text:
    Katherine Palmer, Respondent, v. George Jones and Others, Appellants.

      Usury — compensation for a loan of credit — cancellation of an usurious instrument— equitable relief — no adequate remedy at law — pleading supplemented by proof.

    While it is competent for one to lend his credit to another and receive compensation therefor, yet this rule of law will afford no protection to persons who simply resort to this as a legal form to cover up a usurious transaction.

      While, under the provisions of the Code of Civil Procedure, the objection that a complaint does not state facts sufficient to constitute a cause of action is available at any stage of the case, yet where a cause of action is set forth and an answer thereto is interposed, the court is at liberty to afford such relief, legal or equitable, as upon the facts proved should be accorded.
    The complaint in an actios, in equity brought to obtain the cancellation of a chattel mortgage, on the ground that it was tainted with usury, alleged that the defendants had threatened to sell and remove the furniture of the plaintiff summarily under the chattel mortgage, “by reason whereof irreparable loss and damage will be sustained by the said plaintiff, the amount of which it is at present impossible definitely to compute.”
    No demurrer was interposed to the complaint, and an answer was served which contained no allegation that the plaintiff had an adequate remedy at law, and the objection that the complaint did not allege that the plaintiff had no adequate remedy at law was raised at the trial for the first time. The proof on the trial showed that the chattel mortgage acted as a bill of sale, and that an action in replevin would fail to repair the injury resulting from a seizure of the property thereunder, and the plaintiff was granted the relief sought.

      Held, that as the proof, supplementary to the complaint, disclosed a state of facts which called for the interposition of a court of equity to prevent a threatened injury to the plaintiff for which it was shown there was no adequate remedy at law, the court was not compelled to turn the plaintiff out of court on account of the alleged insufficiency of the complaint, but was authorized to grant such relief as the proof showed that the plaintiff was entitled to.
    Appeal by tbe defendants, George Jones and all other defendants (except tbe defendant Jas. 0. de La Mare), from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of the city and county of New York on tbe 5th day of January, 1893, upon tbe decision of the court rendered after a trial at the New York Special Term, directing the delivery by tbe defendants to tbe plaintiff:, of certain promissory notes and a chattel mortgage, and that tbe same be canceled.

      James G. de La Ma/re, for the appellants.

      John V. Bovmier, Jr., for tbe respondent.
   O’Brien, J.:

This suit was brought in equity for tbe cancellation of certain promissory notes made by plaintiff and indorsed by her in blank, secured by a chattel mortgage, and for tbe cancellation of said mortgage, upon tbe ground' tba-t both notes and mortgages were tainted with usury.

The evidence was sufficient to support the conclusions of the learned trial judge, that the whole scheme arranged by defendants, the Forgotsons, was resorted to as a cloak to evade the statute against usury. Nothing upon the facts need be added to the very satisfactory opinion of the court below. The claim that the extortionate amounts exacted from plaintiff were compensation for the guaranty given by defendants is effectually disposed of in such opinion. It is entirely competent for one to lend his credit to another and receive a compensation therefor, but this rule of law will afford no protection to persons who resort to a legal form with a view of covering up a usurious transaction.

The only serious questions urged relate to the sufficiency of the complaint as setting forth an equitable cause of action and the failure therein to allege that the plaintiff has no adequate remedy at law. The complaint does allege :

“ That the said chattel mortgage constitutes the vital part of the said loan and is tainted with the same fraud and illegality that affects the promissory notes given by plaintiff to defendants upon the same transaction, which said notes are still in the defendants’ possession.
That the said defendants have threatened to sell and remove the furniture of this plaintiff summarily under the aforesaid chattel mortgage, by reason whereof irreparable loss and damage will be sustained by the said plaintiff, the amount of which it is at present impossible definitely to compute.”

These allegations are claimed to be insufficient, and we are referred to Allerton v. Belden (49 N. Y. 373), which has been cited with approval in subsequent cases, and which holds that “ the mere fact that a party has made an agreement or given a security which is void for usury is not sufficient to entitle him to apply to a court of equity to have the contract annulled. The right to this relief exists only when, from the form of the security, the defense cannot be made available at law, or where the instrument sought to be voided is a cloud upon the title to land, or some other necessity for the interposition of a court of equity is shown.”

It will be noticed that in that case, as in others that might be referred to, the question was presented by a demurrer to the complaint. In this case, however, no demurrer was interposed, nor was there any allegation in the answer that the plaintiff had an adequate remedy at law. Instead, the defendant submitted himself to a court of equity, and for the first time availed himself of this objection by a motion at the opening of the case. The court having taken the motion under advisement, proceeded with the proof, and thereafter held, upon the complaint as supplemented by such proof, that it was evident that the plaintiff: had no adequate remedy at law, and that within the cases it was clear that, if the plaintiff: was obliged to resort to an action to replevy the property after it had been taken from her possession, this would have resulted in irreparable damage, which the court upon the evidence presented should not allow. As shown by the terms of the mortgage itself, it acted as a bill of sale, and under it the defendants could have entered into possession and forcibly taken from under plaintiff’s control the property covered by the chattel mortgage, leaving her thereafter to her remedy by an action of replevin, which, as clearly shown by the opinion of the court below, would fail to repair the injury thus resulting from a seizure of the property. In denying the motion, therefore, at the end of the proofs, the learned trial judge correctly held that, even though the complaint might have been insufficient, yet supplemented as it was by the evidence, to which the complaint might be made conformable, it was the duty of the court to proceed to give the plaintiff such relief as upon the evidence it was shown she was entitled to.

¥e see no reason to interfere with the conclusion thus reached. The defendant having interposed an answer and proceeded to trial without in any way raising this point or including it in any way by way of defense, it is doubtful if for the first time it could be raised when the trial was actually begun. In other words, where the answer does not allege that- the plaintiff has an adequate remedy at law, it is questionable whether this can be availed of upon the trial to defeat such relief as the plaintiff may show that she is entitled to. In Metropolitan El. Ry. v. Manhattan Ry. (14 Abb. N. C. 208), it is said by the learned judge writing the opinion in that case: “ Even if I, however, could find that there was no ground for equitable relief, yet if the facts proven showed that the party was entitled to legal relief, the bill could not be dismissed.” In the reporter’s notes to this case will be found several cases that fully sustain this view. Thus in Van Voorhis v. Kelly (65 How. Pr. 300), it was held that where the plaintiff was entitled to some equitable relief, the action must be retained, for that purpose. And again in the reporter’s note, at page 104, it is said: “ If the complaint states facts constituting a cause of action, and defendant answers, the court should afford the appropriate relief, whether the frame of the complaint be legal or equitable ” — citing 12 N. Y. 336, and other cases.

While, therefore, under the provisions of the Code, the objection that a complaint does not state facts sufficient to constitute a cause of action is available at any stage, yet where a cause of action is set forth and an answer thereto is interposed, the court is at liberty to afford such relief, legal or equitable, as upon the facts proved should be accorded.

Here the complaint alleged the making of the chattel mortgage and promissory notes, and that the defendants threatened to sell and remove the furniture of the plaintiff summarily, and that by reason thereof plaintiff would sustain irreparable loss and damage. While it is true the exact character of the mortgage and its terms and ■conditions to support this statement are not set forth, we think this was sufficient to permit the court to proceed, and on proof being presented showing that the mortgage itself was jrractically a bill of sale under which the defendants could summarily remove the property, a case was made out which conferred upon a court of equity the right to interpose to prevent the threatened injury, and it could, as suggested by the trial judge, conform the pleadings to such proof. Having seen therefrom that the plaintiff had no adequate remedy at law, the judge was not obliged, either at the beginning of the trial or at the close of the testimony, the question not being raised by the answer, to turn the plaintiff out of court.

We are of opinion, therefore, that the case was correctly disposed of, and that the judgment should be affirmed, with costs and disbursements.

Yan Brunt, P. J., and Ingraham, J., concurred.

Judgment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Mann’s Boudoir Car Company, Respondent, v. Gilbert Car Manufacturing Company, Appellant.

      Payment of a royalty for the use of a patent — an agreement made with a patentee who has assigned the patent inures to the owner of the patent,

      When one uses a patent, under an agreement made with the patentee to pay for the use thereof certain sums, mentioned in a portion of the correspondence constituting the agreement as “royalties” and “commissions,” but which terms are, it appears, used synonymously, so that the agreement is in fact an entire contract for the payment of royalties, and such agreement is made under the mutual-mistaken assumption that the patentee is entitled' to enter into the agreement on his own account, whereas it appears that the right to royalties belonged at the time to a third party, to whom the patent had been assigned by the patentee, the contract for the payment of the royalties for the use of the patent inures to the owner of the patent, and he, and not the patentee, will be entitled to receive from the user of the patent the whole sum agreed to be paid for its use.
    Appeal by the defendant, the Gilbert Car Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 6th day of April, 1892, upon the report of a referee.

      Charles E. Patterson, for the appellant.

      G. W. Cotterill, for the respondent.
   O’Brien, J.:

The single question involved is whether the defendant should pay to the plaintiff, or to William D. Mann, five per cent on the contract pnce as royalty for using the plaintiff’s patents in the manufacture of four sleeping cars sent to Australia.

It was conceded on the trial that Mann was originally the owner of the letters patent covering the inventions used by the defendant in the manufacture of four sleeping cars, and that the said letters patent were assigned to plaintiff prior to the making of the contract with defendant. And were it not for a doubt which evidently existed in the mind of Mann as to the extent and character of his assignments to the plaintiff, no controversy could have arisen. The fact, however, that Mann assumed that, although he had assigned his letters patent covering the inventions which the defendant used, and for which it agreed to pay a compensation, he still retained his ownership with respect to cars to be manufactured for exj>ort, for which the cars manufactured by defendant were intended, introduced in the relations between the parties confusion and doubt, which has necessitated this action. It is evident from an examination of the correspondence between the parties, beginning with the letter from Mann to the defendant, under date of July 3, 1885, that Mann, though known by the defendant to be the president of the plaintiff company, acted as though the contract he was about to make with the defendant company ivas on his behalf, and for his own benefit; for that letter begins by saying: I have an opportunity to build four cars for Australia. * * * I propose to furnish the following articles myself; ” and it closes as follows: “ If so will you quote me a price, I furnishing the materials as above.” In answer to this letter, under date of July sixth, and particularly in the letter of July seventh, which was the letter containing the agreement on the part of the defendant, the defendant wrote under the impression that it was dealing with Mann personally, for throughout the latter letter it is the individual and not the president of the company who is referred to and spoken of by defendant.

¥e think that this error into which seemingly both Mann and the defendant had fallen, is important and material as bearing upon the question whether the contract made between the parties involved the payment of royalties to one, and as separate and distinguished therefrom, a commission to another. It has also a bearing upon the weight to be attached to the expression in that letter, upon which so much stress is placed by the defendant as supporting the view of a divisible obligation, viz., “ and to this we will add to contract price a commission of five per cent to you.” Keeping in mind the language quoted from Mann’s letter of July third, what the defendant proposed to do and for whom, is thus expressed in the answer thereto of July seventh, already referred to :

“ In the first place we would propose furnishing the materials mentioned in yours of 3rd inst. as the materials you would furnish, you giving us descriptions of the kinds, and such other information as you have at command. In other words we to build and furnish the cars complete for a round sum, and in the second place, we would suggest your giving us your influence with Mr. Evans to secure this order, and in the event of our securing the same, we would pay you royalty as per yóur letter of September, 1884, giving us permit to build for export, to wit: One thousand dollars per car for royalty on sleeping car patents, and two hundred and fifty dollars for patent ventilation, making twelve 'hundred and fifty dollars per car, and to this we will add to contract price a commission of five per cent to you.”

"We think that the claim made by Mann as to not having assigned his rights with respect to cars intended for export, and the subsequent abandonment of such position, together with the entire correspondence between, the parties, show that when the contract was made between them it was a single and indivisible contract and agreement made by the defendant, under which it was to pay in the way of royalty and commission the amounts as specified in the letter of July seventh; that as correctly held by the referee, these words, “royalty” and “commission” were used interchangeably and as synonymous by both the parties throughout their correspondence, and that the claim now advanced, that the royalties were to go to plaintiff and a commission as separate and distinct therefrom to Mann, is purely an afterthought, resorted to, no doubt, for the very proper purpose of assisting the defendant to collect in part, at least, the sum which was due it from Mann. This view is enforced by the fact that, although the matter of what was to be paid by the defendant, namely, $5,000 and five per cent, was always referred to and spoken of as royalties, it was not until the 4th of January, 1886, that in inclosing the note for $5,000, the defendant for the first time separated the $5,000 claim, which it conceded belonged to plaintiff, and the five per cent, which is thus referred to in the letter of that date: “ Our counsel advises us as we have judgment against Col. Mann for claims greater than the five per cent commission at the time he assigned his rights to your company, that,” etc. Thus the position which, throughout the relations between the parties, the defendant had taken of regarding the sums to be paid as payable to the same person under one indivisible contract, was continued down to December 19, 1885, by defendant writing: “¥e have no hesitation in saying we will pay your company the royalties, which we much prefer doing.” During all this time there was not the slightest intimation or suggestion that there was any question with regard to the five per cent, especially as an independent matter, and it would serve no useful purpose to take extracts from the letters written by defendant to show how consistent up to January, 1886, had been the latter’s position in regarding it as a single sum, whether spoken of as royalty or commission, and payable to a single person.

As we have said, the whole trouble arose out of the mistake into which Mann had fallen, of regarding himself as the principal in the transaction in dealing with the defendant. The evidence shows that long prior to the contract the defendant knew that Mann was the president .of the plaintiff company, and Mann himself testified that the assignments of the patents had been shown to Mr. Gilbert, one of the officers of the defendant company. This mistake, however, was finally straightened out, as shown by the correspondence with and notification to the defendant, by the withdrawal by Mann from his untenable legal position, and by the consent of the person to whom Mann had attempted to make an assignment of the use of the patents for export trade, to the payment to plaintiff. The position, therefore, as shown by the entire transactions and correspondence was, that the defendant made a contract originally with Mann for the payment to him by way of royalty for the use of the patents the amounts specified in the letter of July seventh, and that both Mann and the defendant subsequently discovered that the fights in and to this contract were justly and legally claimed as belonging to plaintiff.

Upon well-settled principles of law, it being conceded by defendant itself that plaintiff was entitled to whatever was.due by way of royalties, we fail to see why the plaintiff should not recover as held by the referee, in addition to the other amounts, the five per cent on the contract price, which was referred to in the letter of July seventh as a commission. It is evident that the entire amount thei’e offered to be paid was intended to go to Mr. Mann by way of royalty for the use of these patents by the defendant; and that this is so is evidenced by Mr. Mann’s own letter in reply, stating that he quoted the same terms to other parties, which included the five per cent on the contract price as sued for here, and which was therein spoken of and designated by Mr. Mann as a royalty to be paid for the use of such patents.' That the defendant did not intend to pay a royalty to plaintiff and in addition a commission to Mr. Mann separate and distinct therefrom, as contended upon the trial and this appeal, is conclusively shown by the testimony, and were it not for the language used, “ a commission of five per cent to you,” there would be no room for argument. But with this in the case all the other facts appearing, and more particularly the fact that the defendant did not agree or intend to pay a royalty to anybody but Mann, whom defendant assumed owned the patent rights, are consistent only with an entire contract, under which the defendant was to pay to whoever was entitled thereto royalties to be made up in the manner indicated in the letter of July seventh.

While, therefore, we differ with the view of the referee that the commissions in question were originally agreed to be paid the plaintiff, yet, we think, that the contract made with Mann inured by the operation of law to the benefit, of the plaintiff. Mr. Mann was assuming to act for himself, and the defendant was treating with him as the principal. But does it not become evident that where it turns out that both are mistaken, and where, as here, a contract is made with respect to the use of patents which were then owned by the plaintiff, that the defendant, after using the same, would be obliged to pay to the owner thereof, when, as here, it is evident who such owner is, the price agreed to be paid for the use of the inventions covered by such letters patent ? .

We think that the conclusion of the referee was right, and that the judgment should be affirmed, with costs and disbursements.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs and. disbursements.


text:
    Henri Schorestene, Plaintiff, v. Adrian Iselin, Defendant.

      Offer to exchange stock of a railroad company formed py reorganization, for stock of the original company —failure to comply with the conditions of the offer.

    Iselin, who had purchased the property of a railroad company on foreclosure, published an offer to exchange stock in a new company which was to be organized, for such stock in the old company as should be deposited, before a date named, with a transfer and power of attorney signed in blank, in a certain trust company, which would issue receipts therefor. Schorestene, who had a certificate for stock in the old company in the name of James Champ, upon which there was a transfer and power of attorney in blank purporting to be signed by Champ, presented it to the trust company, before the expiration of the time stated in Iselin’s offer, but the trust company declined to take it, saying it was not good,
    Schorestene did nothing more until after the expiration of the time mentioned in the offer, and then brought an action against Iselin to recover damages for the breach of an express contract which he claimed had been created by Iselin’s offer and by his acts.

      Held, that the action was not maintainable;
    That a contract with Iselin could be created only by a compliance with the terms of his offer, by depositing stock with the trust company and receiving its receipt therefor;
    That the plaintiff’s inability to comprehend the objection of the trust company to receiving the certificate without some proof of the genuineness of the signature of Champ on the back of it, which might have been obviated, did not excuse his laches.

    Motion by tbe plaintiff, Henri Schorestene, for a new trial, upon exceptions directed to be heard at the General Term in the first instance, by an order made at the New York Circuit on the llth day of May, 1891, upon the dismissal of the complaint.

      J. Vcm V. Olcott, for the plaintiff.

      Wheeler II. Peohham, for the defendant.
   O’Brien, J.:

On a trial at the close of plaintiff’s case, the complaint was dismissed and certain exceptions of the plaintiff ordered to be heard in the first instance at the General Term.

Plaintiff sued for a breach of contract that he alleges was made between him and defendant.

Defendant, on October 31,1885, advertised an offer in the following language:

To the stockholders of the Rochester <md Pittsburg Railroad Gouypcmy:
“At the recent foreclosure sale, I purchased the property of the Bochester & Pittsburg Bailroad Company, covered by its second, mortgage. I have organized two companies, one in New York and one in Pennsylvania, and they are about to be consolidated. To such stockholders of the Bochester & Pittsburg Bailroad Company as shall on or before the 20th day of November, 1885, deposit their certificates of stock, with transfer and power of attorney to transieron the books signed in blank, with the Union Trust Company of New York, I will, upon the organization of such consolidated company, give one share of the common stock of such consolidated company for every four shares of the stock of said Bochester & Pittsburg Bailroad Company so deposited, said Trust Company will give its receipt for stock so deposited as being deposited pursuant to this offer; and to be delivered to me, on receipt from me, for the depositor, of one share of such common stock of such new consolidated company for every four shares of Bochester & Pittsburg-Bailroad Company stock so deposited. In case if the stock of such consolidated company is not ready for delivery within forty days after the organization thereof, said depositors to have the right to-withdraw the stock so deposited by them.
“ The stock of such consolidated company will be six millions of dollars preferred six per cent, noncumulative stock, and six millions-of dollars common stock.
“ This offer is limited strictly to the stock deposited on or before the 20th November, 1885.
“ The Union Trust Company will be prepared to receive deposits-of stock on or after Nov. 6.
Oct. 31, 1885. ADBIAN ISELIN.”

Defendant, on December 14, 1885, advertised a further offer in the following language:

“New York, December léth, 1885.
To the Stockholders of the Rochester amd Pittsburg Railroad Gouypcmy:
“ A considerable number of Bochester and Pittsburg stockholders Having stated that they had not seen my circular on the 31st October, and have not, therefore, deposited their stock in accordance with its conditions, I have decided to give all outstanding stockholders another opportunity to deposit their stock with the Union Trust Company, and receive therefor receipts entitling them to one share of stock of the consolidated reorganized company for every four shares deposited by them.
££ This offer is limited strictly to the stock deposited on or before the 31st December, 1885.
“ (Signed.) ADRIAN ISELIN.”

The plaintiff, as shown by the testimony; never saw either of these notices until after December 31, 1885, but as the result of information received, either by himself personally, or by his brother from a broker, the brother, prior to December 31, 1885, took a certificate of stock for 100 shares, which was in the name of one James Champ, and upon the back of which was indorsed a transfer and power in .blank purporting to be signed by James Champ, to the office of the defendant, and was there referred to the trust company. What then occurred at the trust company is thus detailed by the plaintiff’s brother:

££ I at once went, in accordance with this direction, to the office of the Union Trust Company and presented the same certificate to a clerk or employee at a window, made the same request, saying that I had been directed there by the office of Adrian Iselin to make the exchange in question. I handed the certificate through the window to this clerk, who took it, looked at it, went off with it to some other part of the office, and returned in a few minutes and pushed the certificate back to me through the window with the response that it was no good. To the best of my remembrance the words, £ This is no good,’ were the words employed. I asked him to explain why, but he gave no intelligible explanation ; to the best of my remembrance merely stated that he had nothing to say about it; it was no good. I thereupon took said certificate, came back to our office and locked it up in the safe.”

This visit to the trust company he fixes at some time between the 10th and 20th of December, 1885 ; and from that time nothing was done by either the plaintiff or his brother until 1886, when, through the intervention of a friend and by letters directed personally to the defendant, the plaintiff sought to avail himself of the terms of the offer, and his efforts having failed, this suit was commenced.

The plaintiff’s theory is, that the offer presented by the published notices made a contract between the parties, and that for a breach thereof the defendant was liable in damages. Upon the theory, however, that the offer of the defendant and a strict compliance therewith by any stockholder would constitute a contract — which is doubtful — we fail, upon the testimony, to find evidence that the plaintiff complied with the terms of such offer. The offer was to give one share of the new stock for four shares of the old to such stockholders as should before the date fixed in the notice deposit their certificates of stock, with transfer and power of attorney, with the Union Trust Company of New York, for which the latter was to issue its receipts. The plaintiff • failed to make the deposit within the time fixed ; and the only justification for laches in this regard was his brother’s inability to apprehend the objection of the trust company to receiving the certificate without some proof of the genuineness of the signature of Champ on the back of it. This objection of the trust company was capable of being intelligently communicated, and could then have been obviated by having the certificate transferred on the books of the company in plaintiff’s own name, indorsing the same in blank and depositing it with the trust company. Instead, however, of doing this, or in fact of doing anything, the plaintiff allowed the time to go by, and, upon the theory that the defendant in some way was responsible for the action of the trust company, brought this suit to recover damages upon an express agreement.

From the reference already made to the testimony, we think that the error in this contention is manifest, for whatever grievance the plaintiff may have against the trust.company, we fail to see how the defendant is to be held responsible therefor. The defendant’s offer was to exchange the stock of the reorganized company for such stock as was deposited by holders, and for which they were to -receive the receipts of the trust company. In the very nature of things it would have been impossible for the defendant to ascertain how many stockholders had deposited their stock or what amount of Stock had been deposited, except from evidence furnished by the trustee, and while it is true that to some extent the trust company became the agent of the defendant, this upon the facts here appearing, did not subject the defendant to liability in favor of the plaintiff. Undoubtedly had the offer been complied with and the stock deposited with the trust company, the latter, and perhaps the stockholders themselves, would have an action against the defendant. But where, as here, the stock was never deposited, and the omission so to deposit was due to the plaintiff’s misapprehension of the exact terms of the offer and a failure to comply therewith, no contract was entered into between the parties, and no resultant action for damages would flow.

There are subsidiary questions presented by plaintiff’s exceptions, but in view of the conclusion we have reached with respect to the main question, as to whether a contract arose out of the offer - made by the defendant, and the subsequent conduct of the plaintiff, these need not be noticed. We think that the plaintiff could not acquire any right, either against the trust company or the defendant, unless by a precise acceptance of the offer within the time limited, and his failure to accept the terms and comply with the conditions of the offer — whether this was the result of misapprehension, inadvertence or neglect on his part — did not result in the meeting of the minds of the parties upon a definite proposition — did not result in the making of a contract between them — and gave no right to an action for damages to the plaintiff upon the theory of a breach of an express contract.

We think, therefore, that the exceptions should be overruled, and that judgment should be ordered upon the dismissal of the complaint in the court bélow, with costs and disbursements in the court below and upon this application.

Yan Brunt, P. J., and Follett, J., concurred.

Exceptions overruled and judgment.ordered upon the dismissal of the complaint in the court below, with costs and disbursements in the. court below and upon this application.


author: Follett, J.:

text:
    August Alberts, Appellant, v. Semon Bache and Others, Respondents.

      Master and servant — action for a personal injury — nominal damages — not a ground of reversal where defendant was negligent.

    In an action brought by an employee against his employer to recover damages fctr a personal injury alleged to have been caused by-the employei’s negligence, a judgment entered on a verdict for nominal damages will not be reversed on the ground of the inadequacy of the damages, where, although the damages would be inadequate if the plaintiff was entitled to recover, it appears from the plaintiff's evidence that the defendant was not negligent and that the accident was caused solely by the negligence of the plaintiff and of a co-employee.
    Appeal by the plaintiff, August Alberts, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2d day of June, 1892, and from an order denying the plaintiff’s motion for a new trial, made upon the minutes, entered in said clerk’s office on the 7th day of December, 1892.
    The case was tried at the New York Circuit and resulted in a verdict for the plaintiff for six cents- damages, which entitled the •defendants to costs. Judgment was accordingly entered in favor of the defendants for their taxed costs and disbursements, less six cents, the amount of the verdict. From this judgment the plaintiff ■appealed.

      August P. Wagner, for the appellant.

      Sol Jfohn, for the respondents.
   Follett, J.:

This action was brought by an employee against his employers to recover damages for a personal injury alleged to have been caused ■by their negligence. The defendants were cutters of and dealers in •glass, having a factory at 443 and 453 Greenwich street, New York. The business of the defendants was divided into three departments — the window glass department, the plate glass department and the •silvered French plate department. A foreman was employed to supervise the operations of each department. About 306 persons were employed in the factory. At the date of the accident, February 7, 1885, the plaintiff had been employed in the window glass department for about three years. His principal duties were to cut glass, but occasionally he assisted in removing glass packed in boxes to and from the factory. On the occasion in question a large number of boxes of glass were standing on their ends on the sidewalk in front of the factory. The boxes did not stand squarely on their ends, but inclined from the street and towards the factory. It became necessary to load part of these boxep on trucks for shipment Gorman, the foreman, was engaged in overseeing the shipment. Bergen, a porter, was engaged in removing the boxes. The foreman, needing another man to assist in the work, asked the defendant to send some person to assist. The plaintiff was sent, and assisted Bergen in removing boxes from the walk to tlie truck. The average weight of the boxes was from 150 to 160 pounds. A particular box, standing behind three or four boxes, was required to fill an order. To get this it was necessary to move forward three or four boxes standing in front of the one they wished to reach. This was not an unusual operation in the business and was accomplished in one of two ways, as suited the convenience of the workmen. Sometimes the outer box was turned so as to stand edgewise to the boxes in the rear, so as to support those which were tipped or moved forward, in order to gain access to the box required. At other times a laborer would stand in front of the boxes and pull them forward on to his shoulder, holding them in that position until the box sought was removed, and then tip them back into place. The plaintiff and Bergen were engaged in removing a box which was fourth or fifth in a row. Instead of supporting the boxes in the mode first described, Bergen, who was called by the plaintiff, testified: I told plaintiff to hold up these boxes until I got out a certain box I wanted.

Q. Wouldn’t each box stand on its end when it was lifted up in a perpendicular position ? A. No.

Q. How wide were they at the bottom ? A. Three or four inches.

“ Q.. And they had to be supported or else they would turn over ? A. Yes.

“ Q. You lifted them up one at a time? A. Yes, one at a time. *

“ Q. And he (plaintiff) stood in front, and as you lifted up the box he held it? A. Yes.

“ Q. And you continued it until you had lifted up three or four, and he was standing there holding them up? A.- Yes, and then they overbalanced him and they came down upon him.”

The plaintiff testified that the foreman did not tell him how to take out the box. The foreman, who was called by the plaintiff, testified that he directed the plaintiff to assist Bergen in getting the cases out, but did not tell him to select one from .among the number that fell. 'He also testified that he had authority to direct how the men in the window glass department should be employed, and that he could have ordered as many men to do that work as he thought necessary, and that there were twenty or thirty men then working in his department. "Whether the accident was caused by the boxes being tipped too far forward, so as to bring great weight upon the plaintiff, does not clearly appear. However, the evidence tends to show that this was the cause of the accident. The theory upon which the plaintiff sought to recover was that the defendants did not furnish a sufficient number of men to do the work. Assuming that more ^ men' should have been employed in removing this particular box, it was the fault of the foreman, and not the defendants. The foreman testified that, at the time of the accident, five or six men were at work on the sidewalk handling boxes. The plaintiff asked for no assistance, nor did Bergen, to handle this particular box. So it appears from the evidence introduced on behalf of the plaintiff that the defendants did furnish a sufficient force to do" the work in which the plaintiff was engaged. The learned counsel for the plaintiff also insists that the plaintiff was entitled to recover because he was directed to do work that was dangerous, and of a kind that he was unaccustomed to perform The plaintiff testified that he had been a glass cutter for nine years, and could tell the weight of plates of glass; that he had packed it and handled it when in boxes.

The plaintiff had a verdict for six cents, and his counsel insists that the damages awarded were inadequate, which is the only ground upon which a reversal of the judgment is asked. The damages are inadequate if the plaintiff was entitled to recover, but we think that the evidence introduced in behalf of the plaintiff shows that the defendants were not in any way negligent, and that the accident was caused solely by tbe negligence of the plaintiff and his co-employee, Bergen. This case has been twice tried. At the close of the first trial, the plaintiff was nonsuited, but a new trial was granted (32 N. Y. St. Repr. 1014), on the ground that whether the defendants were negligent in not employing a sufficient number of men to do this work should have been submitted to the jury, and, also, that whether plaintiff had knowledge of the risks of the service in which he was engaged should have been submitted to the jury. The evidence on the trial under review seems to have been quite different from the evidence on the first trial, and we think we have shown that from the plaintiff’s own evidence that the defendants were not negligent in either respect.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Barrett, J.:

text:
    Carroll Whitaker, Respondent, v. Heman L. White and Another, Appellants.

      Letters of a pwrty as evidence in his favor — entries of engagements in a lawyer’s diaA'y as evidence of where he was on certain days.

    On the trial of an action brought against a firm of stockbrokers, to recover a balance claimed by a customer to be due him on certain purchases and sales of stock, letters written by the plaintiff to the defendants were admitted in evidence on behalf of the plaintiff over objections that tliej’' were immaterial, were not evidence as against the defendants, and contained declarations in the plaintiff’s favor.

      B.eld, that the letters were properly admitted, since they related to the matter in controversy and were parts of a continuous correspondence between the parties, and were either answers to communications from the defendants or were letters which called for an answer.
    The plaintiff, who was a lawyer, was permitted to give in evidence upon the disputed question as to the date of an interview at the defendants’ office, two entries made in his lawyer’s diary of the time and place of engagements for the days in question, not connected with the subject in controversy, with a view of showing where he was on those days.

      Beld, that these entries would doubtless have been proper to refresh the plaintiff’s recollection as to the time and place of such engagements, but if they failed to do this, they were not admissible as original entries, for they were irrelevant to the real issue;

      That an entry to tliat effect was clearly inadmissible in a case in which the plaintiff was able to testify to the interview at the defendants’ office on that date without the aid of the memorandum;
    That both entries were open to the objection that the plaintiff did not testify to the correctness of either when made, which was indispensable;
    And that the error in admitting the entries was prejudicial to the defendants and called for a reversal.
    Appeal by the defendants, Heman L. White and George W. Bartholomew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 4th day of March, 1892, upon a verdict rendered at the New York Circuit.
    The complaint alleged that on or about November 9,1887, defendants, as stockbrokers, doing business under the name of A. H. Brown & Co., sold for and on account of the plaintiff 300 shares of the stock of the Texas and Pacific Railroad Company, and received as the proceeds of such sale $7,350. It further alleged that the plaintiff was at the time of the sale indebted to the defendants for and on account of the purchase of the said stock in the sum of $5,725. Judgment was asked for the difference, $1,625, with interest.
    The answer admitted the sale of this stock and alleged that the indebtedness which the defendants were entitled to offset against the proceeds of the sale of said stock was greater than that alleged in the complaint.
    For a further defense and as a counterclaim, the answer alleged that the defendants had also purchased and sold for and on account of the plaintiff 100 shares of the stock of the Louisville, New Albany and Chicago Railroad Company, and that upon the entire account with the plaintiff, which should embrace these two transactions, the balance was in defendants’ favor to the amount of $1,471.95, and an affirmative judgment for that sum was asked.
    The trial resulted in a verdict for the plaintiff for $2,043.45.

      George JP. Gordel, for the appellants.

      Dwrnin & Hendrick, for the respondent.
   Barrett, J.:

The contest here was mainly upon the defendants’ counterclaim. The defendants' were stockbrokers, and their counterclaim was for a loss upon the purchase — alleged to have been made on plaintiff’s account — of 100 snares of the capital stock of the Louisville, New Albany and Chicago railroad.

The plaintiff denied the defendants’ authority to make this purchase on his account, and the jury, by their verdict, have sustained his denial.

No order was entered denying the defendants’ motion for a new trial, and the appeal is solely from the judgment. The verdict is, therefore, conclusive, and we are limited to a review of the exceptions taken upon the trial.' There were no exceptions to the judge’s charge, and but two cpiestions of evidence -are presented by the record. The defendants excepted to the admission, ov^r their objection, of certain letters written to them by the plaintiff. They also excepted to the admission of certain memoranda made by the plaintiff in his law diary.

As to the letters, the defendants now contend that they should not have been admitted at all until after the plaintiff had rested. They bore solely upon the counterclaim, and the contention is that the plaintiff had no right, while upon the stand proving his case, thus to forestall the defendants’ case. We find, however, no objection in the record to the procedure upon the trial nor to the order of proof. The objection was to the materiality of the letters, and, as to one of them, that it contained declarations in the plaintiff’s favor. These objections alone can now be considered, especially as we are not reviewing an order denying a motion for a new trial.

The exceptions as to two of the letters in question are clearly untenable. One was objected to as immaterial and “ as not evidence against the defendants.” They were, however, certainly material, being in answer to letters from the defendants asking for a deposit of money to secure them against depreciation of the plain tiff’s stocks. To the first of these letters the plaintiff replied that he did not understand their letters.

“ What is the trouble,” he says. “ I can’t understand why my account is not good at present T. & P. prices (meaning Texas & Pacific). Why am I bound to deposit ? ”

This letter ignored the Louisville, New Albany and Chicago transaction and thus gave the defendants notice that the plaintiff did not consider that the stock of that railroad was in his account. It certainly called for an answer indicating, at least, that the dejaosit was required because of the depreciation in the Louisville, New Albany and Chicago railroad stock, as well as in the Texas and Pacific.

The second of these letters bore most directly upon the issue. The defendants had written to the plaintiff as fellows :

“ Texas Pacific is 21-J- to-day, and L. N. A. & C. (meaning Louisville, New Albany and Chicago) say 30 to 35, making 3 to 4,000 due, besides putting up margin.” To this the plaintiff, in the second letter, replied:
You shoidd not haw any I. N. A. cb G. stock charged, to me on your books. I will take it for you if I can raise the money and own it, otherwise you must look after it yourself.”

This correspondence was certainly material, and indeed important, on the question of the defendants’ authority to purchase the Louisville, New Albany and Chicago stock for the plaintiff.

A more serious question is presented by the exception with regard to the third letter. That was objected to as “ immaterial and as containing declarations in the plaintiff’s favor.” This letter is certainly open to the latter criticism. And if, as contended by the appellant, it was not in response to anyT letter written by them, but was “ wholly isolated from the correspondence between the parties,” we would have deemed it inadmissible, and would then have considered the further question as to whether its contents were, under all the circumstances, sufficiently prejudicial to the defendants to require a reversal of the judgment. But this letter was not an isolated statement simply giving the plaintiff’s side of the existing dispute. It was written on the seventh of November, and was, in fact, an answer to the defendants’ telegram of the same date and to their letter of the fourth. It is true that the plaintiff testified that he did not think lie made any answer to this letter of the fourth, but his letter of the seventh — under consideration — bears internal evidence that it was an answer to both the letter of the fourth and the telegram of the seventh. The letter of the fourth is a distinct notice that on the ninth the defendants would sell at auction (because of the plaintiff’s failure to make his account good, with ten per cent margin) the Louisville, New Albany and Chicago stock, as well as the Texas and Pacific. There is a postscript to this letter in the following words:

“ If you would give us an order to sell tlie stocks at the N. Y. Stock Exchange previous to the date mentioned, we would much prefer that course.”

This postscript is directly answered by the plaintiff’s letter of the seventh thus:

“ If you wish an order, as you term it, to sell my 300 shares of Texas Pacific, I will give it, and do give it.”

He then refers to the Louisville, New Albany and Chicago, and refuses to give the order as to that stock, for the reason (we quote) “ That I desire to contest that purchase and sale (at its present price) if it is intended to charge to me, in a court of law.”

In their telegram of the seventh, the defendants informed the plaintiff that White (the member of their firm with whom Whitaker had mainly dealt) could not meet him as he, plaintiff, had requested. In the letter of the seventh the plaintiff says :

“ I regret that Mr. 'White would not meet me. I presume that he feels embarrassed over the L. N. A. & C. matter, &c.”

Thus plainly referring to the telegram of the sanie date.

The letter of the seventh was, therefore, an answer to the defendants’ previous letter and telegram. It was also part of a correspondence which did not terminate until the following December. Although the defendant did not apparently answer the letter in question, it certainly called for an answer, and it seems to have had the effect of postponing the threatened sale on the ninth, of the Louisville, New Albany and Chicago stock. It wa§ followed, too, on the seventeenth of the same month by a stronger, though briefer, letter, in which the plaintiff declares that he has been most shamefully treated ; and to this last letter the defendants replied, defending themselves against the accusation.

We think, therefore, that the letter of the sevaith was properly admitted : first, as part of a continuous correspondence between the parties ; second, as an answer to the defendants’ letter and telegram; and, third, as a letter calling, under the circumstances, for an answer.

We think, however, that the exceptions with regard to the entries in the plaintiff’s diary were well taken. The defendants claimed that the order to purchase the Louisville, New Albany and Chicago stock was given by the plaintiff, in their office in New York, on the 11th of'June, 1887. The plaintiff denied this, and claimed that the only conversation which he had with the defendants on the subject of the purchase of this stock was in their office on the 15th of June,, 1887. And he was supported in this claim by the witness Roosa. The object with which the first of these entries was offered was to-prove that the plaintiff was in Saugerties and Kingston on the eleventh of June, and could not, therefore, have been in the defendants’ office upon that day. The object with which the second entry was offered was to support the testimony that the plaintiff was in New York with Roosa on the fifteenth of June.

These entries were, therefore, exceedingly important, and, in view* of the crucial conflict between the parties as to dates, may well have turned the scale. We think they were inadmissible under well-settled rules. They did not purport to be entries with regard to any fact in issue. They were simply entries, made in the plaintiff’s, law diary prior to the eleventh and fifteenth days of June, indicating future engagements on the dates in question. They would doubtless have been proper to refresh the plaintiff’s recollection as to the time and place of such engagements, but if they failed to do this, they were not admissible as original entries, for they were irrelevant to the real issue. As to the fifteenth of June, the entry was clearly inadmissible, lor the plaintiff was well able to testify to the interview at the defendants’ office on that date without the aid of the memorandum. (The National Ulster County Bank v. Madden, 114 N. Y. 280 ; Marcly v. Shults, 29 id. 346 ; Guy v. Mead, 22 id. 462.) And further, the plaintiff did not testify to the correctness of either entry, when made,. This was indispensable. (Same cases.)

It is contended that, even it inadmissible, these entries could not have prejudiced the defendants, as the plaintiff had already testified without objection to their terms. We find, however, that the plaintiff did not testify to the terms of the entry of June fifteenth, and that his testimony as to that oi June eleventh was an inaccurate conclusion drawn from what really appeared in the book. lie said that the latter entry showed that he was m Saugerties and Kingston on the eleventh of June, whereas it really showed nothing more than that on a previous day he had agreed to be there. He gave no testimony, however, accurate or inaccurate, as to the terms of the entry of June fifteenth, and the admission of that entry was unquestionably prejudicial.

The judgment should, therefore, be reversed and a new trial ordered, vith costs to abide the event.

Van Brunt, P. J., and Eollett, J., concurred.

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


author: Van Brunt, P. J.:

text:
    The Mercantile Trust Company, as Trustee, Respondent, v. The Atlantic Trust Company, Impleaded, etc., Appellant.

      Rights of a pledgee, as against a depositary of the pledge, not affected by a elumge in the terms of the pledge.

    When a pledgees in the possession of a depositary for the pledgee, the pledgee, having no notice of any other rights on the part of the depositary, does not lose his lien upon the pledge and his right to receive it from the depositary, by reason of the fact that the pledgor and pledgee have made alterations in the terms of the pledge.
    The complaint of the Mercantile' Trust Company alleged that the United Electric Traction .Company executed to the plaintiff a guaranty for the payment of certain bonds, whereby the traction company agreed not to incumber its property until the guaranteed bonds were paid, and that at the same time there were deposited with the defendant, the Atlantic Trust Company, certain shares of stock as security for the performance of the guaranty ; that the defendant, the Atlantic Trust Company, indorsed upon the guaranty its certificate that the stock was deposited with it as security for the performance of the guaranty ; that default had been made on the guaranteed bonds, and demanded that the defendant deliver up the stock so deposited with it.
    The defendant, the Atlantic Trust Company, set up in its answer, as a defense in avoidance, that it had made the certificate of the deposit of the stock, and had made advances to the traction company on the stock, on the faith of the agreement of the traction company in its guaranty to the plaintiff not to incumber its property, and that, contrary to that agreement, and without the consent of the defendant, the traction company had mortgaged certain of its property to the plaintiff.
    It was not alleged that notice of any claim upon the stock had been given by the defendant to the plaintiff. ‘

      Held, on demurrer, that the facts set up in the answer in 'avoidance did not constitute a defense.
    Appeal by the defendant, the Atlantic Trust Company, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 23d day of March, 1893, upon a decision rendered at the New York Special Term sustaining the plaintiff’s demurrer to one of the defenses set up in the defendant’s answer.

      J. L. Ward, for the appellant.

      W. JB. Hornblower, for the respondent.
   Van Brunt, P. J.:

Both parties in their pleadings have resorted to the pernicious practice which has been so often condemned by the courts, of referring to allegations in pleadings as being embraced between certain folios, which style of allegation necessarily produces the greatest confusion and uncertainty, as the folios in a printed record are entirely different from those which appear in the original pleadings.

Upon an examination of the pleadings presented upon this appeal it appears that that portion of the answer which is demurred* to, and which is pleaded as a further and separate defense, contains no denials, and, therefore, the defense is to be treated as an avoidance simply of the cause of action alleged in the complaint. Briefly stated, such cause of action is to the effect that on or about the 29th of April, 1890, the defendant, the United Electric Traction Company, duly made and delivered to the plaintiff its certain guaranty in the words and figures following:

“For Talue Received, The United Electric Traction Company, a corporation created and organized under the laws of the State of New Jersey, does hereby, for itself, its successors and assigns, guarantee to The Mercantile Trust Company, as Trustee, the payment of principal and interest, at maturity, of one hundred and two (102) Bonds of The Julien Electric Traction Company, of $1,000 each, being numbers 1 to 30, 57 to 64, 67 to 70, 76 to 105, 110,118, 123 to 150; and The United Electric Traction Company aforesaid does hereby, for itself, its successors and assigns, covenant and agree to comply with all the conditions, stipulations and agreements contained in the Mortgage or Deed of Trust executed by The Julien Electric Traction Company to The Mercantile Trust Company, trustee, bearing date June 26, 1889, and a supplemental mortgage confirming the same bearing date October 18, 1890, to secure said bonds, more especially the requirements of said mortgage as to renewing, replacing and keeping in good condition, all the property covered by said mortgage and said supplemental mortgage. And The United Electric Traction Company aforesaid does hereby, for itself, its successor’s and assigns, covenant, stipulate and agree that the United Electric Traction Company aforesaid will not make, nor allow to be made or issued any . mortgage, mortgage bonds, debentures or any preference securities other than the $2,000,000 in preferred stock provided for in the said The United Electric Traction Company’s articles of incorporation, until all of the said 102 bonds above referred to, both principal and interest, shall have been paid or redeemed pursuant to the terms of said bonds.”

And that at or about the same time there was deposited with the defendant, the Atlantic Trust Company, 30,000 shares of the capital stock of the Consolidated Electric Storage Company, as security for the performance of said guaranty, which said stock the said defendant, the Atlantic Trust Company, received for such purpose, and indorsed upon said guaranty its certificate as follows:

“ There has been deposited with the Atlantic Trust Co. 30,000 shares of the Consolidated Electric Storage Company’s stock security for the jDerformance of the above guarantee.”

That since July, 1891, default having been made in the payment of the interest due upon the bonds mentioned in the guaranty, and said bonds having become due and payable, payment thereof has been duly demanded of the United Electric Traction Company and its receiver, which payment has been refused, and that after such refusal the plaintiff duly demanded of the defendant, the Atlantic Trust Company, that it deliver to the plaintiff said 30,000 shares of capital stock, or that it sell the same or cause the same to be sold, the proceeds to be applied to the payment of the priifcipal and interest remaining unpaid upon said bonds mentioned in the guaranty; but said defendant, the Atlantic Trust Company, has refused to comply with either of said demands. After an allegation as to the amount of the debt, judgment is demanded that the Atlantic Trust Company be decreed to deliver said 30,000 shares of stock to the plaintiff, or that said stock be sold under the direction of the court, and the proceeds applied to the payment of the principal and interest remaining unpaid of the bonds mentioned in said guaranty.

To this complaint the defendant, the Atlantic Trust Company, alleged by way of defense, that prior to the execution of the guaranty of the United Electric Traction Company hereinbefore mentioned, and prior to the making of the indorsement thereon, that said Atlantic Trust Company had received as security for the performance of said guaranty 30,000 shares of the Consolidated Electric. Storage Company’s stock, said Electric Traction Company had hypothecated to the Atlantic Trust Company, as security for advances thereafter to be made to it by the Atlantic Trust Company, its interest in 60,000 shares of the capital stock of the Consolidated Electric Storage Company theretofore issued and delivered to and then standing in the name of the Atlantic Trust Company as trustee, 30,000 shares thereof being the shares which the said Atlantic Trust Company acknowledged to have received as security for the performance of said guaranty ; and that the said Atlantic Trust Company signed said acknowledgment relying upon, and upon the faith of, the agreement of the defendant, the United Electric Traction Company, contained in the guaranty, that said United Electric Traction Company would not make nor allow to be made or issued any mortgage, mortgage bonds, debentures, or any preferred securities, other than the $2,000,000 in preferred stock provided for in said United Electric Traction Company’s articles of incorporation, until all the bonds referred to in the guaranty, both principal and interest, should have been paid and redeemed, and that thereafter and prior to the 8th of December, 1890, relying upon and upon the faith of said agreement, the Atlantic Trust Company advanced and loaned to said United Electric Traction Company divers sums of money, amounting in the aggregate to the sum of $190,000 or thereabouts, upon the hypothecation to it as security for the payment therefor of the interest of said defendant, the United Electric Traction Company, in the 60,000 shares of the Consolidated Electric Storage Company’s stock as above set forth.

The defendant then alleged that on or about the 8th of December, 1890, the said United Electric Traction Company without its consent executed to the plaintiff as trustee its' certain mortgage or deed of trust, whereby it conveyed to the said plaintiff certain specified real and personal property therein set forth to secure its bonds to the amount in the aggregate of $700,000, which said trust was •accepted by tbe plaintiff, who thereafter certified said bonds, which were thereafter issued, and are still outstanding and unpaid.

To this defense the plaintiff interposed a demurrer upon the .ground that it was insufficient in law upon the face thereof.

The ground upon which the defendant claims to uphold the •defense demurred to is, that the 30,000 shares of stock deposited as •collateral, are to be deemed a surety, and that the permitting by the plaintiff of the violation of the restrictions contained in the guaranty upon which this 30,000 shares of stock was a surety, ■changed the position of the surety, and discharged the stock from its obligation. It seems to us that this position which it is necessary to maintain, is giving a personality to a thing, and a power of contract to an article of personal property, which has never yet been recognized in the law. It is treating the 30,000 shares as though it was a contracting party j whereas it was the owner of this stock that was the contracting party j and that owner, as alleged in the ¡answer, was the United Electric Traction Company, the guarantor •in the instrument which was originally given to the plaintiff.

The claim is that the Mercantile Trust Company having entered into a contract with the United Electric Traction Company, and that company having deposited as collateral to such contract, certain ¡shares of stock (it. is true such deposit was in the hands of the Atlantic Trust Company, but as far as the relations between these parties were concerned, they were merely depositaries), the parties to the agreement, one of them being the owner of the stock, as far ¡as the plaintiff knew, could not alter the terms of the guaranty without discharging the pledge. It seems to us that the statement of such a proposition shows that it is not well taken. The plaintiff had no notice of the intervention or any other rights, and whether the stock was deposited with the Atlantic Trust Company ■or with itself as pledgee, its relations to the security were precisely the same; and it cannot for a moment be claimed that where a pledge is in the hands of the pledgee, and the pledgor and pledgee analce alterations in the terms of the pledge, the pledgee having no notice of the intervention of any other rights, he can possibly thereby lose his lien upon the pledge.

It is perfectly clear as far as the plaintiff was concerned, that this restriction in the contract of guaranty was for its protection, and that it inured to the benefit of the plaintiff, and of nobody else. It. is not even alleged that it was made for the purpose of influencing, or that it did influence, the action of the Atlantic' Trust Company, and if it had been so alleged, there being no pretense that the Mer~ cantile Trust Company had notice of any such purpose, its rights could not be affected thereby. If the Atlantic Trust Company,, being the trustee of the plaintiff so far as this stock was concerned, claimed any interest therein which was inconsistent with the right of the plaintiff to deal with the United Electric Traction Company, the owner of the stock deposited and who made the deposit, as the owner thereof, notice of such interest should have been given if it was intended to restrict the right of the plaintiff to deal with the owner of this collateral.

We think, therefore, that under the circumstances, whether or not the Atlantic Trust Company made advances upon the strength of this agreement of the United Electric Traction Company with the Mercantile Trust Company not to incumber its property, such agreement not having been made for its benefit and the Mercantile Trust Company not having consented to hold such agreement for any other purpose than its own protection, is entirely immaterial,, and is a matter with which the plaintiff has nothing to do. The facts alleged in the portion of the answer demurred to, therefore, disclose no reason for a refusal to the plaintiff of the relief which it would have been undoubtedly entitled to but for the existence of such alleged facts.

The judgment should, therefore, be affirmed, with leave to the defendant to amend its answer in respect to this defense, upon payment of the costs of the appeal and of the court below.

Follett, J., concurred.

Judgment affirmed, with leave to the defendant to amend its answer in respect to defense stated in opinion, upon payment of the costs of the appeal and of the court below.


text:
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Certain Wharf Property, etc.

      Designation of a Superior Court judge to hold Supreme Court Circuits and Special Terms — loss of jurisdiction.

    If a judge of the Superior Court of the city of New York, who has been designated to hold Circuits and Special Terms of the Supreme Court, resigns the office of judge of the Superior Court after having heard, but not decided, an application submitted to him in the Supreme Court, and is thereupon appointed a justice of the Supreme Court, he loses jurisdiction to thereafter decide the matter so under consideration by him.
    Appeals by Edmund Coffin, Jr., from the whole, and by Smiten Y. Tripp, from a part of an order made at the New York Special Term of the Supreme Court and entered in. the office of the clerk of the city and county of New York on the 19th day of March, 1892, appointing commissioners in a proceeding to acquire title to property alleged to be necessary to be taken for the improvement of the water front in the city of New York.

      F. A. Irish and Grata Fathom, for the appellants.

      O. Blom&y, for the Mayor, etc., respondent.
   Van Brunt, P. J.:

There is only one question which it is necessary to consider in the disposition of this appeal, and that is the recital in the order of the objection to the learned judge deciding the motion for the appointment of commissioners, because his right to do so had expired.

It appears upon the face of the order that this application was made to the lion. George L. Ingraham, a justice of the Superior Court of the city of New York, sitting as a justice of this court pursuant to statute, who, after the hearing and submission thereof, and before any decision had been rendered therein, had resigned his office as a justice of said Superior Court, and had been duly appointed to the office of a justice of this court, and that the respondents had severally objected for that reason to a decision of said application by said justice, the ground of the objection being that he had lost jurisdiction of the application.

It is to be observed that the authority of a justice of the Superior Court of the city of New York, to preside at any of the courts which are ordinarily held by justices of the Supreme Court, is derived from section 12 of the Constitution, which provides that the Legislature may provide for detailing judges of the Superior Court and of the Court of Common Pleas to hold Circuit Courts and Special Terms of the Supreme Court in this city. And pursuant to such authority the Legislature have authorized the Governor to designate judges of the Superior Court and of the Court of Common Pleas to hold Circuits and Special Terms of the Supreme Court; and pursuant to this authority of the Legislature, the Governor duly designated the Hon. George L. Ingraham, a justice of the Superior Court, to hold Circuit Courts and Special Terms of the Supreme Court in the city of New York, and while acting under such designation this application was submitted. He, having resigned his position as judge of the Superior Court, was appointed by the Governor a justice of the Supreme Court, to fill a vacancy caused by death.

I am of the opinion that when Mr. Justice Ingraham resigned his office as judge of the Superior Court, he lost jurisdiction of this matter, which was then undetermined, and that there is no similarity between this case and the case to which attention has been called, of a judge of the court succeeding himself by popular election. It has been held repeatedly and has been the continuous practice to treat the terms of judicial officers, since such officers became elective, where the judge or justice succeeds himself as one continuous term, there being no interval of time' during which he did not hold the office.

But in the case at bar a different question arises. The office which Justice Ingraham held after his resignation as judge of the Superior Court -was a different one, although it was judicial in its character. When he ceased to be a judge of the Superior Court his judicial authority ceased; and when lie became a justice of the Supreme Court by appointment of the Governor, his authority as such justice then first commenced.

It is true that by section 236 of the Code it is provided in respect to judges of the Superior Court and the Court of Common Pleas who may be designated to hold terms of the Circuit Court and of the Special Term, that such judge, during the period of designation, possesses all the powers of a justice of the Supreme Court in or out of court to make orders in any action or special proceeding in the Supreme Court. But this does not make him a justice of the Supreme Court. His judicial authority arises from the fact that he is a judge of a court from which he may be detailed to hold Circuits, which are independent of the Supreme Court, and Special Terms of the Supreme Court. He may perform some of tlie duties of a justice of the Supreme Court; but, notwithstanding the broad language of the provision above quoted, it cannot be claimed for a moment that he possesses all the powers of a justice of the Supreme Court, because he'has no power to preside at any term of any court independent of the Supreme Court, except the Circuits. He is, for example, necessarily excluded from the Court of Oyer and Terminer, although he is said to have all the powers of a justice of the Supreme Court.

It will be seen, therefore,1 that the office which the learned justice holds is different from that which he held when this application was submitted; and it not having been decided until that office terminated and he entered upon the duties of a new and independent one, he clearly lost jurisdiction.

The order should be reversed, with ten dollars costs and disbursements.

O’Brien and Follett, J.J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Per Curiam :

text:
    Henrietta Fisk, Respondent, v. James Gordon Bennett, Appellant.

      Substituted service of a summons — residence of the defendant.

    Substituted service of a summons upon a defendant residing in the State of New York must, by force of section 436 of the Code of Civil Procedure, be made at the defendant’s residence, and an order for such service at a place other than that of the defendant’s residence is fatally defective.
    Appeal by the defendant, James Gordon Bennett, from an order of the Supreme Court made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 13th day of March, 1893, denying the defendant’s motion' to vacate an order for substituted service of summons.
    The original order for substituted service was granted upon affidavits which contained the following allegations:
    An affidavit by W. Y. Beaman: “ That for several weeks deponent endeavored to find said defendant, who is proprietor of the New York Herald, but did not succeed in doing so. That the only information that he could obtain from several employees of said defendant with whom he is perfectly friendly and of whom he inquired, was that said defendant had left the State of New York, but his present place of sojourn they did not know. That said deponent could not and cannot ascertain the present place of sojourn of defendant, although he has continued his said inquiries during the present month; 220 Broadway is the only address given in this State and city.”
    An affidavit by John G. Bitter: “ That the only information or knowledge that deponent has been able to obtain is that defendant has left the State for an indefinite time and can be reached only by mail through the office of the New York Herald, of which he is proprietor.”

      John Townshend, for the appellant.

      B. G. Ghetwood for the respondent.
   Per Curiam :

Section 435 of the Code of Civil Procedure provides : "Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the state may be made by the court or a judge thereof * * * upon satisfactory proof * * * that proper and diligent effort has been made to serve the summons upon the defendant and that the place of his sojourn cam not be ascertained, or, if he is within the state, that he avoids service so that personal service cannot be made.”

Section 436 provides that “ the order must direct that the service of the summons be made by leaving a copy thereof and of the order at the residence of the defendant, with a person of proper age, if upon reasonable application admittance can be obtained and such a person found who will receive it, or, if admittance cannot be so obtained nor such a person found, by affixing the same to the outer or other door of the defendant’s residence, and by depositing another copy /thereof, properly inclosed in a postpaid wrapper addressed to him at his place of fesidence, in the post-office at the place where he resides.”

The affidavits upon which the original order was made, and upon which the motion to vacate it was heard, show that the defendant is a resident of the State of New York, and is temporarily sojourning in the city of Paris, France. By the order it was directed “ that said summons be served by leaving a copy thereof and of this order at No. 220 Broadway, in the city of New York, with a person of proper age, and by depositing another copy of said summons and this order in the General Post-Office of the city of New York, properly inclosed in a postpaid wrapper addressed to said James Gordon Bennett, 220 Broadway, New York City.” It appears by the moving affidavit — which is not disputed,— that No. 220 Broadway is not and never has been the residence of the defendant, but that his residence is, and for many years has been, at No. 28 West Twenty-first street in said city.

This direction for service upon the defendant at a place other than that of his residence, as provided by the Code, was a fatal error, for which the order must be reversed.

The order is reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs.

Present — Yan Brunt, P. J., Follett, and Barrett, JJ.

Order reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs.


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    In the Matter of the Application of the Broadway and Seventh Avenue Railroad Company, Respondent, for Condemnation of the Leasehold Estate and Property of The Acker, Merrall and Condit Company, Appellant.

      Condemnation of real property under chapter 23, title 1, of the Code of Civil Procedure ■ — appeal from an intermediate order — defective notice of the presentation of the petition.

    An appeal lies to the General Term from an order affecting a substantial right, as, e. g.', an order appointing commissioners of appraisal, made in a proceeding under chapter 23 of title 1 of the Code of Civil Procedure, for the condemnation of real property, before the entry of the final order or judgment. (Code Civ. Pro. §§ 1356, 3334.)
    Objections raised to the sufficiency of the notice of the presentation of the petition in such a proceeding for condemnation are not waived by the mere fact that a demurrer to the petition is subsequently interposed.
    The statement in a notice annexed to a petition for the condemnation of real property situated in the city of New York, that the petition will be presented "to “the Special Term of the Supreme Court of New York,” is not a compliance with the provision of section 3361 of the Code of Civil Procedure, which requires a notice of the place at which the petition will be presented to a Special Term of the Supreme Court held in the judicial district where the property is situated, and jurisdiction is not acquired under such a defective notice.
    Appeal by tlie defendant, tbe Acker, Merrall & Condit Company, from an order of the Supreme Court made at a Special Term held in and for the county of New York, and entered in the office of the clerk of the city and county of New York on the 11th day of April, 1893, appointing commissioners of appraisal in a proceeding for the condemnation of certain real property situated in the city of New York.

      Henry G. Atwater, for the appellant.

      Ghcmdler <& Eremer, for the respondent.
   Van Brunt, P. J.:

This proceeding was instituted by the respondent under chapter 23, title 1, of the Code of Civil Procedure for the condemnation of certain property as necessary for the prosecution of its business. Upon presentation of the petition, with notice attached, to the court, the appellant objected to the* jurisdiction of the court upon the ground that the notice of the presentation of the petition was insufficient and defective, which objection being overruled, the appellant demurred to said petition upon the ground of its insufficiency, which demurrer was overruled and an order made appointing commissioners of appraisal, and from such order this appeal is taken.

It is urged upon the part of the respondent that this appeal is premature and that no appeal lies from any order made in the progress of the proceeding until the final order or judgment is entered, referring to section 3375, which engrafts upon this proceeding the pernicious practice first injected into our system of procedure by the Code of Civil Procedure, of allowing all proceedings antecedent to the judgment to be reviewed upon appeal from the judgment if the appellant states in his notice that the same will be brought Up for review.

The sections under which this proceeding is instituted are part of the Code of Civil Procedure, and the provisions of such Code seem to be applicable thereto* so far as they are not inconsistent. Under the definitions of the Code this proceeding seems to be a special proceeding (§ 3331), and by section 1356 an appeal may be taken from an order affecting a substantial right made in a special proceeding, and the appointment of these appraisers in this special proceeding seems to come within this provision.

It is further claimed by the respondent that by the so-called demurrer to the sufficiency of the petition all objection to the sufficiency of the notice is waived.

"We find in the regulation of the practice in these proceedings no provision for the filing of what is technically called a demurrer. In fact the grounds stated in the so-called demurrer were nothing but additional objections to the jurisdiction of the court, because of the insufficiency of the allegations of the petition, and nothing was waived. Indeed, under the system inaugurated by this Code it is difficult to see how any of these objections can be waived by any future proceeding, as the order overruling them may be reviewed upon appeal from the final order or judgment; and if reviewable upon the final order or judgment, such order overruling them may certainly be reviewed upon a direct appeal therefrom.

The section of the Code (3361) requires that there must be annexed to the petition a notice of the time and place at which it will be presented to a Special Term of the Supreme Court held in the judicial district where the property or some portion of it is situated, and a copy of the petition and notice must be served, etc.

The notice in the case at bar reads: “ Please to take notice that we shall apply to the Special Term of the Supreme Court of New York, on Thursday, the 16th day of March,” etc. This clearly was not a compliance with the law; no place whatever was mentioned; the term “Special Term of the Supreme Court of New York” was just as applicable to every Special Term in the State of New York, wherever held, as to the" term held in the county of New York. If it be said that there could be no mistake or misapprehension because the application was required to be made in the judicial district where the land is situated, it seems to be sufficient to say that the Legislature did not appear to think that this was sufficient, but required the party calling upon the court to exercise this sovereign power to be precise and definite in his notice as to the place of presentation of his petition. These proceedings tending to deprive a citizen of his property against his will, the statute authorizing the same must be strictly pursued or jurisdiction will not be acquired.

It would seem, therefore, that, the notice of presentation of petition not complying with the statute, the court did not acquire jurisdiction and the order appealed from should be reversed, with ten dollars costs and disbursements, and the proceeding dismissed, with costs.

Barrett and Follett, LJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the proceeding dismissed, with costs.


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    John Lawson, Appellant, v. William J. Merrall and Another, Respondents.

      VaUing of a hand elemtor — injury to cm employee — failwre of proof of negligence on the part of the employer.

    In an action brought by an employee to recover the damages resulting from an injury received while in the defendants’ employment, claimed to have been caused by the defendants’ negligence in permitting an elevator to be out of repair, it appeared that while the plaintiff, who was in the employ of the defendants, was assisting in operating a hand elevator in the defendants’ stable, an iron clamp, to which wire ropes were fastened, broke and the elevator fell and injured him.
    The plaintiff testified that one or more anti-friction rollers, on which a counter-shaft revolved, which operated a drum on which the wire ropes wound and unwound, had dropped out of place some ten months before the accident, and so far as he knew, had not been replaced, but he also testified that the elevatoi had been safely operated since then until the accident in suit.
    An expert called by the plaintiff testified that this state of affairs would indicate that the missing rollers had been replaced or new ones substituted. There was no evidence explaining why the iron clamp broke.
    On appeal from a judgment dismissing the complaint,

      Held, that the evidence fell far short of showing that the defendants were negligent in the care or operation of the elevator, and, hence, that the-complaint was properly dismissed.
    Appeal by tbe plaintiff, John Lawson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 12th day of March, 1892, upon the dismissal of the complaint on the merits at the New York Circuit.

      Alfred JB. Oruihsha/rik, for the appellant.

      John M. Scribner, for the respondents.
   Follett, J.:

This action was brought by an employee against his employers to recover damages for a personal injury alleged to have been caused by their negligence. The defendants occupied a stable three stories high in Fiftieth street in this city, the second -and third stories of which were used for storing feed for their teams. In this stable was a hand elevator for hoisting hay and grain to the upper floors, the usual load for which was 2,00Q pounds. The carriage was sustained by two wire ropes fastened to an iron clamp on its top which wound around the drum as the carriage was drawn up, and unwound when it was lowered. The drum was operated by a countershaft and pulleys, the ends of the countershaft revolving on anti-friction iron wheels or rollers. The elevator was usually operated by four or more men pulling down on a rope which caused the drum to revolve and the carriage to move upwards. On some occasions four men worked at the rope and at other times more, depending on the weight of the hay or grain to be hoisted.

On the 24th of November, 1888, the plaintiff and three others, standing on the first floor, were engaged in hoisting about a ton of oats to one of the upper floors, and before the carriage reached its destination, the iron clamp to which the wire ropes were attached broke, and the carriage fell, fracturing the plaintiff’s right leg.

The plaintiff alleged in his complaint, and sought to prove on the trial, that the accident was caused by the defendants negligently permitting the elevator to be out of repair. He did not allege, nor did he seek to prove, that the elevator was defective in design or in construction. The particular defects complained of and sought to be established by the evidence were that about ten months before the accident one or more of the anti-friction rollers dropped out of place, and that sometimes the carriage would get out of the guides or sheaves which were designed to hold it in place. The plaintiff testified that about ten months before the accident one of the anti-friction rollers dropped out. He also testified: “ I saw two or three other rollers out, lying upon the top floor alongside of the elevator, as far as I know they were out all the time.” Plow long before the accident he saw the rollers lying on the floor does not appear, nor was it shown that new rollers had not been substituted in the place of those that were out. The plaintiff simply testified that up to the time this accident occurred the elevator was never repaired to my knowledge; I was there all the time.” There is no evidence that any of the rollers were out of position at the time of the accident. The plaintiff testified that from the time when the roller fell to. the time of the accident, a period of ten months, the elevator wras used daily, carrying loads as usual, and that no other accident happened. An expert called by the plaintiff testified that this state of affairs would indicate that the Trussing rollers had been replaced or new ones substituted. There was no attempt to show that the clamp which broke was insufficient in size, was of poor iron, or was in any way defective; nor was it shown whether the fracture was new or old. The only other defect in the working of the elevator disclosed by the evidence is that on four or five occasions, the last one about a month before the accident, the carriage, when hoisted, would get out of the grooves or guides on its sides; that on such occasion it would be lowered, shoved into place, and then that it worked well. A witness called by the plaintiff testified that unless the carriage was evenly loaded it would sometimes be thrown out of the grooves. On the occasion of the accident the plaintiff loaded the elevator, and the evidence fails to show that it got out of its grooves on this occasion.

There is no evidence in the case showing that any of the anti-friction rollers were out of position at the time of the accident, or that any had been for a long' time before. Indeed, there was an utter failure to show that there was any cause for the accident except the breaking of the clamp, but why it broke was left wholly unexplained by the evidence.

We think it very clear that the evidence fell far short of showing that the defendants or any of their agents were negligent in the care or operation of the elevator, and that the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Judgment affirmed, with costs.


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    Charles H. Hyde, as Administrator, etc., of John H. Hyde, Deceased, Respondent, v. George H. Kitchen and Another, as Executors, etc., of Maria Van Vleck, Deceased, Appellants.

      Sewings bank account in trust for another ■— the trust not affected by subsequent acts or declm’ations of the depositen'.

    The inference of the creation and declaration of an irrevocable trust arising (in the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent) from the deposit of money and the opening of an account in a savings bank by the depositor “for” another, accompanied by the issuanee of a bank book to tbe depositor “in trust” for such other person, cannot he refuted by evidence of subsequent acts or declarations of the depositor, not connected with the deposit so as to constitute res gestae.

    Appeal by tbe defendants, George H. Kitchen and David T. Oorde, as executors of Maria Yan YIeck, deceased, from a judgment of tbe Supreme Court in favor of tbe plaintiff, rendered upon a trial by tbe court at tbe New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on tbe lltli day of April, 1893.
    Tbe action was brought for tbe purpose of recovering moneys deposited in tbe Manhattan Savings Institution in New York city, by Maria Yan YIeck-, since deceased, in trust for John H. Hyde.

      Joseph Fettretch, for tbe appellants.

      Jadislas Fa/rge, for tbe respondent.
   Barrett, J.:

Tbe learned judge at Special Term found as a fact that in February, 1881, Maria Yan YIeck deposited §110 in the Manhattan Savings Institution, in trust for tbe plaintiff’s intestate, John H. Hyde, who was her brother. This finding was based upon tbe undisputed testimony that at tbe time of tbe deposit, a bank book was issued and delivered 'to Mrs. Yan YIeck, at her request, with tbe words “ Maria Yan YIeck, in trust for John H. Hyde,” written upon tbe cover, and tbe words, “ Maria Yan YIeck, for John H. Hyde,” written within tbe cover. It also appeared that tbe ledger account, which was then opened and kept by the bank, was in the name of “ Maria Yan YIeck, for John H. Hyde.” Other sums were deposited by Mrs. Yan YIeck, and interest was credited to this account, from time to time, down to January, 1892. And during all that time tbe account continued in its original form. Mrs. Yan YIeck, however, retained tbe bank book in her possession down to tbe time of her death, and tbe defendants, her executors, have bad it since.

Upon this state of facts, tbe learned judge found, as a conclusion of law, that there was an irrevocable trust in favor of John H. Hyde, and that tbe plaintiff, as bis administrator, was entitled to tbe moneys in question.

We think this conclusion was correct, and we¡ need add but little to the satisfactory reasons which the learned judge has given therefor.'

The appellants concede that if the well-known case of Martin v. Funk (75 N. Y. 134) stood alone, they would not dispute the doctrine upon which this conclusion was arrived at. But they claim that later cases modify this doctrine, and hold that an intent, contrary to that evinced by the surroundings of the original transaction, may be established by later acts and declarations of the depositor, not in any way connected with the deposit.

Mabie v. Bailey (95 N. Y. 206) and Beaver v. Beaver (117 id. 421; second appeal, 50 N. Y. St. Repr. 69) are cited as examples of the latter view. We have examined these cases carefully, but we ■find nothing in them to support the appellant’s contention. In Medie v. Bailey, Judge Andrews said: “ The case of Martin v. Funk (75 N. Y. 134) decided that a deposit made in the form of the deposit in this case constituted a trust and, unexplained, operated to transfer the beneficial interest in the deposit to the beneficiary named, subject to the conditions of the trust, to be implied from the. circumstances.”

It is true that the learned judge suggested that the character- of such a transaction was not conclusively established by the mere fact of the deposit “ so as to preclude evidence of contemporaneous faets and circumstances constituting res gestae to show that the. real motive of the depositor was not to create a trust.” He nowhere intimated, however, that subsequent acts and declarations, not constituting res gestae, could be resorted to, to show the depositor’s original intent. On the contrary, he held that the subsequent withdrawal of the deposits by the depositor was not legitimate evidence that he did not intend, when the deposits were made, t'o create a beneficial trust for the beneficiary named. “ It might,” he added, be competent eviden.ee of a change of purpose, but it throws no light on the original transaction.”

In Beaver v. Beaver there wras no declaration of trust, and the case turned upon the validity of an alleged gift. No doubt is there expressed as to the correctness of the rule laid down in Martin v. Funk. On the contrary, that case was referred to with entire acquiescence in its trust doctrine. It was said that a declaration of trust could not be implied from a mere deposit by one person in the name of another. But it was conceded that such declaration could be implied from a deposit by one person in trust for another. And there was not a suggestion that such a trust was revocable, or that, subsequent acts and declarations of the depositor, constituting no part of the res gestee, were admissible for the purpose of showing a contrary intent to that evinced by the original transaction and its surroundings

In the present case there was no attempt to vary the effect of the original transaction by contemporaneous facts or circumstances. The original transaction certainly constituted, under the rule so laid down in Martin v. Funk and Mabie v. Bailey, an unequivocal declaration of trust. Such was the inference prima facie, at least from the deposit in the form proved and found. (Cases already cited; and see also Smith v. Lee, 2 T. & C. 591; Weaver v. Emigrant & Savings Bank, 17 Abb. N. C. 82; Barker v. Harbeck, 2 N. Y. Supp. 425.)

In the absence of any evidence of contemporaneous facts or circumstances indicating a contrary intent, that inference must hold. What the depositor may have subsequently said and done — words and acts not constituting res gestee— cannot affect the original transaction. They may show a change of purpose, but not of original intent.

The evidence which was here admitted comes within this principle, and that which was rejected was inadmissible upon the same principle.

It follows that the judgment shoxdd be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.