text:
    JOHN RYALL, Administrator, &c. v. JAMES KENNEDY.

      Special Term,

      March, 1877.
    Before Freedman, J.
    EXECUTION AGAINST THE PERSON. ARREST. ACTION FOR DAMAGES FOR DEATH.
    1. When cannot issue.
    (a) In an action brought to recover damages for causing death by negligence under the acts of 1849, p. 338, 1847, p. 575, 1870, p. 215, the defendant cannot be arrested under an execution issued upon a judgment obtained therein,
    UNLESS
    1. An order of arrest has been obtained, under section 179, on the ground, either that defendant was not a resident of the State, or was about to remove therefrom.
    This is a motion to set aside an execution issued against the person of the defendant.
    The complaint in the action avers :
    1. That the defendant was the master of the steamship City of Brussels.

      2. That in March, 1871, the plaintiff’s intestate, John Ryall, took passage on the said steamship from Liverpool to New York, and the master for a good consideration, “undertook, promised, and agreed, to safely and securely convey and transport the intestate to the city of New York by the said steamship.”
    3. That the intestate then went on said vessel, and proceeded on his voyage to New York.
    4. That thereafter, and through the negligence and carelessness of the said defendant, the said master of said vessel, a tin drinking-cup used by emigrants, and which then contained poison, was allowed by snch defendant, master aforesaid,-to be placed and remain on or near the dining-table in the cabin of said vessel, where said John Ryall, Jr,., now deceased, took his meals, and through snch carelessness and negligence of said defendant, master as aforesaid of said vessel, the said John Ryall, Jr., being then about five years of age, entered such cabin, and took up said tin cup to drink, not knowing it contained poison, whereby he was instantly poisoned, and which resulted in his death ; all of which was without the fault or negligence of -said John Ryall, Jr., or his parent, in whose charge he was.
    The action was tried some years ago, and the complaint dismissed on the ground that the owners, and not the captain, were liable.
    The plaintiff appealed to the general term of this court, where the judgment of dismissal was reversed and a new trial ordered.
    The defendant appealed to the court of appeals, where the order was affirmed, and, pursuant to the stipulation to be given on such appeals, judgment absolute ordered for plaintiff with costs.
    The jjroceedings were thereupon remitted to this court, and the case sent to a sheriff’s jury to assess the damages, which they did at two thousand dollars.
    Judgment thereupon was entered in plaintiff’s favor, and execution issued against defendant’s property, which was returned nulla dona.

    The plaintiff then issued an execution against the person of the defendant, upon which the defendant is now held in custody.

      Salter & Cowing, attorneys, for plaintiff.

      Platt & Gerard, attorneys, and John M. Bowers, of counsel, for defendant.
   Freedman, J.

Section 288 of the Code provides that if the action be one in which the defendant might have been arrested as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued, but no such execution shall issue, unless an order of arrest has been served, as provided by the Code, or unless the complaint contains a statement of facts showing one or more of the causes of arrest re- • quired by section 179.

Under the decision in Wood v. Henry (40 N. Y. 124), the phrase in the statute “ statement of facts,” must be construed to mean, and be confined to, a statement of such facts as are constitutive parts of the cause of action.

Ho order of arrest having been obtained, the execution cannot be sustained on the ground of the existence of such an order.

In the view hereafter expressed an order of arrest could not have been granted in this case, except on affidavit showing that defendant was either a non-resident of the State or about to remove therefrom. But this question is not now before me, for no facts appear which call for a decision upon that point.

It therefore remains to be seen only whether the facts alleged in the complaint which constitute the cause of action show one of the causes of arrest specified by section 179.

It is contended that they do,, it being claimed that the complaint sets forth facts constituting a cause of action for an injury to the pereon.

It is true that the complaint sets forth a cause of action for negligence. It is therefore founded on tort. But the tort alleged is hot such as will authorize an arrest of the defendant.

Even if the term, “injury to person,” as used in section 179, can be deemed to include all kinds of personal injuries, be they occasioned by acts of omission or of commission, on the part of the defendant, it cannot be extended, by judicial construction, beyond injuries to the person of the plaintiff. An action for such an injury dies with the plaintiff.

The case at bar is not an action for an injury to the person of the plaintiff, but a statutory action founded upon the death of plaintiff’s intestate. It could not have been maintained at common law. It is purely the creature of a statute. The statutes under which such actions are now maintainable, are Laws of 1870, chap. 78, p. 215, amending Laws of 1847, chap. 450, p. 575, and Laws of 1849, chap. 256, p. 338. They provide for the recovery of pecuniary damages not exceeding five thousand dollars, but give no remedy whatever against the person of the defendant. They are in derogation of the common law, and hence their provisions cannot be extended and deemed to confer, by implication, a right of arrest so long as their language is not fairly susceptible of such an interpretation.

The execution against defendant’s person must be set aside, with ten dollars costs.


source: Caselaw Access Project

author: Speir, J.,

license: Public Domain

text:
    EMELIO SANCHEZ Y DOLTZ, Plaintiff and Respondent v. THE AMERICAN SUBMARINE COMPANY, Defendant and Appellant.
    Before Speir and Sanford, JJ.

      Decided, March 20, 1876.
    L Broker’s commission on sale of a vessel.
    The appeal was from a judgment entered on a verdict for the plaintiff. The only question involved was one of fact, viz., whether the plaintiff procured the sale, or another broker to whom defendant paid a commission.
   Speir, J.,

wrote for affirmance, holding that the question of fact was decided by the jury in accordance with the weight of the testimony.

Sanford, J., concurred.

Judgment affirmed with costs.


author: Sanford, J.,

text:
    JOHN M. BECK, Plaintiff and Respondent v. BRYANT LAWRENCE, Defendant and Appellant.
    I. Broker’s commissions on negotiating a lease in behalf of1 THE LESSOR.
    1. Opinion of witness as to relative ease.

      (a) The opinion of a witness as to whether it would be easier to lease a dock on the verge of a great city, than to lease a house and lot in the country, is inadmissible.

      Before Speir and Sanford, JJ.

      Decided, March 20, 1876.
    2. Custom: evidence that the putting by several brokers of then-signs on a particular piece of property, does not of itself entitle - them to commissions, unless they are instrumental in causing the property to be either leased or sold, is inadmissible.
    3. The evidence clearly established that plaintiff was employed by defendant, and that the lease resulted from Ms agency, as its procuring cause.
    The appeal was from a judgment entered on a verdict for the plaintiff. The action was brought for commission and brokerage on the rent reserved in a lease from defendant to the Morrisania Steamboat Company, which it was alleged was negotiated by plaintiff at the request of the defendant, and as his agent and broker.
   Sanford, J.,

wrote for affirmance, laying down the proposition contained in the head-note.

Speir, J., concurred.

Judgment affirmed with costs.


text:
    JOHN A. MACPHERSON, Survivor, &c., Plaintiff and Respondent v. JOHN H. SMALL, and others, Defendants and Appellants.
    ACCOUNT STATED.
    1. Question op law, when.
    On a given state of facts it becomes a question of law whether the transaction constitutes a stated account.

      (a) Application.

    1. The proof on behalf of plaintiff was to the effect that the account sued on was presented, that defendants claimed time to pay by installments on account of the heavy balance. A month after its rendition, defendants sent a check for one hundred and fifty dollars. One of the defendants, having been called as a witness, testified, “I made a promise to pay so much. I cannot affirm or deny that I may have done so. I did not myself know at any time the exact state of the account.” He further testified that he afterwards refused to pay the account, but did not say when or to whom.
    Before Sedgwick and Speir, JJ.
    Decided, June 5, 1876.
    Held,
    it being admitted that the account was received by the defendants, showing a balance due to the plaintiff, and no proof of any notice having been given that thfey rejected the account after examination, they iaMst be deemed in judgment of law to Time acquiesced.

    Appeal by defendants from a judgment entered against them, upon a verdict of a jury, and from-an order denying a motion made by them on the minutes, for a new trial.

      Sullivan, Kobbe & Fowler, attorneys, and Mr. Kobbe, of counsel, for respondent.

      D. Lord, Jr., attorney, and D. D. Lord, of counsel for appellants.
   Speir, J.,

wrote for affirmance, laying dow&’Sthe propositions in the head-note.

Sedgwick, J., concurred.

Judgment and order affirmed with costs.


text:
    HAMILTON, Plaintiff and Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Defendant and Appellant.
    Before Speir and Sanford, JJ.

      Decided, March 20, 1876.
    MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS.
    1. When not granted.

      (a) Not unless it plainly appears that some undecided point in the case exists, of importance in determining the respective rights of the parties or the duties they owe to the public.
    1. There were no questions of law involved in the case at bar which were not settled by the court of appeals, when the case was before them on the former appeal.
    This was a motion by defendant for leave to appeal to the court of appeals.

      George, the Count Johannes, for plaintiff.

      James P. Lowrey, attorney, and Clarkson L. Potter, of counsel, for defendant.
   Speir, J.,

wrote for denying the motion, laying down the above proposition.

Sanford, J., concurred.

Motion denied.

Note.—For principal case, see 40 N. Y. Supr. Ct. Rep. 376.


author: Per Curiam.

text:
    SAMUEL D. SEWARD, Plaintiff and Respondent, v. ADOLPH KESSLER, Defendant and Appellant.
    Before Speir and Sanford, JJ.

      Decided, March 20, 1876.
    The question involved in this case was whether the decision of a referee on a question of fact should be reversed.
   Per Curiam.

Judgment affirmed with costs.


author: Monell, Ch. J.,

text:
    JAMES WALTER BOWNE, Plaintiff and Respondent, v. JAMES O’BRIEN, Defendant and Appellant.
    Before Monell, Ch. J., and Curtis, J.

      Decided, April 3, 1870.
    STATUTE OF LIMITATIONS.
    1. Sheriff; short statute of limitations of 1871, p. 1694.
    1. Action against sheriff for damage for selling several lots of real estate in one parcel.

      (a) Came of action, when it arises.

    When the damages claimed consist of counsel fees and expenses incurred on a motion to set aside the sale, the cause of action arises when the motion is made.
    2. Act of 1871, when it attaches.
    The motion to set aside having been made after the act of 1871 the statute attaches to the claim for counsel fees and expenses thereon.
   Monell, Ch. J.,

wrote for reversal, laying down the propositions contained in the head-note.

Sedgwick, J., concurred.

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


text:
    JOHN C. CLEGG, Plaintiff and Respondent, v. FREDERICK HAMEL, Defendant and Appellant.
    Before Sedgwick and Speir, JJ.

      Decided June 5, 1876.
    The action was brought to foreclose a mortgage. The defenses were, 1. That the mortgage was given pursuant to, and to carry out an agreement, whereby a third party was to secure usurious rate of interest on a loan made by him to defendant. 2. That the mortgagee advanced the money secured by the mortgage, for the purpose of paying usury, and as part of the scheme whereby usury was to be secured.
    The court below found in favor of plaintiff. From the judgment entered against him, defendant appealed.

      George Carpenter, attorney, S. Jones of counsel, for appellant.

      John C. Clegg, in person, attorney, and Geo. W. Parker, of counsel, for respondent.
   Speir, J.,

wrote for affirmance, on the ground that the defenses were not sustained by the evidence.

Sedgwick, J., concurred.

Judgment affirmed with costs.


author: By the Court.

text:
    THOMAS NOLAN, Plaintiff, v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY, Defendant.

      Exceptions heard in the first instance at General Term.

    PASSENGER CARRIER. RAILROADS.
    1. Eon-payment offare, ejecting for^ when company not liable for. Plaintiff purchased an excursion ticket from the city of New York to Bridgeport and return; he paid $2.60; the regular fare between the two places was $1.50 each way. The ticket and return coupon attached to it, had printed on them, “Good this day only on all trains, except the Boston express trains. See printed regulations in the depot.” The regulations referred to were contained in a printed notice posted up in the depot, headed in large letters
    “Excursion Tickets.”
    Underneath this, in prominent but not quite so large letters,

      ‘ ‘ Rates for round trip. ”
    Under this,
    “Bridgeport and New York, $2.60.”
    Under this, in large letters,
    “ Rules and Regulations.”
    Under this,
    “Excursion tickets are not good, and will not be received on Boston express trains. ”
    With this ticket plaintiff got on the one o’clock, p.m., Boston express train. The conductor of that train refused to accept plaintiff’s ticket, and demanded full fare. Plaintiff refused to pay the fare, aud the conductor at the next station, without using any unnecessary force, put Mm off the train. Plaintiff claimed that he was led to take the train with the belief that Ms ticket was good, by the statements of ticket agents and doorkeepers. The ticket agent, to an inquiry made by plaintiff before purchasing his ticket, as to whether the company was selling return tickets to and from Bridgeport, said it was, and in response to a further inquiry as to at what time the train would reach Bridgeport, answered a few minutes to three o’clock. The plaintiff then purchased Ms ticket, and on presenting it to the man at the door at the entrance to that portion of the depot in which the cars are placed for the reception of passengers, was allowed to pass in.
    Before Sedgwick and Sanford, JJ.

      Decided, June 5, 1876.
    Held,
    that plaintiff had no cause of action.
    On the trial of this action in the court below, the defendant’s counsel, after the evidence had been closed on both sides, moved to dismiss the ^complaint. The motion was granted. Plaintiff excepted, and the court ordered the exceptions to be heard in the first notice at general term.-

      Thomas Nolan, in person, attorney, and Charles Mathews, of counsel, for plaintiff, cited:
    Page v. N. Y. Central R. R. Co., 65 Duer ; Higgins v. Watervelt Turnpike Co., 46 N. Y. 23, and approved in 53 Id. 28; also 55 Id. 579, and 58 Id. 221, and 57 Id. 552 ; Ker v. Williams, 6 M. and C. 150; and similarly in the recent case of Lewis v. McKee, 17 W. R. 325, L. R. 4 Ex. 58 ; Townsend v. N. Y. Central R. R. Co., 56 N. Y. 295 ; 6 N. Y. Sup'm. Ct. 495; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Pittsburg, &c. R. R. Co. v. Henning, 39 Ind. 509; Palmer v. Railroad, 3 S. C. (N. S.) 580; Alb. L. J. July 3, 1875, p. 13; Henderson v. Stephenson, Alb. L. J. August 28, 1875, p. 136 ; Burnham v. Grand Trunk R. R. Co., 63 Me. 298, reported in Alb. L. J. July 17, 1875, p. 33; Dunn v. J. F. R. R. ; Quimbe v. Vanderbilt, 17 N Y. 306 ; 28 Id. 217 ; 31 Id. 661; 48 Id. 212 ; Van Buskirk v. Roberts, 31 Id. 661; Woodruff v. Woodruff, 52 Id. 53; Robson v. N. E. R. R. Co., 10 Queens’ Bench; Weber v. N. Y. C. R. R. Co., 58 N. Y. 457.

      William C. Burnett, attorney, and Calvin E. Child, of counsel for defendant, cited:
    Townsend v. N. Y. C. & H. R. R. Co., 56 N. Y. 296; Elmore v. Sands, 54 Id. 512; McClure v. P. W. & R. R. R., 34 Md. 532; Frink v. A. & S. R. R. Co., 4 Lans. 147; Boice v. H. R. R. R., 61 Barb. 611; Steers v. Steam, &c. Co., 57 N. Y. 1; McMaster’s R. R. Law, 161, 162 : Weaver v. Rome, W. & O. R. R., 1 N. Y. Sup’m. Ct. (T. & C.) 270 ; Wertz v. Erie R. W., 3 Hun, 242.
   By the Court.

Plaintiff’s exceptions overruled, and judgment ordered for the defendant, with costs.


text:
    SARAH BOND, Plaintiff and Appellant, v. SUSAN McNIFF and others, Defendants and Respondents.
    Before Sedgwick and Sanford, JJ.

      Decided, June 5, 1876.
    I. Construction of Will.

      (a) Rule in Shelly’s case applied. „
    II. Fee.

      (a) What words necessary to create prior to the Revised Statutes.
    III. Dower. Election.

      (a) What necessary to put a widow to election.
    IV. Partition.

      (a) Interests and rights in land determinable on the happening of events, value in money can be ascertained.

      In this case, the judgment below was affirmed on the opinion rendered at special term.
   The subjects referred to in the head-note were fully-discussed in the opinion rendered below, for which see 38 N. Y. Super. Ct. 83.


author: Van Vorst, J.,

text:
    RUNYON W. MARTIN, Plaintiff and Respondent, v. JAY GOULD, Impeaded, &c., Defendant and Appellant.
    Before Curtis and Van Vorst, JJ.

      Decided, August 1, 1876.
    Default nr sebving complaint, opening.
    1. Discretion. Its opening rests in the sound legal discretion of the judge before whom the motion is held at special term.
    Appeal from an order opening plaintiff’s default and granting him leave to serve his complaint.

      Thomas G. Shearman, for respondent.

      Wm. P. Lee, for appellant.
   Van Vorst, J.,

wrote for affirmance, laying down the proposition in the head-note.

Curtis, J., concurred.

Order affirmed with costs.


text:
    WILLIAM M. GAWTRY, Plaintiff and Respondent, v. JAMES CLARK, Defendant and Appellant.
    The only question involved in this case was, whether the verdict of the jury should be sustained upon the evidence.

      C. W. Sandford, for appellant.

      J. H. Hills, for respondent.
   Sanford, J.,

wrote for affirmance.

Curtis, J., concurred.

Judgment and order appealed from affirmed.


author: By the Court.—Curtis, Ch. J.

text:
    BROWN & BROTHERS, Plaintiffs and Respondents, v. SAMUEL W. TORREY, Defendant and Appellant.
    MANUFACTURING CORPORATION, LIABILITY OF ITS STOCKHOLDERS, &c., &c.
    A stockholder claimed to be liable for debts, &c., who has himself signed the note, which is the subject of the action, as an officer of the company, is estopped from setting up a want of power in the officers to make the note (Moss -a. Averill, 10 N. T. 459).
    The act of 1853,—providing for the purchase of property by the issue of stock for the same,—does not change the effect of the law of 1848, as regards the filing of the certificate of the payment of the whole of the capital stock. The same requisites as to verification of the fact and public notice, are necessary, of the fact of the issue of paid up stock for property, in order to relieve the stockholder from liability.
    The creditors’ rights are not affected by a contract between the company and its president, of which they had no notice or knowledge.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.

      Appeal by the defendant from a judgment entered upon the report of a referee.

      R. W. Hawkesworth, and B. C. Chetwood, for appellant.

      E. New, for respondents.
   By the Court.—Curtis, Ch. J.

The defendant is sued as a stockholder in the Sewing Machine Engine Company, to recover the amount of two promissory notes, made by the company and delivered to the plaintiffs, in payment for goods sold and delivered to the company by the plaintiffs. The notes were signed by the president of the company, and also by the defendant as its treasurer, and made payable to the plaintiff’s order, and dated May 18, 1874. The goods for which they were given were sold and delivered to' the company between January 16, and April 15, 1874. This action was commenced September 26, 1874. The defendant became a stockholder and treasurer of the company in the autumn of 1873, and continued so until after the notes in suit were given. Judgments were recovered on these notes against the company in September, 1874, and executions were issued and returned unsatisfied.

The certificate of the payment of the whole of the capital stock, required to be made and recorded in order to exonerate stockholders from liability, pursuant to the requirements of sections 10 and 11 of chapter 40 of Laws of 1848, was not made and recorded until October 18, 1875,—more than a year after the commencement of the present action.

The defendant urges, that no authority is shown in the officers of the company to make the notes ; but as he himself signed them as treasurer of the company, and thus held them out to the public as valid securities, he is estopped from now setting up a want of power to execute them (Moss v. Averill, 10 N. Y. 449).

The defendant further claims, that the certificate required to be made and recorded by the act of 1848, was not necessary in this case, and that, where the trustees of a company proceed to purchase property and issue stock therefor, and comply with chapter 333, section 2, Laws of 1853, in that respect, a certificate is dispensed with, but the facts should be stated in all statements or reports made by the company, and that, if that is done, the stockholders are not liable.

In an annual report dated July 10, 1873, it is stated that stock to the full amount of the capital wa,s issued as full paid stock, for the use of certain patent rights, under which the company operated. This was not verified, except by the secretary, and was never recorded.

This cannot be construed into a compliance with the statute, as it fails in both the requisites, the verification, and the public notice, required of the certificate, and would be of no use for the protection of the public, and accomplishing the object of this provision of the law. The act of 1853 did not change the effect of the law of 1848 as regards the filing of the certificate (Boynto v. Andrews, court of appeals, not yet reported).

The defendant excepts to the finding of the referee, that the whole amount of the capital stock had not been paid in. It becomes unnecessary, in the view taken of the case, to consider this question of fact, but the evidence appears to sustain this finding of the referee.

The plaintiffs’ rights are unaffected by the contract between the company and its president, as they had no notice of it. Tire plaintiffs had the right also to sue Place & Co., the indorsers of the notes, and who also acted as agents in the purchase of the goods, without disclosing the name of their principal at the time.

The certificate of the county clerk that no certificate by the company was on file, or recorded, was competent (2 R. S. [Edmonds’ Ed.] 573, 612,) and the fact was also proved by the testimony of a witness.

There are other exceptions in the case, but none that call for the reversal of the judgment.

The judgment appealed from should be affirmed with costs.

Speir, J., concurred.


text:
    MARCUS KOHNER, Plaintiff, v. SUSANNAH A. HIGGINS and JOHN O. HIGGINS, Defendants.
    CONTRACT FOR EXCHANGE OF REAL ESTATE.
    In a contract between parties for the exchange of real estate, where each party covenants to take property subject to a mortgage of a specified amount, “and to give a good warranty deed with full covenants, and free from all incumbrances except the mortgage specified,” a tender of a deed by one party that contained after the habendum clause the following words, “subject, however, to a mortgage (describing the same fully) which said mortgage, with the interest, &c., the party of the second part hereby and by the acceptance of these presents assumes and agrees to pap,” is not a fulfillment of the contract. It is clearly a departure from the provisions of the contract, for it places the party to whom it was tendered in a different position in respect to the payment of the mortgage than if the deed had simply conveyed the property subject to it, and the party offering such deed was left in the position of having made no tender.
    If a party from bad faith or any other motive or cause, tenders a deed that openly or covertly varies in its terms from that called for by the preliminary contract, the fact that the vendee may not discover it or may not specifically point out the objection, when so tendered, does not place the party in any better position than if the objection had been made.

      In a contract of this character the covenants are mutual. The act to be done by one, is the consideration for the act to be done by the other; and consequently neither can maintain an action for non-performance against the other, until he has performed or offered to perform his part of the contract (Morris v. Sliter, 1 Den. 59; Williams v. Healy, 3 Id. 363).
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    In this case the complaint was dismissed, and the exceptions were ordered to be heard in the first instance at the general term. The action was brought to recover damages for failure to .perform a contract for the sale and conveyance of real estate situate in the city of New York.
    The plaintiff and defendants entered into an agreement, dated March 18, 1874; whereby the plaintiff agreed to sell to the defendants a certain house and lot in Sixty-first street, for the sum of twenty-eight thousand dollars, which the defendants agreed to pay as follows : to take the property subject to a mortgage of sixteen thousand dollars, and to give for the balance a house and lot on Fiftieth street, subject to a mortgage of six thousand five hundred dollars, “and ,to give a good warranty deed with full covenants, free from all incumbrance, except the mortgage;” and the plaintiff covenanted “ on receiving such payment at the time and in the manner mentioned,” to deliver a deed of the premises in Sixty-first street, free from all incumbrances except the sixteen thousand dollar mortgage.
    The plaintiff in his complaint alleges, that he duly tendered a deed in pursuance of such contract, of the house and lot in Sixty-first street, and demanded of the defendant a deed of the house and lot in Fiftieth street in pursuance of the contract, but that defendants could not give such deed in consequence of certain covenants and restrictions, to which the property was subject, and by reason thereof, failed to perform their agreement.
    The answer denies the tender, and alleges that defendants were ready and willing to complete the contract, and tendered a deed in conformity with the same, which was refused by the plaintiff, who on his part also further refused to deliver a deed of the house and lot in Sixty-first street in pursuance with the terms of the contract.

      Eugene L. Bushe, for plaintiff.

      A. S. Diossy, for defendants.
   By the Court.—Curtis, Ch. J.

The evidence shows that the deed which the plaintiff claims he tendered to the defendants, contained after the habendum clause these words :

“Subject, however, to a mortgage thereon to the North America Life Insurance Company for sixteen thousand dollars and interest, dated June 16,1870, and recorded in the office of the register of the city and county of New York, in liber 964 of mortgages, page 352, which said mortgage, with the interest to grow due thereon, the party of the second part hereby and by the acceptance of these presents assumes, and agrees to pay."

This was clearly a departure from the provisions of the contract. The i effect of this change was to place the defendants in a different position in respect to the payment of the mortgage, than if the deed had simply conveyed the premises subject to it. The deed tendered was not in accordance with the contract of sale, and the plaintiff was left in the position of having made no tender. If a vendor chooses from bad faith, or any other motive, to tender a deed that openly or covertly varies in its terms from that called for by the preliminary contract, the fact that the vendee may not discover it, or may not specifically point out the objection when so tendered, does not place the party tendering the instrument in any better position.

The plaintiff claims that, to maintain his action, it was unnecessary for him to make any tender whatever, of a deed of the Sixty-first street premises, for the reason, that performance by the defendants was a condition precedent, and that he was not called upon to tender his deed to the defendants until after they had made payment, and that, by the terms of the contract, payment and conveyance were not concurrent.

This is not the theory upon which the complaint is drawn, and is not the interpretation placed upon the contract by the parties.

The covenants in the contract between the parties are mutual. The act to be done by the one is the consideration for the act to be done by the other. Both parties are to perform at the same time and place. It is apparent that these covenants must operate as mutual conditions, and consequently neither party can maintain an action, until he has performed or offered to perform, his part of the contract (Morris v. Sliter, 1 Den. 59; Williams v. Healy, 3 Id. 363).

The plaintiff’s exceptions should be overruled, and judgment rendered dismissing the complaint with costs to the defendant.

Speir, J., concurred.


text:
    CHARLES KNOX, Plaintiff and Respondent, v. DAVID HEXTER, Defendant and Appellant.
    landlord and tenant.
    The tenant has the right to insist that unless he can have the whole premises leased, he will take nothing and pay nothing; but if he accepts and occupies a part during the term, he becomes liable to pay (upon the principle of a quantum meruit) for that which he has actually occupied under the lease.
    This principle governs the decision of this case at general term, and also in Hurlbut v. Post, 1 Bos. 28, cpnfirmed in Kelsey t>. Ward, 88 N. T. 83.
    In the case at bar, the reasonable value of the premises occupied under the lease, should have been submitted to the jury.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal by the defendant from a judgment in plaintiff’s favor, upon a verdict for seven thousand one hundred and seventy-three dollars and seventy-five cents.

      Stephen A. Walker, for appellant.

      John M. Scribner, Jr., for respondent.
   The defendant was lessee of the plaintiff of the hotel comprising the old Prescott House and an adjoining house, Ho. 97 Spring street, occupied as part of the hotel; and, the plaintiff being desirous of taking down the houses 97 and 99 Spring street, the defendant relinquished possession of 97 Spring street, on receiving from the plaintiff, on April 28,1871, a new lease, by which the old hotel building, and the five upper stories of the new building to be erected on the lots 97 and 99 Spring street, were demised to Mm for eight years from May 1,1871, at the yearly rent for the whole, of twenty-two thousand five hundred dollars, payable quarterly, the new building to be finished and possession thereof to be given to the defendant, on or before September 1, 1871. The lease contained a covenant by the plaintiff for quiet enjoyment. Through default of plaintiff, the new building was not finished nor possession given to the defendant till after ¡November 1, 1871.

TMs action was brought to recover five thousand six hundred and twenty-five dollars, for one quarter’s rent reserved by said lease, from August 1 to November 1, 1871. The defense was the neglect, delay and refusal of the plaintiff to finish or give possession of the five upper stories of the new building, containing sixty rooms, till long after November 1, 1871.

Before this action came on for trial, the defendant, by leave of court, put in a supplemental answer, setting up the fact that the defendant recovered a judgment against the plaintiff in this court for his damages in an action in which Hexter had alleged a breach of several of the covenants of the lease, among others, of the covenant to finish and give possession of the new buildings, and Knox had set up in his answer a counter-claim for the rent sued for in the present action.

At the trial, the jury, under the direction of the court, rendered a verdict for the plaintiff for the amount of a quarter’s rent and interest.

By the Court.—Curtis, Ch. J.

The recovery by the defendant, Hexter, of damages in a former suit against Knox, for the latter’s default in not giving him in time, the possession of a portion of the demised premises, does not render Hexter liable for rent of that portion of which he was thus deprived by Knox. The result of sustaining such a liability would be, that if Hexter, never having had possession at all, had recovered damages from Knox for withholding the possession, he would still be liable to, Knox for rent.

The verdict and judgment record in the former action do not operate as a bar to the prosecution of the plaintiff’s claim in the present action. It is true, the present plaintiff, Knox, set up in the former action this very claim for rent by way of counter-claim against the present defendant Hexter, but this counter-claim was withdrawn during the trial, and was in no respect submitted to, or passed upon by the court or jury. On the contrary, the court expressly charged the jury, that they had nothing to do with it, and it is shown that neither the judgment record nor the verdict embraced this claim. From these circumstances, it accords with justice, and the decisions of the courts, that the plaintiff should not be deprived of prosecuting his present claim, by reason of the proceedings in the former action (East New York & J. R. Co. v. Elmore, 53 N. Y. 524; Kerr v. Hays, 35 Id. 331; Wood v. Jackson, 8 Wend. 1; Foster v. Milliner, 51 Barb. 385; Burwell v. Knight, 50 Id. 267).

In the present action, the plaintiff sues to recover a quarter’s rent, during two months of which quarter, the defendant was deprived of the possession of a part of such premises, by the default of the landlord in not having them completed for occupation. The defendant entered into possession of the residue, and also of the remaining portion, when completed, and occupied the whole, and thereafter paid the rent for the succeeding quarters. The case is not one where the lessor evicts the tenant from a part of the premises, or where a part is recovered by title paramount to the lessor’s, nor is it a case where rent is suspended, until possession of such part from which the tenant is wrongfully evicted is restored by the lessor, because, in the present case, there has been no possession by the lessee of the part withheld or eviction by the lessor, that can be a basis for a restoration by the latter.

In the case before us, it seems a harsh rule, that would compel the tenant to pay rent for that part of the premises he has not been able to occupy by reason of the landlord’s default, and at the same time, it would be equally severe to hold that where the tenant does not refuse, but takes possession of the premises agreed to be leased, that the default of the landlord should utterly bar his action upon the contract.

The rule of law is not so inequitable, as to either party. The tenant has the right to insist that unless he can have the whole premises, he will pay nothing, and take nothing; but if he occupies a part during the term, he becomes liable to pay, upon the principle of a quantum meruit, for that which he has actually enjoyed. This principle governed in Hurlbut v. Post, 1 Bos. 28, and is confirmed in Kelsey v. Ward, 38 N. Y. 83.

In this view of the question, the case below should have been allowed to go to the jury, as to what was the reasonable value of the part occupied.

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

Speir, J., concurred.


text:
    EDWARD LYNCH, Survivor, Respondent, v. JOHN PYNE, Appellant.
    EVIDENCE.
    When the testimony of a party to the action at the trial is fully contradicted by his own letters, written at a time when the facts were fresher in his memory than at the time of .the trial, his testimony is entitled to no consideration (Boyd i>. Colt, 30 How. Pr. 384).

      The case presented (appeal from an order denying the defendant’s motion for a new trial on the judge’s minutes) is one where the court must pass upon the weight of conflicting evidence (Finch v. Parker, 49 JVC T. 1).
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal from an order denying the defendant’s motion for a new trial on the judge’s minutes.

      Geo. W. Curtis, for appellant.

      M. J. A. McCaffery, for respondent.
   By the Court.—Curtis, Ch. J.

The plaintiff sues to recover for work claimed to have been performed at the request of the defendant, and for plants and flowers furnished to the defendant, between January 3, 1870, and April SO, 1872.

The main question presented by the case is, whether the work was performed for the defendant, and the flowers and plants furnished to him or his wife at his request. The defendant and his wife lived with Mr. Cambreleng, during this period, in the house owned by the latter, and to which a conservatory and a garden were attached. Mr. Cambreleng, who was the father of the defendant’s wife, died June 34, 1872.

’ The plaintiff testifies that sometimes the defendant and his wife, and sometimes one or the other, ordered the flowers and plants in question, and that he charged them on his books to the defendant’s wife, and sent the bill to him, and that he called on the defendant with the bill on several occasions, but that he never promised to pay it personally.

The plaintiff called a witness who testified that he called on the defendant many times in relation to the bill, when he would sometimes say: “I can’t do anything to-day,” or would answer affirmatively when asked by witness if he should call again. But as the defendant was at this time the executor of Mr. Cambreleng’s estate, it may have been that he was answering in that capacity, especially as the plaintiff was seeking' to collect this same claim from that estate, and to its liability for which no question was raised. It appears that this estate was insolvent.

The defendant testified, that he did not order these plants or flowers, and that the only transaction he ever had with the plaintiff’s firm, was the purchase of a boquet, fifteen years previously, which he paid for; that he never authorized the trusting of his wife, or knew of it; that no bill was made ont to her until after her father’s death ; and that she attended to her father’s commissions, he being advanced in years, such as making purchases for the house; and that he had heard him direct her to go and order plants, but that he never knew her to do so except for her father. The defendant also testified that no bill was ever made out against him, and that when he first received the bill made out against his wife, he notified the plaintiff that it was improperly made out against her, and that it should be made out against Mr. Cambreleng.

In examining the testimony of the plaintiff (for it will be observed that the case rests chiefly upon the testimony of the two parties), there are some circumstances that do not tend to sustain the statements of the plaintiff at the trial. For instance, the defendant, on June 23, 1873, wrote plaintiff’s firm the following letter:

“Hew York, June 23, 1873.
“Messrs. Bridgemak & Co.
“Dear Sirs: I am not aware that any of the articles in your bill were ordered for me or on my credit. Your bills have always been made out, rendered to, and paid by Mr. Stephen Cambreleng, and were for work done in, and plants furnished to his garden and conservatory, No. 35 Great Jones street, which plants were appraised as part of his estate. There was a bill for these very articles rendered in Mr. Cambreleng’s lifetime, made out to him, as every bill ever rendered by you was made out to him, and the only account ever kept by you was with him. I shall resist firmly any attempt to make me liable for any goods or labor furnished or alleged to have been furnished by you to Mr. Cambreleng, or for his house and garden. Tour claim, if any, is against Mr. Cambreleng’s estate, and has been already made against his estate.
“Yours truly,
“J. Pyne.”

In answer to that note, the case admits that the plaintiff sent the following letter:

“New York, June 26, 1873.
“John Pyne, Esq.
‘ ‘ Dear Sir: You have mistaken the tenor of our note, in supposing that we expected to make you liable for the bill. Not at all. The bill is, as you say, against the estate of Mr. Stephen Cambreleng, and the reason why we wrote and sent to you, was for the reason that-knowing you to be one of the executors, you might be able to satisfy us in regard to the payment; as being very short at present, and having waited so long, we thought, that probably the estate was in such a condition now, as to admit of the payment of the bill. We hope you will consider us right in this matter, and as soon as the estate will be in a condition for payment, notify us, and you will greatly oblige
‘‘ Yours respectfully,
“Bridgeman & Co.”

This last communication appears to be an explicit disavowal of any claim against the defendant personally for the bill, and was written at a time when the facts were fresher than at the trial, in the memory of the plaintiff. This seems to bring the case within the principle, that where a party’s oath is flatly contradicted by his own letters written long previous to the commencement of the action, it is entitled to no consideration (Boyd v. Colt, 20 How. Pr. 384).

The next circumstance affecting the plaintiff’s testimony, arises from the affidavits made by him in the usual form, September 1, 1873 (two months and more after writing the last letter), to substantiate his claims upon the estate of Mr. Cambreleng. By these, he confirms under oath his statement in the letter, that this bill in controversy was a claim against the estate of Mr. Cambreleng. The plaintiff stated at the trial, that he knew the claim was against Mr. Pyne, and believed that he had no claim., against Mr. Cambreleng, none whatever, but that he made the affidavits at the defendant’ s request, and that he took the latter to be an honorable man, and that on his- statement that he would get some money, he felt justified in making the affidavits. ,

It is probably not the first time that a claim has been sworn to and presented against the estate of a deceased person from that motive, but I am not aware that any court has held it a justification for a knowingly false affidavit.

There are some other features in the case, that strengthen the defendant’s testimony, that the bill was Mr. Cambreleng’s, besides the letter and affidavits of plaintiff. It is conceded that, in July, 1871, Mr. Cambreleng’s note at ninety days for $330.90, being for a part of this bill, was taken by the plaintiff, and subsequently protested.

Plaintiff’s firm had attended to Mr. Cambreleng’s garden, and supplied plants for his house and conservatory for a long term of years, before the bills in question were incurred, and these latter were originally made out in his name. No charge appeared on the plaintiff’s books against the defendant personally.

The case presented is one where the court must pass upon the weight of conflicting evidence (Finch v. Parker, 49 N. Y. 1). The result of the examination is a conviction that the verdict of the jury cannot be sustained.

Under such circumstances the judgment must be reversed, and a new trial ordered with costs to abide the event.

Speir, J., concurred.


author: By the Court.—Curtis, Ch. J. Speir, J. (concurring).

text:
    ELISE MAGNIN, and Others, Plaintiffs and Appellants, v. WILLIAM B. DINSMORE, President of The Adams Express Company, Defendant and Respondent.
    carrier and shipper, their relations, &c.
    A concealment by the shipper of the true value of the goods shipped, or his silence alone, discharges the carrier from liability for ordinary negligence (See this case in court of appeals, 62 IK. 7. 35 to 46).
    The court of appeals declined to hold, however, in this case, that such an exoneration would reach the defendant (the carrier), where his acts, or those of his servants and agents, in relation to the goods, amounted to misfeasance or abandonment of his character as carrier, but reversed the judgment and ordered a new trial on the point stated above.
    On the new trial upon the same record and evidence, the court charged the jury that if the loss occurred through gross negligence, or misfeasance in regard to, or abandonment or conversion of, the property by the carrier, he was liable. The jury found a verdict against the carrier for the full value of the property. The judgment entered was reversed on appeal by the general term of this court, because of error in the charge, and a new trial ordered. On this last trial the verdict for fifty dollars, and the judgment thereon was in accordance with the views of this court at general term, as it interpreted the decision of the court of appeals, and is now affirmed, but leave given to the defendant to appeal therefrom to the court of appeals.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal by the plaintiff from the judgment entered upon the verdict, and from the order denying a new trial on the judge's minutes.
    The action was brought by the plaintiffs, to recovei the value of a package entrusted to the defendant’s care for transportation to Memphis, Tenn.
    The facts, and the history of the case, appear in 35 N. T. Super. Ct. (3 J.&S.) 182 ; 53 U. T. 652 ; 56 Id. 168; 38 N. T. Super. Ct. (6 J.&S.) 248 ; 62 D. T. 35; 40 If. T. Super. Ct. (8 J.&S.) 512.

      Charles M. Da Costa, for respondent.

      C. Bainbridge Smith, for appellant.
   By the Court.—Curtis, Ch. J.

When this case was last before the court of appeals (62 N. Y. 35, 46), it was held that in consequence of a concealment by the plaintiff of the true value of the goods, the defendants were relieved from liability for a loss occurring from ordinary negligence ; but the court expressly declined to hold that this exoneration extended to the defendant where his acts, or those of his servants, have amounted to misfeasance or abandonment of his character as carrier.

When the cause was next tried, in November, 1875, the court charged the jury in effect that if the loss occurred through gross negligence, or misfeasance, or by reason of abandonment, or of a conversion of the property by the defendant, that the defendant must be held liable. This was held to be error by the general term, and the judgment in plaintiff’s favor upon the verdict rendered under this instruction was reversed. Each of the two learned judges who heard the appeal concurred in this result, though not for the same reasons.

The impression still exists with me, that in view of the discovery of the rifled package in the harbor after its delivery to the defendant, and the absolute silence of the defendant in respect to it, either by way of explanation or accounting for it, this instruction to the jury was right, and that there was evidence sufficient to warrant the submission of the question to the jury. This impression is strengthened by the views expressed and the adjudications referred to in the decision of Fairfax v. New York Central & Hudson River R. R. Co., recently made by the court of appeals, and not yet reported.

The case now comes up on the appeal of the plaintiff from the judgment rendered on the verdict for $50 and interest at the special term, in pursuance of the decision of the general term granting the last new trial. Guided by this decision of the general term, it would seem that this judgment should be afiirmed; but as the plaintiff also moves that in case of such affirmance he may have leave t@ appeal to the court of appeals, there should be such leave given him, as the case appears to be one entitling him to it under the provisions of chapter 322 of Laws of 1874.

Speir, J. (concurring).

The court of appeals (62 N. Y. 35) held that silence alone, on the part of the shipper, as to the real value of the goods contained in the package, amounts to a fraud in law, which discharges the carrier from ordinary negligence. It did not hold, as I understand the opinion, that the carrier would be thus relieved from liability where his acts, or those of his servants, amount to a misfeasance or abandonment. The point was suggested, but the case did not call for a decision upon it, as there was no evidence in the record before the court of misfeasance or abandonment.

The two subsequent trials were had upon the same record which was before the court of appeals, without further or other evidence. On the first trial, the jury found a general verdict for the full value of the goods, which was set aside by the general term. On the second, the verdict was rendered in obedience to the decision of the court of appeals. There appears to be nothing left for this general term but to follow the decision of that court.

I am of the opinion, therefore, that the litigation must be deemed to be ended and finally disposed of by the court of last resort. The point seems to be doubted, and I agree with my learned associate that leave be given to the plaintiff to appeal.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff and Respondent, v. W. H. BULL, Defendant and Appellant.
    ACTION TO RECOVER A PENALTY.
    Under the general or revised statutes it is provided as follows ; " Upon every process issued for the purpose of compelling the appearance of the defendant to any action for the recovery of any penalty or forfeiture, shall be indorsed a general reference to the statute by which such action is given, in the following form, ‘ According to the provisions of the statute regulating the interest on money,’ or ‘ according to- the provision of the statute concerning sheriff,’ as the case may require, or in some other general terms referring to such statute ” {Banks' Bevised Statutes, 4th Edition, marginal page, 784, § 7). The object of this pro- . vision was to inform the defendant of the nature of the action, when the' same was commenced by the ordinary process (capias) of the courts of record before the adoption of the Code; but when the action was commenced by the service and filing of a declaration, which contained the information, it was held to be a compliance with the statute (Thayer v. Lewis, 4 Denio, 271).
    The same principle has been applied to the present practice, and it has been held, that where the information is contained in the complaint attached to and served with the summons, that the statutory requirement is fulfilled. (Cox vi New York Central & H. Pu. R. R. Co., 61 Bari. 615).
    The complaint in this action that was attached to and served with the summons, shows that the action was to recover a penalty for “the violation of the insurance acts and statutes of the State.” This is a sufficient compliance with the statute.
    But under the Code there is just reason to hold that the statute is no longer in force.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal by defendant from an order made at special term.

      H. C. Place, for appellant.

      Henry E. Davies, Jr., for respondent.
   By the Court.—Curtis, Ch. J.

This action is brought to recover a penalty or forfeiture.

The defendant moved to set aside the summons and dismiss the complaint, upon the ground that no statute is pleaded, and that no indorsement is made upon the summons, and that no reference to the statute under which the plaintiff claims is made, either in the summons or complaint.

The appeal is from the order denying this motion.

Under the general or revised statutes it is provided as follows :

“ Upon every process issued for the purpose of compelling the appearance of the defendant to any action for the recovery of any penalty or forfeiture shall be indorsed a general reference to the statute by which such action is given, in the following form: ' according to the provisions of the statute regulating the interest on moneyor, according to the provision of the statute concerning sheriff,’ as the case may require ; or in some other general terms referring to such statute” (2 R. S. 481, § 7).

The object of this provision of the statute was to give information to the defendant of the nature of the action, which, previous to the adoption of the Code, did not very clearly, appear by the ordinary process, capias, by which actions were then commenced. But even then, if the action was commenced by a declaration, and this information was contained in the body of it, there was held to be a sufficient compliance with the statute (Thayer v. Lewis, 4 Den. 271).

. The same principle has been applied to the present practice, and it is held; that when this information is contained in the complaint attached to the summons, that the statutory requirement is fulfilled (Cox v. N. Y. Central and H. R. R. R. Co., 61 Barb. 615).

In the present case the complaint accompanied the summons, and on its face showed, that the suit was to recover a penalty for the “violation of the insurance acts and statutes of this State.” If the statutory requirement is still in force, this seems to be sufficient, for the defendant is not prejudiced by being kept in ignorance of the nature and cause of the proceeding against him. The statute only requires that the reference should be made in some “general terms,” and not specifically.

But as the Code prescribes the .form and requisites of the; summons for the commencement of actions^ and also the notices to be inserted in it, and provides that all statutory provisions inconsistent with the act are repealed, there is just reason for considering that the section requiring this indorsement upon process is no longer in force. One of the objects sought to be accomplished by the enactment of the Code, was to simplify the form of process,- and to relieve it of the complications and embarrassments arising from various common law and statutory rules affecting it.

The order appealed from should be affirmed with costs and disbursements.

Speir, J., concurred.


text:
    JACOB SOLOMON, Plaintiff and Respondent, v. THE METROPOLITAN INSURANCE COMPANY, Defendant and Appellant.
    INSURANCE. PRELIMINARY PROOFS OF LOSS. FAILURE TO BRING ACTION WITHIN THE TIME PRESCRIBED BY THE POLICY.
    In the ease at bar, the court charged the jury, that it was for them to consider whether the acts and statements of the defendant, that were proved before them, had the effect on the plaintiff’s mind of preventing him from presenting further and detailed proofs of loss as required by the policy, and also from bringing the action on the policy within the time required by it, and if they found affirmatively, that the plaintiff was entitled to recover. Held,, that there was no error in this charge.
    If an insurance company holds out to parties insured, an officer or agent to represent it in respect to losses, and to speak for it at its office, in negotiations for the settlement and appraisement of losses, it cannot afterwards question Ms power to bind the company.
    It is the right of the jury to reconcile and to decide upon conflicting testimony before them, in accordance with proper rules indicated by the court,
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal by the defendants from a judgment entered upon the verdict of a jury.

      F. J. Fithian, for appellants.

      Miles Beach, for respondent.
   By the Court.—Curtis, Ch. J.

This action is to recover for a pro rata of loss upon a policy of insurance. The defenses were, that plaintiff omitted to serve proofs of loss, and that he did not begin suit within twelve months next after the loss, as required by the conditions of the policy.

The fire occurred January 26,1873. Due notice was given of the loss; the amount of which was fixed and determined by appraisers chosen by both parties, on February 1, 1873. A son of the plaintiff was arrested upon a charge of setting the premises on fire.

The plaintiff called- two witnesses, who testified to a statement made by the defendant’s secretary, about February after the fire, to the plaintiff, when he threatened to sue, to the effect that it was of no use to sue, as the defendants were willing to pay their pro rata share as soon as the boy was discharged. The boy was discharged about June 4, 1874, and this suit was commenced in July, 1874.

The secretary of the company admits knowledge of the boy’s arrest, the notice and appraisal of loss, and the demand and threat to bring suit; but denies that he made the alleged statement in reply. There was other testimony on the part of the defendants, showing a conversation in June, 1874, on the subject of this loss, between the secretary and one of the plaintiff’s witnesses, Mr. Harlem. The latter testified that he was also there at a second or third interview in June, after the boy’s discharge, with one L. Morris, who asked the secretary why they did not pay, and he said he was not sure the boy was discharged, and refused to pay.

It was for the jury to pass upon this conflict of evidence, to find whether any witness testified falsely, or whether the secretary of the company might not have forgotten the first interview, happening shortly after the appraisement. The disposition of it lay within their province, and the case fails to disclose any such preponderance of evidence in the defendant’s favor, as calls for granting a new trial. It was the right of the jury to seek to reconcile the testimony; and the mode in which it could be done was indicated in the judge’s charge. Unless the plaintiff was induced by some act of the defendant, it is hardly probable he would have failed to present proofs of loss, and sue within the time specified in the policy.

The court also charged the jury, that if they found this promise to .pay without suit on young Solomon’s discharge was made, it was for them to consider whether that promise, together with the fact of the appraisement being voluntarily made by the defendant, had the effect on the plaintiff’s mind of preventing his taking steps to present further and detailed proofs of loss, and whether it had the further effect of preventing the bringing of the action upon the policy; and that, if they found affirmatively, the plaintiff was entitled to recover the loss as adjusted. There was no error in this.

It is insisted that the defendants are not bound by any such statement as their secretary is claimed to have made ; but if they hold 1pm out to parties insured, to represent them in respect to losses, and speak for them at their office, in negotiations for the settlements and appraisements of losses, it is inconsistent with good faith towards parties who have rested relying upon his statements or promises, to raise technical objections to his authority to bind them. The company cannot justly allow one of its officers to mislead persons under such circumstances, and after inducing them to omit presenting proofs of loss or commencing suit in time, take advantage of such omission by questioning their officer’s power (Amey v. New York Union Ins. Co., 14 N. Y. 266; Ripley v. Ætna Ins. Co., 30 Id. 164; Dickerson v. Wason, 47 Id. 439).

The evidence does not sustain the objection, that the judgment must be reversed because it affirmatively appeared that the plaintiff was not the owner of the claim when the suit was commenced.

The judgment appealed from should be affirmed with costs.

Speir, J., concurred.


text:
    J. B. WILLIAM WILSON, Plaintiff and Respondent, v. AUGUSTA S. KNAPP, Executrix, &c., and SHEPARD KNAPP and EDWARD S. KNAPP, Executors, &c., Defendants and Appellants.
    COLLISION OF VESSELS.
    Owkbbship of Vessel, Aim title of same.

      Belatwe rights of a mortgagor, the owner of the vessel as appears from her register, and his mortgagee, or the assignee of such a moidgagee in possession of the vessel.

    The plaintiff, a resident of Port au Prince, Hayti, was the owner and in possession of the vessel in question prior to the execution of a mortgage upon the same in August, 1870, to one Ballon, to secure the payment of three thousand pounds. Ballon, upon the same day the mortgage was made, assigned the same to Oliver Outts & Co., of Port au Prince, Hayti, who took and held possession of the vessel under the mortgage and assignment, and at the time of the collision (in December, 1874), the vessel was in possession of parties by virtue of letters of attorney from Cutts & Co., and these parties were entitled to the profits of the vessel, but for the collision.
    The vessel was registered in the name of the plaintiff, and the mortgage and assignment of the same recited the fact that the vessel was the property of the plaintiff, “as per register, ” and the mortgage had not been foreclosed.

      Held, that under these circumstances, the plaintiff’s title to the vessel and his rights therein were such, that he was entitled to sue for damages for an injury to the vessel, notwithstanding he was not in possession, and had not been for some years, and was not entitled to her earnings or profits at the time of the collision.
    The plaintiff can tender the amount due on the mortgage and redeem his vessel; or, if she has earned enough to satisfy the mortgage, he can compel an accounting, and thus redeem her.
    The improbability of redemption, and the lapse of four years without any effort for redemption, are not facts which of themselves divest the plaintiff of his legal right to redeem the vessel.
    The trespasser cannot avoid his liability for the damage he inflicted upon the vessel, by setting up the rights or equities of other parties in the same, who are cognizant of the facts and have notice of the plaintiff’s action, and approve and promote the same.
    The referee found the expense of certain work was four hundred dollars, and that he found no evidence to enable him to specifically detail the several items of this expense, to which the defendants excepted. Held, that if the defendant wished the referee to find the items making up this amount, he should have in some way furnished the evidence.
    It has been held that no exception lies to the refusal of a referee to find the particulars which go to make up his general conclusions' of fact (Avery v. Foley, 4 Hun, 415).

      Before Curtis, Ch, J., and Speir, J.

      Decided January 2, 1877.
    This is an appeal from a judgment in favor of the plaintiff for $5,633.88, entered upon the report of Edward L. Owen, Esq., referee to hear and determine the issues.
    The action was brought by the plaintiff, claiming to be the owner of the barque “Trait d’Union,” to recover damages for an injury to the barque, caused by a collision with the ferry-boat Martha, owned by the original defendant, Gideon L. Knapp.
    On the night of December 25,1874, while the barque was . lying moored on the southerly side of a wharf at Greenpoint, East Biver, the Martha, while the pilot was absent from the wheel, came in collision with her, striking her on the starboard side, forward of the main rigging, and angling towards the stern, crushing in her side, raising her deck, and also starting planks and breaking fenders on the port side.
    At the trial before the referee, there was no controversy as to the fact of the collision, or the liability for the damage; but the defendants claimed, that the plaintiff was not the real party in interest, and had no right to sue; and that the damage did not exceed $1200.

      Edmond Wetmore, for appellant.

      William W. Goodrich, for respondent.
   By the Court.—Curtis, Ch. J.

The barque “Trait d’Union” was, previous to June, 1870, an armed vessel belonging to the Haytian government. About June, 1870, she was purchased from that government for her subsequent owners, by William H. Ballon, who has for several years past been her master. This witness testified, that at the time of the collision, the plaintiff was the owner of the vessel; and that he lived at Port an. Prince, Hayti; that he appears on the register as owner; and that the legal title is in the plaintiff.

It was shown that on August 4, 1870, the vessel was mortgaged by the plaintiff to Ballon, to secure £3,000, and on the same day, Ballon assigned the mortgage to Oliver Cutts & Co., of Port au Prince, to secure £2,500. Both in the mortgage and assignment, it is recited, that the vessel is the property of the plaintiff, “as per register.” Under these documents, the possession of the vessel passed from the plaintiff to Oliver Cutts & Co. prior to September, 1870. The latter, in September, 1870, by letters of attorney, authorized Robert Murray, Jr., of New York, to act as general agent of the vessel, and to sell and deliver her. Murray and Ballon testified, that, previous to the collision, they each acquired an interest in the profits of the vessel, amounting respectively to about one-half each. They were in actual possession of the vessel at the time of the collision, and entitled to the profits she would have earned but for the collision.

The plaintiff was the owner, and in possession of the vessel prior to the mortgage to Ballon. The execution of that mortgage, and the taking possession of the vessel under it, by the assignees of the mortgage, Oliver Cutts & Co., are the only circumstances shown, that affect the rights of the plaintiff to the vessel. There has been no foreclosure of this mortgage. The plaintiff has a right to tender the amount due upon the mortgage, and redeem his vessel, or if the vessel has earned enough to satisfy the mortgage, while in the possession of the mortgagee or his assignees, he has a right to compel them to account to him, and to redeem the vessel. It was his right to mortgage his vessel to his creditor to secure an indebtedness, and it was equally his right to place that vessel in his creditor’s possession, until the use and profits of it should extinguish that indebtedness. All this the plaintiff could do, without parting with the whole beneficial interest in the vessel. The improbability that the mortgage would be paid, either by the plaintiff, or by the profits of the vessel, and the lapse of four years between the execution of the mortgage and the collision, without any effort to redeem or to compel an accounting by the plaintiff, are not in themselves circumstances that divest him of his legal rights to redeem this vessel.

The defendants in their points state, that the plaintiff’s name was kept in the register, simply to secure the benefits of a British registry for a vessel practically belonging to other than British subjects; and that this is a common device. While such a practice may invite the attention of a political economist, or in a proper case call for the action of a court, yet the evidence in the case before us does not disclose facts sustaining the defendant’s claim.

Though at the time of the collision, the profits of the vessel did not belong to the plaintiff, and he was not in possession of her, yet he had rights that entitled him to sue for damages for an injury to the vessel. If Oliver Cutts & Co., as assignees of the mortgage, or if Ballon or Murray, having interests under, or acting for them, have any equities to protect, it is apparent that they have notice of .the plaintiff’s suit and are promoting it, and, it is to be presumed, consider themselves duly protected. It is not for the trespasser to avoid his liability for the damage he has inflicted, by setting these up in their behalf.

The next question for consideration is whether the referee has erred in ascertaining the amount of damage to the vessel from the collision.

The referee found that the expense of repairing the damage to'the vessel was §3,877.77.

Bucknam & Co.’s bill as shipwrights and caulkers was . . . $4,122.78

Wm. Cochran’s bill as rigger was . 4.30

J ames Mahon’s bill as plumber, was 7.92

Robert S. Place’s bill as shipsmith was ...... 165.37

John J. Coger, bill as ship joiner was ...... 199.20

$4,499.57

In addition to the above bills for repairs, there were others presented by the plaintiff, and claimed, making in all $7,462.85.

The referee found that the vessel was not strained all over, and that the re-fastening and re-metaling her was unnecessary, and also that the recaulking her all over was unnecessary. He appears to have rejected from consideration all the bills except the five above described, amounting to $4,499.57.

Prom these latter he apparently rejected the cost of replacing timbers and planks that were decayed . $215.80

Also the expense of watching metal 6.00

And also the expense of the work he considered unnecessary, for re-caulking, remetaling and ref asteningher, . . . . . 400.00

$621.90

Subtracting these deductions from the amount of the five bills, leaves the amount found for repairing the damages, $3,877.77.

The performance of the work, and the supply of the materials, charged for in these five bills, is proved by various witnesses. They are testified to, as just and reasonable, and, with the exceptions above stated, are shown to be proper and necessary to make the vessel as good as she was before the collision.

In addition to the $3,877.77 the referee finds, that the value of the use of the vessel was $35 a day, or for the period of twenty-one days, while she was detained undergoing repairs, $735. The evidence is sufficient to sustain him in finding a larger amount than that, and it is an item in the amount of the damages caused by the collision.

There was some conflict in the estimates by the witnesses of the amount of damage, and there was testimony tending to show that the extent of the injury was not apparent until the vessel was stripped and on the dock. Ho sufficient reason is shown to lead to the conclusion that the referee has in any degree over-estimated the damage.

There were some exceptions taken at the trial in regard to the admission of evidence, but none that appear material.

The referee found, under an order of the court, that the expense of caulking the bottom and furnishing materials, and stripping off and putting on metal, was $400, and that other than this, he found no evidence enabling him to specifically detail the several items making up this amount. To this the defendant excepts. It has been held that no exception lies to the refusal of a referee to find the particulars which go to make up his general conclusions of fact (Avery v. Foley, 4 Hun, 415). If the defendant had wished the referee to find, specially, the several items making up this amount, he should have put it in the power of the referee to do so, by showing it, either upon the examination of the witness Kosevelt, who testified to estimating the number of sheets of copper originally on the vessel, and the difference between new and old as affecting the price, and also as to the other items in the rejected amount he valued, or in some other way.

The judgment appealed from should be affirmed with costs.

Speir, J., concurred.


text:
    HENRY WEIL, Plaintiff and Appellant, v. FANNY FISCHER, et al., Defendants and Respondents.
    REAL ESTATE. MORTGAGE.
    Rights of Assignee.

      Sepresentations of moi’tgagoi' to assignee immediately premows to the sale and assignment of the same—effect of.

    Where a mortgage has been executed and placed upon the market for sale, and both the mortgagors and mortgagee assured the person who proposed to purchase, and who afterwards became the purchaser and assignee of the same, when they were inquired of in relation to the mortgage, that the consideration was for money advanced by the mortgagee for building the house on the premises, and the mortgagors assured him it was made for value, and gave him a certificate, stating among other things, “that they knew of no offset or defense, legal or equitable, to said bond and mortgage, ” and the said assignee relied upon those statements and certificate, and purchased the bond and mortgage, the mortgagors cannot afterwards show that the bond and mortgage was without consideration and void because of usury in its inception.
    It is the right of the assignee, plaintiff in such a case, to prove that he relied upon the facts stated in the said certificate, and acted upon such reliance, and bought the mortgage in good faith, in order to show that good faith and conscientious course and equity, upon which the doctrine of estoppel rests (Wilcox 0. Howell, 44 N. T. 402; Eitel 0. Bracken, 38 N. 7. Superior Court Sep. 7).
    The evidence shows that the mortgagors, although Germans, had as good or a better knowledge of the English language, than most Germans who have been for the same long period residents of this country. The one read the certificate to the other, in the presence of the plaintiff’s attorney, and both said they understood it. They had the fullest opportunity to enlighten themselves as to its effect, and if they omitted so to do, under the circumstances shown, the law gives them no special immunity or privilege, to avoid an obligation thus incurred, or to accomplish a wrong, under the plea or claim of an imperfect acquaintance with the English language, and such a claim cannot be sustained.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal from judgment.

      S. T. Freeman, for appellant.

      M. L. Townsend, for respondents.
   By the Court.—Curtis, Ch. J.

The action is brought to foreclose a mortgage. The answer admits the making of the bond and mortgage, and sets up that they were made to Emma R. Wessa, to enable her to borrow money thereon, and without any consideration whatever, and that the plaintiff knew these facts at the time of the assignment fco him.

The answer also alleges that Mrs. Wessa assigned the bond and mortgage to the plaintiff as security for a sum loaned and advanced by the plaintiff to Mrs. Wessa, and which sum was less than their face, and claims that the transaction was usurious.

There is no evidence that the plaintiff had any knowledge or notice of these facts alleged by the defendants in respect to the mortgage, at, the time of the assignment to him. His attention was called to this mortgage by his attorney, to whom the broker of the mortgagee applied to sell the mortgage. The plaintiff took the usual steps and precautions, that any purchaser o£ a security of this nature takes. His attorney examined the title to the property, and made inquiries about the mortgage. The mortgagee’s broker told him that the consideration for the mortgage was money advanced by the mortgagee for building the house upon the premises described in the mortgage. This statement was confirmed by Fischer and wife, the mortgagors, when the plaintiff’s attorney inquired of them about it. They assured him it was made for value, and gave him a certificate stating, among other things, that they knew “ of no offset or defense, legal or equitable, to said bond and mortgage.” The price the plaintiff paid for the purchase of the security, which was thus put upon the market, may have been, for anything that appears in the case, greater or less than its value. But, however this may have been, the mortgagors cannot be sustained in their position that they misrepresented the matter, and, after having fraudulently and in collusion with the mortgagee induced the plaintiff to part -with his money, that they are now at liberty to show that the security was without consideration, and that it is usurious, and thus defraud him.

The evidence does not sustain the claim of the mortgagors, that the mortgage was without consideration ; for one of them admits in the course of his cross-examination that the mortgagee’s agent had advanced money to pay for work on the house on the mortgaged premises, and that the mortgage was given to pay for it, which statement is confirmed by the testimony of the other mortgagor, that she signed the mortgage because she supposed it would be used for the house.

The allegation of the defendants, that Mrs. Wessa assigned the security to the plaintiff to secure a loan made by him to her, fails of proof. The transaction between her and the plaintiff was simply a purchase, for a certain sum, of the security in question.

The claim of the mortgagors, to be exonerated from the effect of the representation that the mortgage was made for value, and from the statements in the certificate given at the same interview, in consequence, of their imperfect acquaintance with the English language, is difficult to sustain. The evidence shows they had as good or a better knowledge of the English language than most Germans who have been for the ' same long period of years in this country. The one read the certificate to the other, in the presence of the plaintiff’s attorney, and both told him that they understood it. There is no fraud or bad faith alleged against the plaintiff. They had the fullest opportunity to enlighten themselves as to its- effect, and if they omitted to do so under the circumstances here shown, the law gives them no special immunity or privilege to avoid an obligation thus incurred, or to accomplish a wrong.

The plaintiff excepted to the ruling of the court, excluding the question, as to whether he purchased the mortgage relying on that certificate. The plaintiff should have been permitted to show that he bought the mortgage in good faith, relying upon the certificate (Dinkelspiel v. Franklin, Supreme Ct. General Term, First Dept., not yet reported). It is the right of the plaintiff to show that he believed and relied on the facts stated in the certificate, and acted upon such reliance, in order to show that good faith, and conscientious course and equity, upon which the doctrine of an estoppel in pais rests (Wilcox v. Howell, 44 N. Y. 402 ; Eitel v. Braken, 38 N. Y. Super. Ct. 7). The plaintiff in this case had the same right to testify concerning these matters, as any other person called as a witness. The plaintiff, when recalled, testified without objection, that before he paid the money, he relied upon what was told him about the mortgage.

If these views are correct, the judgment cannot be upheld, and it should be reversed and a new trial granted with costs to abide the event.

Speir, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    JAMES LAWRENCE, and others, Plaintiffs, v. SILAS MERRIFIELD, WILLIAM O. McDOWELL and EDWARD L. MERRIFIELD, Defendants.
    I. PARTNERSHIP. LIMITED TINDER THE STATUTE.

    1. CASH PAYMENT BY SPECIAL PARTNER.

      {a) Effect of ; what it does not depend on.
    1. It does not depend on the means used by the special partner to obtain the money, so long as the ownership of the money paid in is in the special partner.
    (6) Good faith in payment of ; requirement of the statute AS TO, WHEN SATISFIED.
    1. When the owner of money pays it into the common stock, under the forms of the statute, and it is thereafter left to the risk of the business, with an accompanying intent so to pay and so to leave it, and with no intent and no purpose of making such payment and devotion of the money to the business otherwise than real, actual or absolute, this requirement of the statute is satisfied.
    3. APPLICATION OF THESE PRINCIPLES.

      (a) What facts not sufficient to sustain a verdict holding one, who has in manner as above paid in money as special partner, as a general partner, on the ground that such payment did not meet the requirement of the statute.
    1. Sale by one to become special to one to become a general partner in a contemplated special partnership.

      1. The facts

      (a) That the cash contributed by the special partner was obtained by him from the general partner on a sale to him of a stock of goods ;

      (V) That the sale was made with a view of enabling the special partner to become such ;

      (c) That the goods were worth only from fifty to seventy-five per cent, of the amount at which they were sold to the general partners;

      {d) That it was the understanding at the time of the sale, that the stock of goods so sold, should be brought into the firm by the general partner, at the price at which it was sold to him, as his contribution to the capital of the firm, called for by the partnership articles;—
    Are not sufficient to sustain a verdict holding the one so paying in his cash as a special partner to be a general partner.
    3. Separate verdict.—See post.

    H. SEVERAL VERDI OT AND JUDGMENT. DEFENDANTS.'

    1. General and special partners.

      (a) Action against a member upon notes alleged to have been made by them as copartners under a certain firm name, and for goods alleged to have been sold them as such partners under such firm name. Defense by one, that he is a special partner, which is maintained ; defense by another, averring the limited partnership, and denying that the notes were made by, or the goods delivered to, the defendants, and alleging that the «• notes were made by and the goods sold to one of the general partners in the name of the firm as such limited partnership, which allegations and denials are maintained; Held, that verdict and judgment should go in favor of the special pmdner, and against the others.

    Before Sedgwick and Speir, JJ.

      Decided January 2, 1877.
    Verdict for plaintiff," and the exceptions ordered to be heard in the first instance at general term.
    The action was on contract, against the defendants as partners. The defense of Edward L. Merrifield was that he was a special partner, under the statute for the formation of limited partnership. As to this defense, the defendant gave in evidence, the certificate under the statute in due form, proofs of due publication, and the affidavit of McDowell, one of the general partners, “that the sum specified in said certificate, to wit: $5,000, to have been contributed by the special partner Edward L. Merrifield, to the common stock, has been actually and in. good faith paid in cash.” The plaintiffs called as their witness, McDowell, who said that before the formation of the partnership, the defendant, Edward L. Merrifield, “had been in this same business for some time alone, without any partner, and had a stock of merchandise, desks, safes and various paraphernalia for doing the business on hand. He stated 'to me, that it was impossible for him to contribute merchandise as a special partner, and therefore invoiced the merchandise to me, and I paid him with my money for it, and then he checked upon the same account, and I contributed the merchandise to the firm; Q. That is, he sold you the merchandise, checked against the money received for it, you contributed the merchandise, and he contributed his check in that manner ? A. Yes, sir.”
    It also appeared that the check given by McDowell was upon his own bank account, in which he had money to an amount greater than the check, and that defendant, Edward L. Merrifield, deposited in his bank this check and then drew his own check for $5,000, and paid it into the partnership before the advertisement. On the day of the sale of the merchandise, the partnership articles were executed, by which the special partner was to contribute $5,000 in cash, and “the said McDowell shall contribute $5,000 in merchandise or money, or in both.” McDowell contributed under this, as' his part of the capital, the merchandise sold to lrim by Edward L. Merrifield. He testified that at the time of the purchase, it was not worth $5,000, but only from 50 to 75 per cent, of that amount. The sale had not been impeached for fraud, by McDowell.
    At the close of the testimony, the defendant E. L. Merrifield’s counsel asked the court to direct a verdict-for him, on the ground that the testimony showed that he was not a general partner. The court refused this, but submitted to the jury the single question, whether the capital paid by Edward L. Merrifield, was in fact paid in cash, in good faith % On this point the judge charged, “If you find that the statement- contained in the affidavit of McDowell, with respect to the payment in cash, of the amount of capital specified in the partnership certificate, to have been contributed to the common stock, by the special partner was untrue; that the plan adopted to effect such payment was a mere covert device, a contrivance to effect the semblance of a payment in cash by the special partner, while in reality his only contribution was a stock of goods put off upon the partnership, as the equivalent of $5,000, though in reality not worth that sum, under and by virtue of a merely colorable sale thereof, from Merrifield to McDowell and from McDowell to the firm, then the exemption and immunity accorded by the law to special partners does not attach to Edward L. Merrifield, and the defense of a special partnership does not avail him.”
    The defendant, E. L. Merrifield, made due exceptions. The verdict was for the plaintiff.
    The court stayed the proceedings, and directed the exceptions to be heard in the first, instance at general term.

      Mathew Daly, attorney, and F. B. Coudert, of counsel, for plaintiff.

      Britton, Ely & Snell, attorneys, and Wm. A. Beach, of counsel, for defendants.
   By the Court.—Sedgwick, J.

Beyond controversy, the principle on which the learned judge placed his charge was sound. A special partner must contribute in actual cash payments, a specific sum, as capital, to the common stock. A general partner must make affidavit that the sum specified in the certificate to have been contributed by the special partner, has been actually and in good.faith paid in cash, and if any false statement be made in the affidavit, all the persons in the partnership are liable as general partners (1 Edmonds' R. S. pp. 716, 717, §§ 2, 7, 8).

If the sale in this case were merely colorable, were a device and cover for the putting in of merchandise as special capital in the stead of cash, then the defendant E. L. Merrifield did not actually and in good faith pay in cash. This would not be the fact, however, if this defendant was the real owner in his own right, and not for another, of the cash that was.paid in by him, for then all would be done towards the actual contribution of cash, that ever could be done. The question is, therefore, was there any testimony at all, upon which the jury could rightfully say, that the sale was a contrivance to put into the common stock, as special capital, goods in the place of cash. The plaintiff’s witness, the general partner,- McDowell, gave the only testimony on this point, excepting what was said in confirmation by the defendant as a witness. McDowell testified that the defendant said that the law would not permit him to use goods as special capital. Thereupon the defendant sold the goods to McDowell, and McDowell paid for them in cash. There seems to be no evidence, by which this transaction can be construed to have a character other than is given by the unambiguous meaning of the words of McDowell’s testimony. As before the sale McDowell had the cash, and could have, by paying it into the partnership, become a special partner, so could Merrifield, after the sale, upon becoming possessed of McDowell’s title to the money.

The learned counsel for the plaintiff urges that this simple view does not consider all the facts of the case. His general position is that there were facts on which the jury might say that the capital, although actually paid in by Merrifield, was not paid in in good faith, within the meaning of the statute. There are several suggestions as to the bad faith that might have been found by the jury. They are that the defendant wrongfully or in some way fraudulently induced McDowell to take the goods at a price greatly above their value; that the circumstances show that the real object, of the parties was not a purchase and sale of merchandise ; that the sale was only colorable, the real intent of the parties being to make E. L. Merrifield a special partner by his contribution of merchandise, through the hands of McDowell, while McDowell contributed his cash as general partner, through the hands of E. L. Merrifield.

It seems to me to be clear, that the purpose of the statute is satisfied to every intent, when the owner of money in fact pays it into the common stock under the forms of the statute, and it is thereafter, left to the risks of the business, with an accompanying intent on the part of the owner absolutely so to pay and so to leave the cash. The good faith required by the statute, exists when there are no intents and no purposes on the part of the special partner, of making the apparent payment and the apparent devotion of the special capital to the business any otherwise than real, actual or absolute.

Ho part of the statute regulates the means which may be used by the special partner to obtain the money which he makes capital. If they be fraudulent or unlawful, the remedy is not given by this statute, nor, while the other demands of the statute are answered, do those means injure the creditors or the other partners. The nature of the transaction between E. L. Merrifield and McDowell is immaterial to the issue of special partner or not, so long as it is a fact, that Merrifield became the owner of the money paid by McDowell. And when that fact is established, it cannot also be a fact, that the sale was colorable. It was a substantial sale, and not the appearance of a sale.

Indeed, the previous arrangement between these persons involved the object of enabling Merrifield to become a special partner in fact, and not merely in form or pretense. If it be supposed that McDowell was over-reached, the legal effect of his acts and of his not subsequently questioning the sale, was exactly the same as if the sale did not admit of being impeached.

It is certain that if the sale had not been made, defendant Merrifield could not have become a special partner by the use of his goods in specie, and the evidence shows that he knew it and did not attempt it. There is nothing evasive of the statute that by a transaction lawful as to third parties he became possessed of money which he could lawfully use under the statute.

There is, no doubt, a suspicion engendered (while the partnership articles called upon McDowell to pay in as his share of capital $5,000 in merchandise or in cash, wholly or partly), from his paying in as his share the merchandise sold to him, as of the value of $5,000, although he swears as a witness that it was worth much less. McDowell was not an adverse or unwilling witness. He did not intimate, in his testimony, that as a part of the circumstances connected with the sale, it was arranged or understood that he should pay as capital anything less than would satisfy the partnership articles. If this had been agreed, then it could not be maintained that McDowell did not know the value of the goods for which he paid over $5,000. There does remain a suspicion, if the testimony is to be believed, that the understanding was that the goods were to be deemed worth $5,000 when put in by McDowell as his capital, although they were worth much less. If it be granted that the jury so found upon sufficient evidence, still it cannot be seen that these depreciated goods were really a part of the special capital. They were McDowell’s, and not Merrifleld’s. The special partner had no individual interest based upon them. And, in fact, the only supposable wrong that might be connected with this matter would be, that it was meant to represent, in order to get credit, that McDowell had contributed stock that was equal to $5,000 in capital. We do not know from the testimony whether there was a misrepresentation of this kind. And it was not relevant to the question as to whether the statute had been broken; for, as we have seen, the statute means to secure only that there shad be a special capital of cash, and leaves creditors for protection in other regards to other statutes or the unwritten law. Whatever general wrongful purpose there might be, the defendant Merrifleld would only be liable, after a consummation of the wrong,. in an action specifically charging it. It would not necessarily involve proof of the breach of this statute. The wrong would be consistent with, and perhaps its perpetration might involve, a scrupulous observance of the statute.

I have unnecessarily gone beyond the scope of the exception to be considered. That was to the charge of the court, that if the sale was colorable, a contrivance to effect the semblance of a payment in money, while in reality his only contribution was a stock of goods, the defendant E. L. Merrifleld was a general partner. As I think the sale was actual and the title to the money actually passed as between the parties, the exception reserved for the decision of the general term, by the learned judge, should be sustained as to the defendant E. L. Merrifield. There is no reason for setting aside the verdict as to Silas Merrifield.

As to defendant Silas Merrifield the exceptions are overruled, and judgment ordered on the verdict, with costs. As to defendant E. L. Merrifield the exceptions are sustained, and the verdict against him set aside and new trial ordered, with costs to abide event.

Speir, J., concurred.