preference over his other debts, and in the absence of some special equity growing out of the circumstances of the particular case, the landlord comes in simply as a general creditor for the rent unpaid.

      It seems that if the leased premises aré occupied by the committee and ' such occupation is to the advantage of the estate, as when it is necessary to carry on or close up tlie business of the lunatic, the rent accruing during such occupation will be regarded as a reasonable expense incurred by the committee to be paid before the claims of other creditors.
    As, however, the committee takes no title to the estate, he being a mere bailiff to take charge of it, such occupation by him for a time does not make him liable as assignee for the term, it creates no privity of estate between him and the lessor.
    The distinction between such a case and that of a receiver or assignee in bankruptcy pointed out.
    Where, therefore, the committee of the estate of a lunatic continued to carry on his business, occupying for that purpose premises held by him under a lease for a term of years, and thereafter the committee resigned and a new one was appointed who closed up the business, and upon petition of the landlord that said committee be required to pay rent subsequently accruing, it appeared that the committee had not" occupied the premises during any portion of the quarter for which rent was claimed, also that the estate was insolvent, held, that the prayer of the petition was properly denied; that he was not entitled to a preference, but simply to come in and share with the other creditors.
    (Argued March 2, 1886;
    decided March 16, 1886.)
    Appeal from order of the General Term of tlie Supreme court, in the first judicial department, made January 13, 1886, which reversed an order of Special Term, directing Eustace Conway as committee of the estate of Oscar Strasburger, a lunatic, to pay rent accruing under a lease to the lunatic of certain premises in the city of ISTew York. The order appealed from also denied the prayer of the petitioners, the lessors. (Reported below, 38 Hun, 597.)
    On September 17, 1881, said Strasburger was adjudged a lunatic, and a committee of his estate appointed; he was, prior to that, engaged in business in ISTew York city, occupying for that purpose premises leased to him by the petitioners for a term of years, for an annual rent payable in quarterly installments. The committee so appointed continued the business; said committee resigned and Mr. Conway was appointed; he did not continue the business and never occupied or used the premises. The petition prayed that he be required to pay the quarter’s rent falling due under the lease May 1, 1885. It appeared that the estate was utterly insolvent.

      John L. Gadwdlader for appellants.
    Where an assignee, a receiver or a committee takes deliberate possession of demised premises and uses them for the estate, he becomes in equity an assignee of the lease. (Taylor on Landl. & Ten., §§ 437-444; Martin v. Black, 9 Paige, 644; Young v. Peyser, 3 Bosw. 308; Astor v. Lent, 6 id. 612; Morton v. Pinkney, 8 id. 135, 139-40; Jones v. Hausmann, 10 id. 168; In re Catherine Wolfe, Sup. Ct., Sp. Term, Sept. 17, 1878, MSS., per Daniels, J.; People v. Nat. Trust Co., 82 N. Y. 283; Woodruff v. E. R. Co., 93 id. 609, 624; People v. Un. L. Ins. Co., 30 Hun, 142; In the Matter of Otis, 34 id. 42; Moore v. Higgins, 20 Weekly Dig. 123.) An assignee who has deliberately assumed a lease cannot rid himself of it by a notice or by expressing a wish to avoid further liability. (Taylor on Landl. & Ten. [5th ed.], §§ 444, 461; People v. Nat. Trust Co., 82 N. Y. 283.) The term “ assignee ” is very comprehensive, and extends to all persons taking the estate in the lease, either by act of the party or by operation of ™ law. (2 Platt on Leases, 419; Hannon v. Stevenson, 2 B. & Aid. 303; People v. Nat. Trust Co., 82 N. Y. 283; Woodruff v. Erie R. Co., 93 id. 624; People v. Nat. Trust Co., 82 id. 283.) If the estate once becomes vested, nothing short of a deed of conveyance or an assignment of the lease will discharge the assignee from liability. (2 Platt on Leases, 449; Taylor on Landl. & Ten., § 452; Lewis v. Burr, 8 Bosw. 148; Tate v. McCormick, 23 Hun, 218.) The committee is in possession by his sub-tenants. The possession of the sub-tenant is his possession. (Taylor on Landl. & Ten. [7th ed.], §§ 444, 461; Carter v. Hanmett, 18 Barb. 608; Moore v. Higgins, 20 Weekly Dig. 123.) It is not material from what source the fund in the committee’s hands has come ; he must discharge this liability from any funds that he may have in his hands. (Moore v. Higgins, 20 Weekly Dig. 123; Woodruff v. Erie R. Co., 93 N. Y. 623.) The petitioners are entitled to recover their rent by a summary order, such as was made at Special Term. (People v. Nat. Trust Co., 82 N. Y. 283; People v. Un. L. Ins. Co., 30 Hun, 142; Woodruff v.
      Erie R. Co., 93 N. Y. 619-20; In the Matter of Otis, 34 Hun, 542.)

      Francis Lynde Stetson for respondent.
    By accepting appointment as temporary committee, Mr. Conway did not become chargeable with the payment of rent to the petitioners, except in due course of administration of the lunatic’s estate which was insolvent. (People v. Nat. Trust Co., 82 N. Y. 283-287; Martin v. Black, 9 Paige, 641; 34 Hun, 542; Howard v. Heinerschitt, 16 id. 177.) A receiver, and consequently a committee, has a right to waive a term under a lease. (Martin v. Black, 9 Paige, 641; Woodruff v. Erie R. Co., 93 N. Y. 609-624.) The committee cannot become by operation of law or equity the assignee of a lease which had been made fo the lunatic. (Copeland v. Stephens, 1 Barn. & Aid. 594; Ferrin v. Myrick, 41 N. Y. 319; Drury v. Fitch, Hutton, 16.)
   Andrews, J.

The jurisdiction confided to the court over the persons and estates of lunatics, carries with it as a necessary incident, after inquisition found and the appointment of a committee, the power to direct the application of the estate of the lunatic to the payment of demands existing against it, and this relief may be granted on the petition of the claimant. (Exrs. of Brasher v. Van Cortland, 2 Johns Ch. 244; In re Heller, 3 Paige, 199, 200; People v. Nat. Trust Co., 82 N. Y. 283.) This jurisdiction in its origin was equitable, and is exercised upon equitable principles, and in accordance with the maxim that “ equality is equity.” This equitable rule has been embodied in the statute in respect to the distribution of money arising from the sale of the land of the lunatic, for the payment of debts, which declares that the proceeds shall be distributed ratably among all the creditors. (2 Rev. Stat. 54, § 15; Code of Civ. Pro., § 2364.) There is no express statutory provision regulating the mode of distribution of the personal assets, but it cannot be doubted that when the assets are insufficient to pay all the debts in full, the same rule of equality should be applied. In view of this principle the relief sought by the petitioner was properly denied.

The lunacy of Strasburger did not discharge or affect his covenants in the lease. The rent accruing after the appointment of the committee became a charge upon his estate, and was a demand which the petitioners could present and have adjusted in the ordinary course of administration. A claim for rent under a lease, whether accruing before or after the appointment of a committee, has no intrinsic preference over other debts of the lunatic. The lessor has his remedy by reentry in case of default in payment of the rent, or he may forego his right to terminate the term, and come in as a general creditor of the estate for the rent unpaid. There may be equitable reasons upon which the court in a particular case ought to give a preference for rent accruing after the appointment of the committee. If the leased premises are occupied by the committee, and such occupation is to the advantage of the estate, as where it was necessary in order to carry on or close up the business of the lunatic, the rent accruing during such occupation would justly be regarded as a reasonable expense incurred by the committee to be paid before the claims of general creditors. But we perceive no equitable principle upon which a demand for rent takes preference of other debts, in the absence of a special equity growing out of the circumstances of a particular case. It is claimed that the occupation of the premises for a time by the first committee was an acceptance of the lease by him, and that he thereby became liable as assignee of the term, and that the present committee succeeded to his situation and responsibility. If this claim was well founded, it would be material only as bearing upon the general equity of the committee, to be protected against liability, by charging the fund in his hands with the rent before paying the general creditors. But we are referred to no authority which sustains the proposition that the committee of a lunatic becomes chargeable as assignee of a lease held by the lunatic, by reason of his occupation of the premises after his appointment. It is well settled that a receiver, or an assignee in bankruptcy, or an assignee for the benefit of creditors, if he elects to accept a lease belonging to the debtor, or assignor, becomes by such election assignee of the lease and personally liable on the covenant to pay rent, of which liability he can only discharge himself by an assignment or surrender. (Copeland v. Stephens, 1 Barn. & Aid. 594; Thomas v. Pemberton, 7 Taunt. 206; Clark v. Hume, 1 Ryan & M. 207; Carter v. Warne, 4 Carr. & P. 191; Martin v. Black, 9 Paige, 641; Journeay v. Brackley, 1 Hilt. 447; Lewis v. Burr, 8 Bosw. 140.) This doctrine proceeds on the ground that on the election being made, the receiver or assignee becomes vested with the title to the leasehold interest, and a privity of estate is thereby created between the lessor and the receiver or assignee, by virtue of which the latter becomes liable on the covenants running with the land. But the committee of a lunatic takes no title to the real or personal estate of a lunatic. He is a mere bailiff to take charge of the property of the lunatic, and to administer it subject to the direction of the court. His possession is the possession of the court. (In re Heller, supra; Noe v. Gibson, 7 Paige, 513; Petrie v. Shoemaker, 24 Wend. 84, 85; Lane v. Schermerhorn, 1 Hill, 97.) It follows as a necessary consequence from the nature of his office and the fact that the title to the lunatic’s property is not divested by the appointment of the committee, that the occupation by the latter under a lease to the lunatic, is in the character of servant, agent or bailiff, and creates no privity of estate between him and the lessor. The facts in this case did not call upon the court to intervene for the protection of the committee, nor do they furnish any ground for equitable preference of the claim of the petitioner. The lunatic’s estate is largely insolvent; the committee has not, in fact, occupied the premises during any portion of the quarter for which rent is claimed ; the petitioner was notified by the present committee on his appointment, that he would not occupy the premises; the continuance of the lease was a disadvantage to the estate, and the remedy of the petitioner to oust the sub-tenant and to regain possession of the premises, was complete. The lessor has a claim against the lunatic’s estate, upon which he can come in with the other creditors. It would be inequitable, under the circumstances, to '■give him a preference.

The order of the General Term should be affirmed.

All concur.

Order affirmed.


author: Rugeb, Ch. J.

text:
    George C. Preston, Respondent, v. Samuel R. Hawley, Appellant.
    ip0 maintain an action for use and occupation o'f real property, it is not only necessary for plaintiff to prove title, but that the conventional relation of landlord and tenant existed between the parties.
    While it is not essential to show that this relation was created by written instrument or express agreement, there must be proof of some circumstances authorizing an inference that the parties intended to assume that relationship toward each other.
    A vendor of real estate who remains in possession of part of the property after the conveyance does not thereby become tenant to the purchaser, and is not liable for use and occupation.

      It seems the remedy of the purchaser, if the vendor refuses to surrender the possession, is by action of ejectment alone, in which he may recover damages by way of mesne profits for the unlawful withholding of possession.
    In an action for use and occupation it appeared that plaintiff purchased of defendant the premises in question, consisting of a hat factory and machinery therein. After the conveyance defendant allowed certain stock used in the business, which was on the premises at the ti me of the sale, to remain there for .about two months after the conveyance. Plaintiff demanded rent, but this defendant refused to pay, offering to pay for storage ; this was about a month before he removed the stock. Held, that the evidence failed to show the existence of the relation of landlord and tenant; and that the action was not maintainable.
    (Argued March 3, 1886;
    decided March 23, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made May 30, 1884, which affirmed a judgment in favor of plaintiff.
    This action was for use and occupation.
    The material facts are stated in the opinion.

      George Wilcox for appellant.
    This action being for use and occupation cannot be maintained unless the relation of landlord and tenant existed between the plaintiff and defendant. (Thompson v. Power, 60 Barb. 463, 477; Sylvester v. Rawlston, 31 id. 286; Hall v. Southmayd, 15 id. 36.) This relation cannot exist except by mutual agreement. (Benjamin v. Benjamin, 5 N. Y. 388; Woodf. Landl. & Ten. [11th ed.] 510; Tayl. Landl. & Ten. [7th ed.] 636; Dart on Vend. & Purch. 816; Boston v. Binney, 11 Pick. 1-9; Greenup v. Vernon, 16 Ill. 26; Tew v. Jones, 13 M. & W. 12.) A vendee who enters into possession after contract to purchase, which contract fails for any reason whatever—even his own fault — is not liable an action for use and occupation. (Smith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 id. 489; Thompson v. Bower, 60 Barb. 463; Sylvester v. Rawlston, 30 id. 286; Hall v. Southmayd, 15 id. 36.)

      Charles M. Preston for respondent.
    The relation of landlord and tenant existed between the parties, and the action for use and occupation was well brought. (McAdam on Landl. & Ten., § 30; Pierce v. Pierce, 25 Barb. 243; Thomas v. Nelson, 69 N. Y. 118; Reeder v. Sayer, 70 id. 180; Abb. Tr. Ev. 351; Despard v. Walbridge, 15 N. Y. 374; Coit v. Planer, 7 Rob. 413.) The defendant by remaining on the premises after the notice that plaintiff regarded him as his tenant, and by his' silence, ratified the understanding of plaintiff that defendant was there as tenant. (Despard v. Walbridge, 15 N. Y. 374; Mark v. Burt, 5 Hun, 28.) It is not necessary that defendant should have actually used the premises and property. If he had the right and power to do so plaintiff may recover. (34 N. Y. 284.) The action was properly brought and recovery had against defendant individually. (People v. Univ. L. Ins.

      Co., 30 Hun, 142; Ferrin v. Meyrick, 41 N. Y. 315; Austin v. Munroe, 47 id. 360; Seaman v. Whitehead, 78 id. 306; New v. Nichol, 12 Hun, 431; Rogers v. Wheeler, 43 N. Y. 598.)
   Rugeb, Ch. J.

The plaintiff sought to recover in this action, for the use and occupation by the defendant, of certain real property belonging to the plaintiff. It is not disputed by the respondent, but that it was not only necessary, to prove the title of the premises in the plaintiff, and the occupancy thereof by the defendant, but that the conventional relation of landlord and tenant existed between the parties, in order to maintain the action. (Thompson v. Bower, 60 Barb. 463, 476; Sylvester v. Ralston, 31 id. 286; Hall v. Southmayd, 15 id. 32, 36.) This is the uniform doctrine of the cases, and elementary writers, and has been indisputable law since the enactment of the statute authorizing this form of action. It is not, however, essential that the relation should be created by written instrument ¿r express agreement, but there must be proof of some circumstances authorizing an inference that the parties intended to assume such relations toward each other, to support the action. (Benjamin v. Benjamin, 5 N. Y. 383, 388; authorities supra.)

Ho direct evidence was given by the plaintiff tending to prove such relations, but they were attempted to be shown by circumstances, which, it was claimed, would justify the inference that the occupation in question was enjoyed by the defendant under the expectation on his part, of paying rent therefor.

We are of the opinion that there is no proof in the case from which the court were authorized to draw such an inference. The evidence was very brief and was substantially to the effect, that prior to J une 7,1883, the defendant took title to the premises in question, consisting of a large hat factory and machinery necessary to carry on the business of making hats contained therein, as the general assignee for the benefit of creditors of one Babcock, and on that day sold at public auctión said premises to the plaintiff, and on June twenty-first thereafter conveyed them by deed to him. There was no proof of any use of the premises or machinery by the defendant, for the purposes of manufacturing, or of any occupation by him, except such as might be implied from his omission to remove certain stock, belonging to him as assignee, and intended to be used in the business of making hats, which was on the premises at the time of the sale. There was no evidence as to the quantity of this stock, or of the extent of the room necessary to afford it storage, but it was proved to have remained on the premises for two months after the date of the deed.

In answer to the question whether there was any conversation between you and defendant in reference to the use of the premises,” the plaintiff testified, “ nothing about time, we talked about it; I took my deed from him, and he was in possession and remained so. This deed says nothing about his staying in possession.” Subsequently, in answer to the questions, Did you demand rent; what conversation did you have?” plaintiff replied : “ I wrote him to send me a check ; he did not reply ; I drew upon him and he did not honor the draft; and then when I saw him he told me that he thought the rent was excessive; that he should pay for storage but not for the regular full rent of the factory.” He continued to occupy after that perhaps in the neighborhood of a month.” The plaintiff also testified that the rental value of the property was $1,050 a month.

Upon this evidence the defendant requested the court to direct the jury to find a verdict for him, which was refused by the court, and the refusal was excepted to by the defendant. The court thereupon dismissed the jury, holding that there was no question of fact for them, and after considering the ease, found that the defendant was liable for the rent claimed. The defendant duly excepted to the conclusions of fact as well as law made by the court, and thereby presents the question whether upon the undisputed evidence he was liable for the use and occupation of the premises.

We think the exceptions to these rulings and findings were well taken. The evidence shows affirmatively that the vendor did not remain in possession of the premises by virtue of any express agreement to rent them, and none can be inferred from the fact that some of his property remained therein after the sale. The vendee under his deed was entitled to the immediate possession of the property, and could recover such possession if it was denied him, by ejectment alone. In such action the vendor would be liable to respond in damages by way of mesne profits, for his unlawful conduct in refusing possession, but would not be liable in an action for use and occupation. It is said in Woodfall’s Landlord and Tenant (10th ed., 714), that “a vendor who remains in possession of part of the property after the execution of the conveyance does not thereby become tenant to the purchaser nor liable to him in an action for .use and occupation,’’ citing Tew v. Jones (13 M. & W. 12), and this is uniformly the language of the text-writers. (See Taylor’s Landl. & Ten. [5th ed.], § 636; Dart on Vend. & Purch. 816; Boston v. Binney, 11 Pick. 1; Greenup v. Vernon, 16 Ill. 26.)

It follows from this principle that the subsequent possession of the vendor, would continue to be of the same character as that which attended its inception, unless changed by some contract entered into during its continuance.

It is claimed that the conversation occurring between the plaintiff and defendant after the sale had this effect. We do not assent to the construction put upon the conduct and conversations of the parties by the court below. It is quite essential to implied, as well as express contracts, that ¡¡there should be some act performed, or language used, by,both_ parties, from which the conclusion can be fairly drawn, that their minds met, upon the conditions of the agreement. Most certainly if one party expressly declines to assent to the proposed terms, no inference can be indulged that he has assented.

The evidence shows a steady refusal on the part of the defendant to become obligated to pay rent for the premises in question. He expressed his willingness to pay something for storage, but denied his liability for the use and occupation of the premises as a factory. There was manifest justice in his position, for it does not appear that he had any such use of the premises as ought justly to subject him to the payment of rent therefor. If the plaintiff was unwilling to allow the defendant’s property to remaiil stored upon the premises, he should have demanded its removal, or "insisted upon some definite agreement as to the ratel of compensation to be paid. He cannot change the relation existing between himself as a purchaser of real property, and the vendor unlawfully remaining in possession at his option, and impose upon such vendor the character of a tenant, by stating to him that he should thereafter require him to pay rent. It requires the assent of both parties, manifested in some intelligible manner, to make such .a contract, and it is not like the case of a tenant continuing in possession after the expiration of his term under an announcement by the landlord of a change in the lease. There the assent of the tenant is implied, from his voluntary continuance of the term after a change in the conditions are stated, and the further occupation by the tenant is rightfully presumed to be under the lease as thus modified by the landlord.

In this case there were never any contract relations between the parties except those stated in the deed, and no evidence showing authority in the plaintiff to impose terms upon his vendor, or of assent by him to hold as tenant under his vendee.

The judgment of the General and Special Terms should be reversed and a new trial ordered, with costs to abide the event.

A.11 concur.

Judgment reversed.


text:
    Henry S. Carpenter et al., Respondents, v. Elmore A. Kent et al., Appellants.
    Where, after a settlement and adjustment of an account between the parties a mistake as to one item thereof is discovered, and an action is brought to correct the mistake, this does not give to the defendant a right to have the whole account opened; the mistake may be corrected and the right of the parties readjusted in regard thereto, but in other respects defendant is bound by the account, actually settled, unless he can show some mistake or fraud in the settlement in respect to other items.
    (Argued March 4, 1886;
    decided March 23, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, in favor of plaintiffs, entered upon an order made June 16, 1884, which overruled defendants’ exceptions and directed judgment on a verdict. (Reported below, 18 J. & S. 371.)
    This action was brought to recover back money alleged to have been paid and allowed by mistake on an adjustment of accounts between the parties.
    The material facts are stated in the opinion.

      Robert L. Wensley for appellants.
    The final payment made by the plaintiffs was not made upon an- account stated but was an accord and satisfaction. (Lockwood v. Thorne, 18 N. Y. 288; Stenton v. Jerome, 54 id. 484; Pierce v. Pierce, 25 Barb. 252; Neary v. Bostwick, 2 Hilt. 519.) Mutual compromises having been made upon the settlement of the account it cannot be opened; nor can any evidence be given to impeach it. (Lockwood v. Thorne, 18 N. Y. 492; Palmerton v. Huxford, 4 Den. 166; Farmers' Bk. v. Blair, 44 N. Y. 652.)

      A. B. Tappen for respondents.
    Accounts once settled between parties after full examination will not be opened by the court unless fraud be alleged and satisfactorily proven; but either party has a remedy for any manifest error or mistake which was not the subject of dispute or of settlement. (Wait’s Act. & Def. 196, 198; McIntyre v. Warren, 3 Abb. Ct. of App. Dec. 99; Wilde v. Jenkins, 4 Paige, 481.) An action will he to correct the mistake and collect the money, and if defendants in charging a draft to plaintiffs had undercharged the amount, they would have a like remedy to collect the difference. (6 Wait’s Act. & Def. 427; McDougal v. Cooper, 31 N. Y. 498; Stenton v. Jerome, 54 id. 480.) A mutual mistake of fact will authorize the court to correct an account in that respect. (Calkins v. Griswold, 11 Hun, 208.) The account cannot be opened as to items disputed and adjusted, tinless among other things the defendants refund the sum which they induced the plaintiffs to pay in settlement of the dispute. (McMichael v. Kilmer, 76 N. Y. 16.)
   Earl, J.

In the months of November and December, 1882, the defendants were commission merchants in the city of New York, and received from the plaintiffs, who were grain dealers in Chicago, consignments of grain for sale on their account, and honored their drafts against such consignments; and in those months these transactions amounted to upward of $60,000. In the last month, the defendants rendered their account to the plaintiffs, showing a balance due against them of $1,986.62. There was included in this account, as rendered, a charge against the plaintiffs for $1,550, as the amount of a draft paid, which charge is conceded to have been erroneous, but the error was unknown to both parties. The plaintiffs disputed the account in other respects, and, after considerable correspondence between the parties, offered to pay one-half of the balance claimed by the defendants, if they would accept it in full settlement. The defendants accepted the offer, and agreed to the settlement, and the plaintiffs paid $993.31, one-half of the balance, and received from the defendants a receipt therefor, which was stated to be in full for all demands to date. Thereafter the plaintiffs discovered the erroneous charge of $1,550, and demanded payment thereof from the defendants, who admitted the error, and offered to pay the plaintiffs the difference between $1,550, and $993.31, the amount relinquished by them in the settlement, with interest, and to go over the items and make a new settlement of the account. The plaintiffs refused the offer and brought this action to recover the $1,550 and interest.

There is no claim on the part of the defendants that there was any other mistake, upon the settlement between the parties, in reference to any other items of the account. There was a dispute as to two or three items, and those disputes were settled to the satisfaction of the parties. There never was any dispute as to the $1,550. That amount the defendants owed to the plaintiffs on account of the grain which they had sold for them. We do not think that the defendants had the right to have the whole account opened, but that they were bound by the account actually settled, unless they could show some mistake or fraud in the settlement. (Bruen v. Hone, 2 Barb. 586.) Where an account has thus been adjusted by the parties, if any mistake is subsequently discovered, the whole account need not be opened and readjusted, but the mistake can be corrected and the rights of the parties readjusted as to such mistake. Here, leaving everything to stand just as the parties actually adjusted and settled the items of the account, there still remains due to the plaintiffs the sum which they claim in this action, and that sum they were entitled to recover without opening the account.

One of the defendants testified upon the trial that he did not know of the mistake at the time of the compromise; and he was then asked this question: “ Had you known of the mistake would you have made the agreement you did make ? ” This question was objected to and excluded, and the defendants complain of this exclusion as error. As the mistaken item had nothing whatever to do with the settlement, it is not perceived how this question could have been truthfully answered in the negative, nor how any answer given could have been material. It was not an offer to show that the' defendants were in any way influenced or induced by the mistake to make the settlement, and we think the question was incompetent.

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

All concur.

Judgment affirmed.


text:
    The National City Bank, Appellant, v. The New York Gold Exchange Bank, Respondent.
    Defendant had a department for the general clearance of contracts between its customers for the purchase and sale of gold, known as the “ ClearingHouse.” Clearances were made each day by means of statements furnished by the dealers to defendant, of purchases and sales made by them; defendant acting simply as mutual agent for the parties. On a day when many members of the clearing-house had failed to perform their contracts, and when there was great confusion in regard to them, 0. & Co., plaintiff’s assignor, presented two separate statements, one in the morning, and one in the afternoon. In the first was an item of a transaction between 0. .& Co., and a firm which failed on the morning of that day. It was not usual to present more than one statement during the same day. When O. & Co. called upon defendant for the balances shown to be due that firm by the statements, they were advised by its president, that owing to the confusion in business, he could not tell how the statements stood, and that the bank would only pay approximate balances, reserving a margin to secure defendant against failures. Defendant accordingly paid $30,-000 on the second statement, leaving $10,000 unpaid thereon, and paid nothing on the first. In an action to recover the balances shown by the statements, held, that to entitle plaintiff to recover, it was necessary for it to show a clearance, by defendant, of the statements, and that a balance had been struck in favor of O. & Co., which made out a demand in the nature of an account stated ; that the statements were to be taken and considered together as but one statement; but that if considered separately, there was no such clearance of either as bound defendant, and that plaintiff was not entitled to recover.
    The only portion of the statement which was questioned was the item of the transaction with the insolvent firm; plaintiff claimed defendant was liable because of an omission on its part to notify 0. & Co. of the failure ; it appeared that O. & Co. had knowledge of the fact. Held, that, having such knowledge, the fact that they were not notified thereof by defendant was immaterial.
    (Argued February 11, 1886;
    decided March 16, 1886.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made Hay 9,1884, which affirmed, so far as appealed from by defendant, a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to recover balances alleged to be due upon two statements of gold transactions, the nature of which, as Avell as the material facts are set forth in the opinion.

      William H. Arnoux for appellant.
    The effect of an account stated is the same as a promissory note. There is an existing legal obligation to pay the amount so ascertained to be due. (Lockwood v. Thorne, 11 N. Y. 170, 173; Willes v. Jernegan, 2 Atk. 257; Phillips v. Belden, 2 Edw. Ch. 1.) The plaintiff is entitled to recover on the first statement as an account. (Oddie v. Nat. City Bk. N. Y., 45 N. Y. 735; Shapley v. Abbott, 42 id. 447; Kellogg v. Ames, 41 id. 264; Plumb v. Cattaraugus Ins. Co., 18 id. 392; Ames v. N. Y. W. Ins. Co., 14 id. 253; Rowley v. Empire Ins. Co., 3 Keyes, 360; Fowler v. N. Y. Gold Ex. Bk., 67 N. Y. 138, 143.)

      Luke A. Lockwood for respondent.
    The relation subsisting between Oddie & Co. and the defendant was that of principal and agent. (Fowler v. Gold Ex. Bk., 67 N. Y. 138.) The relation between a bank and its depositors is that of debtor and creditor. (Matter of Franklin Bk., 1 Paige, 249; Cragie v. Hadley, 99 N. Y. 131, 133; Met. Nat. Bk. v. Lloyd, 90 id. 530, 536; Comm. Bk. v. Hughes, 17 Wend. 94; Marsh v. Oneida Bk., 34 Barb. 298.) No action lies against the defendant as upon “ an account stated.” (Volkening v. DeGraaf, 81 N. Y. 268; Stenton v. Jerome, 54 id. 480, 484.) The relation of principal and agent existing between defendant and Oddie & Co., the only action which could be maintained by the plaintiff upon the facts proved is an action for an accounting. (Code of Civ. Pro., § 541.) There could be no action for negligence, because negligence is such a neglect of duty as causes damage. (Nicholson v. E. R. Co., 41 N. Y. 525; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 293; Story on Agency, 222, 236; Paley on Agency, 8, note 3; id. 39; Bridge v. Mason, 45 Barb. 37; Blot v. Boiceau, 3 N. Y. 78; Allen v. Suydam, 20 Wend. 321; Buckingham, v. Payne, 36 Barb. 81; Fowler v. Gold Ex. Bk., 6 Hun, 191.)
   Miller, J.

The defendant, being a banking corporation, had a department for the general clearance of contracts for the purchase and sale of gold, known as the clearing-house.” These clearances were made among those who dealt with the defendant, and were members of the clearing-house, each day by means of statements of purchases and sales of gold made by them being delivered to the defendant. The defendant in these transactions acted as the common agent of the dealers in gold in the settlement of the contracts made between them. It received the gold sold from the seller, as his agent, and delivered it to the. buyer for whom it was received, in the same capacity, and received from him the amount of the price thereof in currency and paid the same over to the party entitled thereto. This was accomplished by means of the statements delivered to defendant by the members dealing with it, the defendant from these statements determining the balance due it or the members on each day’s transactions, and paying over to or receiving from the members such balance. The transaction in which the defendant was engaged was the mere exchange of commodities between those who were dealing with it, the defendant acting as mutual agent. Oddie & Co., plaintiff's assignors, were the principals, and the defendant was their agent to ascertain and determine the balance existing between them and the parties with whom they contracted, and upon said balance being ascertained and adjusted, defendant received it and transferred it to the party to whom it belonged. The defendant merely determined the balance due between contracting parties, and as their mutual agent delivered the gold or currency found due, upon receipt thereof, in settlement of their statements. (Fowler v. N. Y. Gold Exchange Bank, 67 N. Y. 138.)

To entitle the plaintiff to maintain this action it was necessary for it to establish that there had been a clearance of the statements under which a recovery was claimed, and that a balance had been struck in favor of Oddie & Co., which made out a demand in the nature of an account stated and thus created a liability against the defendant. It is claimed that Oddie & Co., having presented to defendant, on the 24th "of September, 1869, two separate and distinct statements, both of which were cleared, the plaintiff is entitled to recover a balance of $7,282.50, currency, alleged to be due Oddie & Co., on the first statement, and $10,000 gold, on the second statement.

The referee upon the trial held that there was no clearance by the defendant as to the first statement and that there was as to the second, and it appears from his opinion he decided that the non-clearance of the first statement was owing to the default of Belden & Co., one of the contractors mentioned in said statement, in not filing their statement with defendant, and as to the second it not being treated as a part of the first, was treated as an independent statement of other dealers, and not being open to the same objection as the first, was cleared, and the defendant thus became the holder of $40j000 gold belonging to Oddie & Co., for which they could draw at once, and that the defendant recognized this by paying $30,000 on account, which was indorsed on the statement, leaving a balance of $10,000 gold due Oddie & Co.

It would seem that the statements of Oddie & Co. were cleared with the exception of the item therein stated as that-of Belden & Co.., and that no controversy exists as to any other item of the statements. Belden & Co. failed on the morning of the day when these transactions occurred. We think the referee was right in holding that the first statement was not cleared, and erred in his conclusion that the second statement was cleared. The first statement related to transactions of the day before and early in the morning of the twenty-fourth, and the second statement was of transactions late in the day of the twenty-fourth. The two statements must be taken together as constituting the transactions of the clearing-house with Oddie & Co. on the twenty-fourth of September. It was not usual in the transaction of the business in the clearing-house to present two statements during the same day, and we are unable to see why the presentation of more than one should change the character of the transaction for the entire day. In fact Oddie & Co. presented on this day several corrected statements after the first two had been handed^ in, and it would seem as if all of these should be considered in connection as constituting a statement of the whole of their business with the defendant on the day named. It is very manifest that the failure of Belden & Co. was a sufficient ground for not clearing the first statement, if that statement can be regarded as separate and distinct from the other, and even if such was the case, as the failure of Belden & Co. would affect the entire account and thus render it difficult to determine how it stood, and what balance, if any, was coming to Oddie & Co., and whether any funds remained in the hands of the defendant which properly belonged to them, it is not apparent how the defendant could properly clear the statements of Oddie & Co. Great excitement and confusion prevailed in financial circles on the day named. Many of the members of the clearing-house had failed to perform their contracts for the purchase arid sale of gold, and the clearing-house was thus left without funds to make deliveries to those who had made contracts with the defaulting members. The testimony of Mr. Oddie, one of the firm, shows that upon the day in question he called at the bank for the balance claimed to be due his firm, and the president of the bank informed him that there was confusion in the bank’s business arid that he could not tell how the statement stood. The testimony of the president of the bank and one of its officers at the time shows that Oddie & Co. were informed on that day that there had been some failures, and that Belden & Co. was one of them, and was in default, and that the bank would only pay approximate balances, reserving a margin to secure the defendant for these failures.

Even if there was a conflict between these statements, the testimony of Oddie himself clearly establishes that it was impossible at the time to determine how the balances stood and to clear the statements. It is apparent that the defendant on that day could not ascertain how matters were, and, in the face of the fact that Belden & Co. had failed, equally impossible to tell whether it had sufficient funds belonging to Oddie & Co. so as to be able properly to clear their statement. The evidenee shows that the defendant did all that it could toward clearing the accounts by making deliveries of estimated or approximate balances to the members, and in this way it paid to Oddie & Co. $30,000 in gold on account. It also tends to establish the fact that they did the best they could under the pressure of the embarrassment then existing; that the amount paid to Oddie & Co. was paid to them rather as a matter of favor than otherwise, to relieve them so far as was practical and safe.

■There was no promise, either express or implied, to pay them $10,000 in gold in addition to the $30,000 they had received; on the contrary, the payment itself indicated that no balance could be struck. The fact of a payment in part being made, under the circumstances then existing, was virtually á declaration by the defendant that it was unable to clear the statement of Oddie & Co. The evidence shows that the statement made by Oddie & Co. was not a statement of an account with the defendant; that it was not accepted as such or considered to be correct. It was never sanctioned by the defendant in accordance with the rules and regulations of the clearinghouse. There was no account made or existing between Oddie & Co. and the defendant, and it is very plain, therefore, that no action would lie against the defendant upon an account stated.

Some stress is laid by the appellant’s counsel upon the admission made on the trial that the Oddie & Co. statements were cleared by the defendant with the exception of Belden & Co., and that no controversy was made as to any other item on the statements, and it is claimed that as Belden & Co. only appeared on the first statement it was admitted that the second statement was cleared. As the two statements, as we have seen, are to be taken together as constituting the transaction of the entire day, we do not understand that this admission would bear any such interpretation. As already indicated the failure of Belden & Co. affected both statements and the whole transaction, and there is no ground for the contention that it is admitted the defendant cleared the entire statement.

The appellant’s counsel seeks also to sustain the right of the plaintiff to recover, for the reason that no notice was given to Oddie & Co. of the failure of Belden & Co. so that they might protect themselves. This position is based upon the ground that the defendant 'was negligent in the performance of its duty. Taking all the evidence in connection there would seem to be sufficient to establish the fact that Oddie & Co. had notice of the failure of Belden & Co., and the referee erred in refusing to find as requested that the failure of Belden & Co. was well known to Oddie & Co. on the day named. Oddie himself swears, upon being asked whether he had heard of Belden & Co.’s failure before his conversation with the president of the bank, that he had heard rumors of it but could not get at the facts. The testimony of the two Benedicts is direct and positive as to Oddie being informed of the failure at the time, and his clerk, Davis, swears that he talked with Oddie on the subject that day after three o’clock. Oddie and his clerks were attending all that day at the Gold Exchange during the excitement, and Belden’s name was posted there as having failed and his gold sold out to make up the difference before 12:30 o’clock of that day. A well-known fact of the character of the failure of Belden & Co. could hardly have escaped the attention of Oddie & Co., who were engaged and deeply interested in the transactions of that day, and if Oddie & Co. had notice of such failure, otherwise, the fact that the defendant did not give such notice to them is of no importance. In view of all the evidence the conclusion is irresistible that Oddie & Co. must have known of Belden & Co.’s failure early on the day of September twenty-fourth. If they did know it, then they lost nothing by not being notified by the defendant that such was the fact.

It may be remarked that even if Oddie & Co. were not notified of this failure, it is not apparent how they sustained any damage in consequence thereof. The claim that the plaintiff was entitled to recover of the defendant any sum whatever, even if the statement was not cleared, is, we think, without merit. As the statements must be regarded as one transaction for which a clearance was asked, there is no valid ground upon which the plaintiff could recover on account of a single item contained in the same.

Ho other point was presented which demands special attention.

The order of the General Term should be affirmed and judgment absolute ordered against the plaintiff on the stipulation, with costs.

All concur.

Order affirmed and judgment accordingly.


text:
    Uriah Scholl, Appellant, v. The Albany and Rensselaer Iron and Steel Company, Respondent.
    A consignee, who is owner of the consigned cargo, is liable to the owner or master of the vessel for damages in the nature of demurrage, for unreasonable delay in discharging the cargo after arrival, although the bill of lading contains no stipulation as to demurrage, and prescribes no time within which the cargo shall be discharged.
    By a bill of lading of a cargo of coal, the carrier was to discharge the cargo at the port of destination. On arrival he reported to the defendant, the consignee and owner of the coal, and requested to be discharged, offering to do the shoveling of the coal if defendant would provide for taking it áway; this it declined to do, insisting that plaintiff should take his turn at the wharf, and he was detained some seven days over the customary time for discharging such cargo. In an action to recover demurrage, > ■ held, that there was in effect an offer to perform on the part of plaintiff, and that it was a question of fact to be determined upon all the circumstances whether there was unreasonable delay on the part of defendant in discharging.

      Cross v. Beard (26 N. Y. 85), distinguished.
    (Argued March 4, 1886;
    decided March 23, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made March 15, 1883, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.

      This action was brought to recover damages in the nature of demurrage.
    Plaintiff was the owner of a canal boat, the “ Irwin Scholl,” upon which was shipped a cargo of coal, to be transported to Hudson, H. Y., of which cargo defendant was the' owner and consignee. By the bill of lading, plaintiff was to carry the coal and discharge it at the port of destination. On arrival, plaintiff reported to defendant and requested to be discharged, offering to do the shoveling of the coal if defendant would provide for taking it away. ■ Three boats with cargoes from the same shipper had arrived ahead of plaintiff, and he was told he must wait his turn and be discharged at the same dock.
    Plaintiff’s boat was detained eleven days; three and one-half days was the customary time for discharging such a cargo. Defendant had another wharf and derrick.

      J. A. Hyland for appellant.
    The consignee of a cargo, whether the cargo is to be discharged by the carrier or the consignee, is in duty bound, on notice of the arrival and readiness of the vessel to discharge her cargo, to provide a proper berth, customary facilities and room for unloading the cargo, and a dock such as the business ordinarily requires. If any delay to the vessel arises from the negligence of the consignee to furnish such berth, place or room for unloading the cargo, then the consignee is legally bound to pay for the use of said vessel while so detained, whether so provided in the bill of lading or not, (Paquette v. A Cargo of Lumber, 23 Fed. Rep. 301; Fulton v. Blake, 5 Biss. 371; 12 Am. L. R. 779.) In the absence of express agreement a contract is implied that the owner and consignee of goods will provide for discharging them in a reasonable time. (Cross v. Beard, 26 N. Y. 85, 91, 92.) The failing to designate a place at which the plaintiff could discharge his vessel, and holding his vessel there for defendant’s own convenience, is sufficient to make defendant responsible for the use of the vessel after the customary and reasonable time to discharge had expired. (Crawford v. Miller, 1 Fed. Rep. 638; Philadelphia & R. R. R. Co. v.
      Northam, 2 Ben. 1, 4; Paquette v. A Cargo of Lumber, 23 Fed. Rep. 301.)

      Wm. G. Holbrook for respondent.
    If a hill of lading contains no provision for the payment of demurrage by the consignee, he is not liable therefor, even upon his acceptance of the cargo. (Gage v. Morse, 12 Allen [Mass.], 410; Sprague v. West, 1 Abb. Adm. R. 548; Henly v. Brooklyn Ice Co., 14 Blatchf. 522; Crawford v. Jessup & Moore Paper Co., 24 Fed. Rep. 303; Fisher v. Abeel, 44 How. Pr. 432; Davidson v. Four Hundred Tons Iron Ore, 18 Fed. Rep. 94.) Plaintiff should have at least made an unconditional demand for a dock from where lie could have discharged himself. In accepting defendant’s offer he elected to be discharged according to the usual course in the customary way, and at the dock where such cargoes were usually discharged. (Groatstadt v. Whitthoff, 15 Fed. Rep. 265-68; Teilman v. Clark, 17 id. 268; McLaughlin v. Albany and Rensselaer Iron and Steel Co., 61 How. Pr. 439.)
   Andrews, J.

It seems to be the prevailing doctrine that a consignee, who at the same time is the owner of the cargo, is liable to the owner or master of the vessel for damages in the nature of demurrage, for an unreasonable delay in discharging the vessel after arrival, although the bill of lading contains no stipulation as to demurrage, and prescribes no time within which the cargo shall be discharged. (Henley v. Brooklyn Ice Co., 14 Blatchf. 522; Cross v. Beard, 26 N. Y. 85; Fulton v. Blake, 5 Biss. 371.) The coal which formed the cargo of the “ Seholl ” had been purchased by the defendant of the shipper, and was shipped by the vendor to the defendant at Hudson. Upon the facts proved, the defendant as between it and the carrier was both owner and consignee of the cargo. The General Term reversed the judgment of the trial court on the ground that the plaintiff, the master of the “ Seholl,” in view of the fact that by the bill of lading he was not only to carry the coal but also to discharge it at the port of destination, was bound, in order to put the defendant in default, to call upon the defendant on arrival to designate a place where it could be unloaded. We are of opinion that when the plaintiff on arrival reported to the defendant and requested to be discharged, and offered to do the shoveling of the coal if the defendant would provide for taking it away, which it declined to do, but insisted upon his taking his turn in unloading at the wharf, he did what was equivalent to an offer to perform the contract on liis part. It then became a question of fact to be determined upon all the circumstances, whether there was unreasonable delay on the part of the defendant in discharging the vessel. We do not perceive that the case of Cross v. Beard (supra) has any material application. In that case the court reversed the judgment of the trial court in favor of the plaintiff, for the exclusion of evidence offered by the defendant, tending to show that the delay in unloading at the defendant’s wharf was owing to a vis major, and was not the fault of the defendant. The fact that the defendant had declined upon the request of the plaintiff to allow him to unload at some other wharf, did not render the error harmless. The court held that it was for the jury to determine upon all the facts, whether the defendant had unreasonably delayed the discharge of the vessel. We think there was no error of law committed by the trial court, and we cannot, upon this appeal, review the findings of fact.

The judgment of the General Term should, therefore, be reversed, and the judgment of the trial court affirmed.

All concur.

Judgment accordingly.


author: Per Cwriam mem.

text:
    George F. Neubauer, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
    (Argued November 30, 1885;
    decided December 15, 1885.)
    This was an action to recover damages for injuries to plaintiff, a mechanic in defendant’s employ, alleged to have been caused by negligence on its part.
    The following is the mem. of opinion :
    “ Here the defendant as master discharged its whole duty to the plaintiff. It furnished suitable materials, implements and machinery, and skilled and competent fellow-workmen, and the plaintiff’s injuries were due to the carelessness of a co-servant, who at the time was acting as his foreman and boss. The principles laid down in Crispen v. Babbitt (81 H. Y. 516) control the decision of this case, and require the affirmance, of this judgment.” ^

      I. W. Lyon for appellant.

      Lewis E. Ca/rr for respondent.
   Per Cwriam mem.

for affirmance.

All concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Charles Taylor, Appellant.
    (Argued December 1, 1885;
    decided December 15, 1885.)

      M. Rumsey Miller for appellant.

      I. W. Near for respondent.
   Agree to affirm on opinion below.

Adi concur.

Judgment affirmed.


text:
    Albert DeFreese et al., Respondents, v. The City of Troy Appellant.
    (Argued December 1, 1885;
    decided December 15, 1885.)

      William J. Roche for appellant.

      E. Countryman for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


author: Andrews, J.,

text:
    Giles Van Horne, Appellant, v. William Campbell et al., Respondents.
    Where plaintiff in an action of ejectment claims title in fee to the whole premises, and recovers judgment in accordance with his claim, and where the title set up is in fact invalid, but it appeared on the trial that plaintiff has an independent and unimpeachable title to an undivided share of the premises, it is in the discretion of the General Term, either to modify the judgment or to reverse it and grant a new trial; and its determination in the exercise of this discretion is not reviewable here.
    (Submitted December 8, 1885;
    decided December 15, 1885.)

      This was a motion for reargument.
    The action was ejectment. The ease is reported in 100 N. Y. 287.
    The following is the mem. of opinion;
    “ There are insuperable difficulties in the way of granting this motion: (1) The plaintiff in his complaint claims title in fee to the whole premises. He recovered judgment in accordance with his claim. The General Term reversed the judgment and ordered a new trial on the ground that the devise over in the will of Jellis Fonda, upon which the plaintiff’s claim to the whole title rested, was void, and the judgment of the General Term has been affirmed by this court.
    It is now claimed that the General Term, instead of reversing the judgment absolutely, should have modified it by awarding a recovery for the undivided sixth part of the premises, as to which the plaintiff claims her title is unimpeachable. Assuming that the evidence conclusively established title in the plaintiff to this extent, the General Term was not bound to modify the judgment and award a recovery for the sixth part of the premises, It was in the discretion of the General Term either to modify the judgment, or to reverse it absolutely and leave the plaintiff on a new trial to assert his claim to an undivided share, and procure judgment therefor. This court cannot review the discretion of the General Term. (Godfrey v. Moser, 66 H." Y. 250.)
    (2) The facts upon which the right of the plaintiff is based to recover an undivided share of the premises, are not found by the trial judge. The action was tried before the court, without a jury, and the findings upon the question of title relate solely to the claim of title under the devise over in the will of Jellis Fonda. It is only by looking into the evidence that the right of the plaintiff to a share of the premises by another and independent title could have been ascertained. But an examination of the evidence would not have disclosed an indisputable title in plaintiff to the one-sixth part. The original share which descend ed to his mother, a daughter of Bouw Fonda, was one undivided fourth part, of which the plaintiff was entitled to an undivided one-eighth part only. His title to any greater interest depends upon the assumption that Mrs. Wempie’s share of her father’s estate, descended to her heirs, and that as to that share the defendants have not acquired a title by adverse possession. This assumption is not upon the evidence incontrovertible. The defendants are at least entitled to be heard upon that question.
    “ The motion should be denied.”

      Amasa J. Parker for motion.

      Horace H. Smith opposed.
   Andrews, J.,

reads for denial of motion.

All concur.

Motion denied.