author: Follett, J.:

text:
    John Turney, Appellant, v. Henry M. Van Gelder, Charles Van Gelder and Henry J. Newton, as Assignee for the Benefit of Creditors of Van Gelder Brothers, Respondents.

      Assignment for the benefit of creditors — action to set aside the assignment for fraud, brought after a judgment for an accounting by the assignee — fraudulent intent in making the assignment.

      Semble, that a judgment obtained in an action brought by certain judgment creditors on behalf of themselves and of all others similarly situated, to compel an assignee for the benefit of creditors to account and to distribute the avails of the assigned estate, followed by an accounting before a referee and the entry of an order discharging the assignee, is not a bar to an action subsequently brought by another judgment creditor, who had no notice that the judgment in the action for an accounting was to be entered or of the subsequent proceedings thereon, to set aside the assignment as fraudulent. {Kerr v. Blodgett, 48 FT. Y. 62, distinguished.)

      Query, whether a creditor who has verified and presented his claim to an assignee for the benefit of creditors can thereafter commence and maintain an action to set aside the assignment as fraudulent.

      The facts that an assignor for the benefit of creditors has been employed by the assignee to prepare for market unmanufactured stock belonging to the assigned estate, and for that purpose is left in possession of the assigned estate, and that the assets of the estate bring but about half of their inventory value, are not of themselves proof of fraud in the mailing of the assignment, but may be justified by the circumstances.
    The fact that property belonging to an estate assigned for the benefit of creditors is bid in on public sale by third persons in the interest and for the benefit of the wife of the assignor is, in the absence of evidence that the sale was collusive or that the property brought less than it was worth, slight, if any, evidence that the assignment was made with a fraudulent intent.
    Appeal by the plaintiff, John Turney, from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of the city and county of New York on the 11th day of January, 1893, upon a decision of the court rendered at the New York Special Term.
    Eor some years prior to May 9, 1887, Henry Van Gelder and Charles- Van Gelder were partners under the firm name of Van Gelder Bros., and engaged in manufacturing leather for hatters, at 97 Spring street, New York. On the date mentioned they made a general assignment to Henry J. Newton for the benefit of creditors. The partners were owing no individual debts, and the assignment covered partnership and individual property. By the assignment the employees of the firm were preferred. After paying those claims the assignee was directed to pay the indebtedness of the firm to himself, and secondly the claims of three other creditors. After the payment of these preferred debts the assignee was directed to distribute the remainder pro rata among the other creditors of the .assignors. The assignee accepted the trust and entered upon its execution. The usual notice to present claims was sent to the creditors, and February 20, 1889, the plaintiff filed proof of his debt with the assignee. May 31, 1890, the plaintiff recovered a judgment on this claim against the assignors for $15,306.68, and an execution was issued thereon, which was returned wholly unsatisfied. On the 26th of October, 1889, John M. Jones and others, who were judgment creditors of Van Gelder Bros., began an action in the Supreme Court against the assignee and assignors to compel the assignee to account for the assigned estate and distribute its avails among the creditors. The action was brought “ on behalf of themselves and all other creditors of the defendants, Henry Yan Gelder and Charles Yan Gelder, who shall come in, seek relief and contribute to the expense of this action.”
    It was also alleged, “ That the question which is the subject of this action, is one of common and general interest to many persons who are interested in said trust estate. That said creditors, as plaintiffs are informed and believe, are very numerous, and that some of them are unknown to plaintiffs, and cannot with diligence be found by them, and that it is impracticable, therefore, for plaintiffs to bring them all before the court in this action, and for these reasons sues for the benefit of all.”
    The assignee answered. After issue joined a reference was ordered to take and state the account of the assignee, to ascertain and report the amounts due and owing the plaintiff and the other creditors of the assignor. ' The referee was also directed to fix a date for the hearing, and give notice thereof to the creditors. The referee gave due notice to all creditors that the hearing would be had February 28, 1890. On July Y, 1890, the referee made his report, which, on the Yth of September, 1890, was confirmed by the court.
    It appears by the report that after paying $650.Y5, the wages of employees of the firm, the expenses of the assignment of the action and accounting, there was insufficient to pay the preferred claim of the assignee. On the lYth of November, 1890, an order was entered in the action, wherein Jones and others were plaintiffs, discharging the assignee and the sureties on his bond. The plaintiff had no notice that the judgment was to be entered, nor of the motion to confirm the report, nor of the motion to discharge the assignee. On the lYth of July, 1890, ten days after the date of the referee’s report, this action was begun to set aside the assignment on the ground that it was executed with the intent on the part of the ■assignors and assignee to defraud the creditors of the assignors.

      Bhmnenstiel & Kirsch, for the appellant.

      E. K. Benn, for the respondents.
   Follett, J.:

The respondents insist that the judgment and the order discharging the assignee entered in the action brought by Jones are a bar to this suit, and cite in support of their position, Kerr v. Blodgett (48 N. Y. 62). Kerr's case was an action brought to compel the assignee to account. A previous action had been begun in the same court for the same purpose, by a creditor, in his own behalf, as well as in behalf of all others similarly situated. A decree was entered in the first action, and a report was made, which was confirmed before Kerr’s action was begun. It was held that both actions-being for the same purpose, the second action could not be maintained. The facts in Kerr's case are more fully reported in 16 Abb. 137, and 25 How. Pr. 303. The case at bar does not ask for the same relief that was sought in the action brought by Jones —an. accounting — but seeks to have the assignment set aside as fraudulent. The action of Jones was in aid of the assignment, and the relief which this plaintiff seeks could not have been given in it. The order discharging the assignee has no greater force than the-judgment on which it rests.

The respondents also insist that the plaintiff cannot maintain this, action because he verified and filed his claim with the assignee, and in support of this position they cite Cavanagh v. Morrow (67 How. Pr. 241); Wilson v. Daggett (9 N. Y. Civ. Pro. Rep. 411), and McLean v. Prentice (34 Hun, 504; affd., 109 N. Y. 666.)

Cavanagh's case was brought to set aside an assignment as fraudulent. The plaintiff in that action had filed his claim with theassignee, and appeared on the accounting in the Court of Common Pleas, and interposed objections to the assignee’s account. The account and objections were referred to a referee, who made his. report. It was held that Cavanagh, having filed his claim and participated in the accounting, had elected to take under the assignment, and could not afterwards maintain an action to set it aside.

In the case at bar, the coui-t did not find that the plaintiff took: part in the accounting, but simply that he verified and filed his claim with the assignee before the action for an accounting was begun. In Wilson v. Daggett, it was held that a creditor who had filed his-claim and proved it in proceedings for an accounting pending in the Common Pleas, could not maintain an action to set aside the assignment. Precisely what was done by the creditor on the accounting, does not appear in the report of the case. No action was pending to set aside an assignment, the question being whether the e^aminact-ion of the assignor in proceedings supplementary to execution' should be limited to transactions since the assignment. The question now under consideration was not involved in that case.

In McLean v. Prentice it was held that an action to set aside a general assignment as fraudulent brought several months after the assigned estate had been distributed under the decree of the court, could not be maintained. In Schofield v. Scott (3 N. Y. Supp. 496; S. C., 20 N. Y. St. Repr. 815) it was held that filing a claim after an action had been brought to set aside an assignment as fraudulent, was not a defense to the action. Whether a creditor who has verified and presented his claim to an assignee, can thereafter commence and maintain an action to set aside an assignment as fraudulent, does not seem to have been decided, and under the facts as found in this case it is not necessary now to determine the question.

The court found that the assignment was not fraudulent in fact. The facts relied upon by the plaintiff as evidence of fraud were, that the assignors were employed by the assignee to get the Unmanufactured stock ready for market, and were for that purpose left in possession of the assigned estate, and that the assets of the estate brought but about fifty per cent of their actual value as stated in the inventory. The evidence is, that the property in the condition that it came into the hands of the assignee, was of little value, and not marketable until it was manufactured into the article for which it was designed. The goods, consisting of skins, were made into hat sweats ” by the assignors for the assignee, and when sold the avails were deposited to the credit of the assignee in a separate account. There is no evidence that the assignors derived any personal benefit from their employment, or that there was any understanding previous to the assignment that they should be employed. They received no compensation for their services, but were allowed to use the machinery to manufacture from new stock furnished them by friends. By the inventory, the assets were estimated to be of the actual value of $8,585.86, but they brought only $4,433.21. It is argued that this is evidence of fraud, but thei-e is no evidence that any of the property was wasted, or that any was sold for less than its value. The court found, upon undisputed evidence, “ that as soon as the stock of the assigned estate had been disposed of and in about the month of March, 1888, the assignee sold at auction the machinery, fixtures, furniture and all tbe remaining unmarketable assets of - the assigned estate. That said sale was openly, fairly and duly made through Messrs. Mallaby & White, auctioneers, and the property was duly struck off to the highest bidder. That thereafter the said assignee sold at public sale the individua), estate of Henry Yan Geider, consisting of six lots of land at Fort Lee, New Jersey, to Benjamin W. Jones for $200, he being the highest bidder at such sale. That the course pursued by the assignee in the disposal of the stock and assigned estate was in the best interest of the creditors.” There is no evidence tending to show that these sales were not duly advertised and fairly conducted, nor that any of the property was sold for less than its value. The fact that this property was bid in by third persons in the interest and for the benefit of the wife of one of the assignors is, in the absence of evidence that the sale was collusive, or that the property brought less than its worth, but slight, if any, evidence that the assignment was made with a fraudulent intent. There is no evidence that Mrs. Yan Geider did not pay the full value of the property from her own means. If she did she had the same right to purchase that any person had.

We think that the finding, that the assignment was made in good faith, and not with intent to defraud creditors, is' sustained by the evidence, and the judgment should he affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Ernest St. George Lough and Another, Appellants, v. A. Emilius Outerbridge, Adolphus J. Outerbridge and The Quebec Steamship Company, Respondents.

      Ocean freight rates — condition attached to a low rate — absence of discrimination.

    A common carrier on the high seas, whose duties are simply those imposed by the common law, has a right, on lowering its freight rates in competition with another carrier, to require, as a condition of such lower rate, that shippers shall send by its line all their freight for the competitive port of destination during the week of loading, and when this condition is imposed upon all shippers alike, an action does not lie to restrain the carrier from charging the regular higher and not unreasonable race to a shipper who does not comply with the • condition attached to the lower rate.

      Appeal by tbe plaintiffs, Ernest St. George Lough and Robert H. Burrows., from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of the city and county of New York on the 6th day of January, 1893, upon a decision of the court rendered at the New York Special Term.
    This action was brought to obtain a permanent injunction restraining the defendants from charging the plaintiffs higher rates for carrying goods than were charged to other shippers.
    • The plaintiffs are partners, under the firm name of G. E. Lough & Co., engaged in business at the city of New York, as export commission merchants, shipping goods to the Windward islands.
    The individual defendants are engaged in business in the city of New York, under the firm name of A. E. Outerbridge & Co., and are the agents of the Quebec Steamship Company, a Canadian corporation, which now is, and for nineteen years last past has been, engaged in carrying passengers, the mails and merchandise, between the city of New York and the Windward islands. It has employed five or six iron steamers of the highest class in its business, and, during the year 1892, a vessel left New York once in ten days. About six weeks is required to make a trip from New York to the islands and return. Yessels sailed from New York on days advertised without reference to the quantity of cargo shipped.
    Eor seven years prior to the commencement of this action, the El Callao, a British steamer, has been engaged in carrying passengers and freight between New York and Cuidad Bolivar, a port in Yenezuela. Early in 1892 this steamer began carrying freight from New York to Barbados, at which port she stopped on her regular trips to and from Cuidad Bolivar. She sailed from New York at intervals of five or six weeks, and her freight to Cuidad Bolivar was the principal feature of her business, but such space as was not required for goods shipped to the latter port she filled with merchandise for Barbados and other islands on her route.
    On two occasions when the El Callao was loading at New York for Barbados, the defendants reduced the regular rates of freight from New York to Barbados from forty to twenty-five cents per barrel, to such shippers as sent all their freight during that week by the defendants’ line. In February and June, 1892, when the
      El Oallao was loading for Barbados, the plaintiffs demanded that the defendants should carry by one of its steamers freight from New York to Barbados for twenty-five cents per barrel. This the defendants refused to do unless the plaintiffs would agree to ship all their freight sent during the week of the sailing of defendants’ steamer by its line.
    The defendants have uniformly charged forty cents per barrel to all shippers upon all occasions, except when a steamer of the defendants and the El Oallao left New York during the same week. Forty cents per barrel is found to be a fair and just rate, and twenty-five cents per barrel is not profitable for the carrier.

      Ekarts, Ohoate c§ Beaman, for the appellants.

      Butler, Stillman & ELubba/rd, for the respondents.
   Follett, J.:

Prior to December, 1891, the established rate of freight from New York to Barbados was fifty cents per barrel, but in that month the defendants reduced the charge to forty cents, which remained' the regular rate up to the time when this action was begun. The uncontradicted evidence is that forty cents is a barely paying rate, and it is found as a ■ fact that this rate was fair and just and afforded a bare subsistence to vessels carrying at such rate.” It was also testified on the trial and was not contradicted that twenty-five cents is not a profitable rate, because we pay thirteen cents a barrel for the privilege of putting it ashore at Barbados and four cents a barrel for putting it on board here.”

The court found that the rate of twenty-five cents per barrel was not profitable.” In February and in June, 1892, the El Callao made the rate thirty cents per barrel. On Monday, February 29, 1892, the Cosmopolitan, one of defendants’ steamers, sailed from New York to Barbados. During the week before the El Oallao was taking freight for the same place. The plaintiffs were the shipping agents of James H. Innis, and one of them testified that on the twenty-fifth of February he asked the defendants to carry, by the Cosmopolitan, 3,S00 barrels to Barbados for twenty-five cents.

. This the defendants refused to do unless the plaintiffs would agree not to ship by the El Oallao, which were the terms given to all other shippers.

L. Burrows (one of the plaintiffs) said, that “James H. Innes'is the only person we are shipping goods to Barbados to, by the El Oallao; in other words, he takes up the whole space, he is responsible alone and he has nobody else with him.” Thus it appears that the plaintiffs furnished all the freight to the El Oallao for which it had space at thirty cents per barrel, and demanded that the defendants should carry the remainder of their freight, by the OosmojoolÁtcm, at twenty-five cents per barrel.

On Saturday, June 4,1892, the Trinidad, one of the defendants’ steamers, sailed from New York for Barbados, and during the week previous the El Oallao was taking freight for the same place. "William P. Lough, one of the plaintiffs testified:

“ Q. Do you know whether you took all the room that there was in the El Oallao, available, for Barbados in Februaiy and June ? A. I believe we did. It was a usual thing for us to do that, we filled up the available space.” “ The rates that we were paying on the El Oallao for Barbados were thirty cents per dry barrel. That was so in Februaiy, as well as in June.”

After exhausting the capacity of the El Oallao, the plaintiffs demanded that the defendants should carry 1,750 barrels to Barbados for twenty-five cents, which they refused to do, unless the plaintiffs would ship all their freight by the defendants’ line.

The plaintiffs’ evidence is, that they furnished the El Oallao in February and in June, with all the freight it could carry to Barbados at thirty cents per barrel, its rate, and then insisted that the defendants should take the remainder of their merchandise at twenty-five cents per barrel. The evidence produced by the plaintiff tended to show, and the fact is undisputed, that the defendants carried for twenty cents per barrel only in case the assignor would send all of his freight by their line, and the plaintiffs testify that the same terms were offered to them.

On such a state of facts there is no foundation for the position that the defendants discriminated against the plaintiffs or against any shippers, as the same terms were offered, plaintiffs as were given to all.

A common carrier has the right to charge different sums for the transportation of goods on different occasions. The defendants had the right to carry goods at twenty-five cents per barrel or for any less sum, and to establish reasonable conditions upon which they would carry for that price. The condition that all of the consignor’s freight, which was shipped during the week of loading, should be sent by defendants’ line, if the twenty-Jive-cent rate was given, was not an unreasonable one.

The defendant corporation is a common carrier on the high seas, open to all, and it has never acquired any rights by the exercise of the power of eminent domain, and its duties are simply those imposed by the rules of the common law. It had the right to compete with the El Gallao for the carriage of freight, and offer such prices as it saw fit, and so long as it offered the same terms to all shippers, none have a legal cause for complaint.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Follett, J.: Van Brunt, P. J.:

text:
    Mary Ann Campbell, Plaintiff, v. William Morgan, Defendant.

      Delivery of a conveyance of land to a third party, for the grantee on the grantor's death — a deed and not a will.

    An instrument was executed under seal and acknowledged, whereby the owner in fee of premises undertook, for a good consideration, to “give, bequeath and convey ” the same, with reference to an accompanying paper for a full description, to a person named; the instrument was to take effect on the maker’s death, and was delivered by him to a third party for delivery to the grantee named therein at 'the time stated, and was, on the maker’s death, delivered to the grantee and recorded.

      3eld, that the instrument was a deed and not a will, and conveyed tp the grantee a good title in fee, which a party who had contracted to purchase the premises from the grantee was bound to accept.
    Submission of a controversy pursuant to section 1279 of the Code of Civil Procedure.
    On the 30th day of November, 1850, William Jarvis and Eunice B., his wife, conveyed to Peter Broadfoot, by a warranty deed dated that day, and recorded December 30,1850, in the clerk’s office of the county of Westchester in Book 155 of Deeds, page 298, the fee of a lot of land in the then town of West Farms, 117 feet and 8 inches long by 100 feet in width. The grantee entered into possession of the lot, resided thereon November 24, 1880, and continued to reside thereon until his death. Tie never parted with the title, or any interest therein, until the execution of the instrument dated November 24, 1880. He died intestate April 16, 1881, leaving no descendants, but leaving several collateral relatives entitled to inherit any realty of which he died seized.
    Mary Ann Campbell was born March 18, 1847, and in 1853 she was adopted by Peter Broadfoot, and thereafter, and until her intermarriage with James W. Campbell on the 20th day of April, 1891, was called Mary Ann Broadfoot. The adoption was not in the mode provided by the statutes of this State, but she lived in the family with Peter Broadfoot until his death, and was treated as an adopted child. July 11, 1866, the wife of Peter Broadfoot died, and thereafter and until his death the adopted child lived with and cared for him, acting as his housekeeper and nurse until his death. November 24, 1880, Broadfoot signed, sealed, and December 7, 1880, acknowledged and delivered to Andrew Milligan, an instrument of which the following is a copy:
    “Broadway, Twenty-fourth Ward, i
    “New York City, Nov. 24th, 1880. j
    “ This document setteth forth that I Peter Broadfoot, in my seventy-seventh year of sound mind and memory, do in consideration of the fact that my adopted daughter Mary Ann Broadfoot, has, since the death of my beloved wife, been my house-keeper, and been most devoted and self-sacrificing in her efforts to minister to my wants and comfort; and by her uniform kindness and companionship has done much to make my life pleasant and enjoyable. And also in consideration of the fact that were she so minded she could in law and equity claim in compensation for her services to me from the year 1866 until the present time :
    “ Therefore, for these and other reasons, I do give, bequeath and convey to my adopted daughter, the said Mary Ann Broadfoot, the house and lot of ground which we now occupy, together with the entire premises and all the real and jiersonal property of every kind and name, to have and to hold for her own personal use and to dispose of in such manner and time as she may please.

      “ A full description of tlie property herein conveyed will be found in the deeds accompanying this document (except tlie personal) which are signed and sealed in one 'package. And be it known and understood that this conveyance does not come into force until after my death and funeral, and that the package be not opened or this document put on record before my funeral has taken place.
    “ I hereby appoint my friend, Andrew Milligan, of 82 Third Ave., New York city, to be the custodian of these papers and see that their provisions are duly complied with.
    “ Given under my seal and signature this 24th day of November, 1880.
    “ PETER BROADFOOT. [l. s.]
    '“ "Witnesses:
    “ Andrew Milligan, 82 3rd Ave. (Seal).
    “State oe New York, •City and County of New York, i j ss'

    “ On this seventh day of December, in the year one thousand ■eight hundred and eighty, before me personally came Peter Broad-foot, to me known and known to me to be the individual described in and who executed the foregoing instrument, and acknowledged that he executed the same.
    “WM. H. RIBLET,
    “ Notary Public (No. 1) City and County of New York.

    “ 3d Ave. Cor. 9th St.”
    When this instrument was executed, it and the deed from Jarvis to Broadfoot were sealed in an envelope and delivered to Milligan with directions to deliver them to his adopted daughter after his funeral, which was done, since which time she has remained in the peaceable possession of the lot, claiming title thereto in fee .simple under the foregoing instrument, which was recorded May 3, 1881, in the office of the register of the city and county of New York, in Book 1594 of Deeds at page 346.
    December 29, 1892, the parties to this submission entered into a written executory contract, by which Mary Ann Campbell agreed to sell, and William Morgan agreed to purchase, the premises described in said deeds for §5,000. One hundred dollars of the purchase price was paid on the execution of the contract, and the remainder was agreed to be paid on the 13th day of J anuary, 1893,. when Mary Ann Campbell was to convey an unincumbered estate-in fee simple in the premises to Morgan. Between December 29,. 1892, and January 13, 1893, Morgan necessarily expended ninety-four dollars and twenty-five cents for an examination of the title-which was reported to be defective, and on that ground he refused to take the deed tendered.

      James JR. Jñíarmn, for Mary Ann Campbell.

      G. JDe Witt Olooke, for William Morgan.
   Follett, J.:

The question submitted is whether the instrument above set forth conveyed the premises in fee simple to Mary Ann Campbell ? If the question is answered in the affirmative, judgment is to be rendered in her favor, that Morgan specifically performed his contract, but if it is answered in the negative, judgment is to be rendered in his favor against Mrs. Campbell for $194.25, and interest thereon from January 13,1893.

The instrument was executed by the owner of the fee of the subjeot of the grant, a definite grantee is named, and the instrument has sufficient parties to constitute a legal conveyance. The consideration recited is a valuable one and sufficient to support a grant. The instrument contains sufficient words of conveyance, “ I do give, bequeath and convey to my adopted daughter * * - * to have and to hold for her own personal use and to dispose of in such manner and time as she may please.” This language carries the fee to the grantee named. The words “ give and bequeath,” are surplusage and do not affect the validity of the instrument as a conveyance, which is a deed and not a will. The subject of the grant is described as follows: The house and lot of ground which we (the grantor and grantee) now occupy, together with the entire premises and all the real and personal property of every kind and name, to have and to hold for her own personal use, and to dispose of in such manner and time as she may please. A full description of the property herein conveyed will be found in the deeds accompanying this document (except the personal), which are signed and sealed in one package.”

This description is sufficiently definite to convey the title to the lot in question as against the grantor and his heirs. (Jackson v. De Lancey, 11 Johns. 365; affd., 13 id. 535; Jackson v. De Lancey, 4 Cow. 427-432; Pond v. Bergh, 1 Paige, 140-156; Thayer v. Fenton, 22 N. Y. Wkly. Dig. 85; Scully v. Sanders, 12 J. & S. 89; Wilson v. Boyce, 92 U. S. 320; Prettyman v. Walston, 34 Ill. 175; Bird v. Bird, 40 Me. 398; Harmon v. James, 15 Miss. 111; Whitney v. Buckman, 13 Cal. 536; De Leon v. Higuera, 15 id. 483; Dyne v. Nutley, 14 C. B. 122; 1 Dart V. & P. [6th ed.] 602; 3 Wash. R. P. [4th ed.] 399; 1 Jones Mortg. §§ 65, 66.)

The delivery was sufficient to vest the title in the grantee. (Hathaway v. Payne, 34 N. Y. 92.)

In the case last cited, a deed was executed upon the stipulation, “ That the said deed shall not be delivered to him, the said G. R. Payne (the grantee) during the lifetime of the said G. Payne and Phebe Payne (the grantors), or either of them, but shall be and remain in the possession of Edward Herrendeen, of Farmington, or his executors, administrators or assigns, to be by him the said Edward Herrendeen or his executors or administrators delivered to him, the said G. R. Payne, or to his heirs, executors or administrators, immediately after the decease of him the said G. Payne and Phebe Payne, his wife, as a good and valid conveyance of all the lands therein contained.”

The deed was executed in November, 1839. The grantor died November 23, 1848 ; his wife Phebe died April 3, 1854. The grantor left a last will by which he empowered his executors to “ convey the real estate of which he should die seized.” The executors on the 22d of June, 1854, after the death of Phebe, granted the land described in the deed of November 25, 1839, to one Hathaway, who brought trespass against Gideon R. Payne. A judgment was recovered by the plaintiff at Circuit, and affirmed by the General Term, but was reversed by the Court of Appeals, where it was held that the delivery by Herrendeen to Gideon R. Payne, after the death of the grantor and his wife, vested the title in the defendant. (See, also, Nottbeck v. Wilks, 4 Abb. 315; Grymes v. Hone, 49 N. Y. 17-22; Hunter v. Hunter, 17 Barb. 25; Crain v. Wright, 36 Hun, 74; affd., 114 N. Y. 307; 3 Washb. R. P. [4th ed.] 301.)

The question submitted must be answered in the affirmative, and we hold that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract.

Van Brunt, P. J.:

I concur. That a deed may be delivered • by a grantor to a stranger to be delivered to grantee after death of grantor, such second delivery relating back to the first delivery, seems to have been long settled. (Ruggles v. Lawson, 13 Johns. 285; Hatch v. Hatch, 9 Mass. 307; Sheppard’s Touchstone, 58, 59, marginal paging; 2 Washb. on Real Property, p. 586, marginal paging.)

O’Brien, J., concurred.

The court holds that Mary Ann Campbell held the absolute fee of the land at the time she entered into the contract with Morgan, who must specifically perform his contract.


author: Eollett, J.: Van Brunt, P. J.: O’Brien, J.:

text:
    Sarah Rainey, as Administratrix, etc., of John H. Rainey, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Injury at a railroad grade crossing — violation of a city ordinance — failure to operate gates at night — evidence as to ringing of locomotive bell — contributory

    In an action against a railroad company to recover damages for a personal injury, proof of the violation of a city ordinance "by the railroad company does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence.
    A city ordinance required a railroad company to maintain gates at its grade crossings and to attend them at all times when trains were passing and close them at least one minute before a locomotive passed. In an action against the railroad company to recover the damages resulting from a person’s death, alleged to have been caused by one of its trains at a grade crossing, it was shown ^ that the gates were left open, without the presence of a gateman, between seven at night and seven in the morning, between which hours the accident occurred.

      Held, that this circumstance was not sufficient to sustain a judgment on the ground of negligence based upon it, where there was no evidence that the trains were run at an unusual rate of speed; that the vicinity was thickly inhabited, or that the highway crossing was much used in the night-time.

      The testimony of a witness that he did not near a locomotivo beil ring on approaching a crossing is entitled tc nc weight as against affirmative evidence that it was rung, where it appears that he was standing, at the time testified to, on the crossing within three or four feet of the track, but his attention was not drawn to the approaching train by :ts headlight or by its itoise.
    The following requests to charge were presented by the defendant, the railroad company, and were refused-
    If the deceased, “when he stood at a point ten1 or fifteen feet distant from the nearest ran, or at any point between thai and the rali and before he entered upon the track, couid nave seen the approacning train, the plaintiff cannot recover; ” and,
    If the fact was known to the deceased “that the gates were not' operated after seven p. m., he was not entitled to rely, in approaching the track for the purpose of crossing or' attempting to cross, upon any protection from the gates.”

      Held, that under the evidenc» in the case, it was error to refuse to charge as requested.
    Appeal by tbe defendant, the New York Central and Hudson. River Railroad 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 30th day of November, 1892, upon a verdict rendered at the New York Circuit, and from an order entered on. the 6th day of December, 1892, denying the defendant’s motion for a new trial, made upon the minutes.

      D. W. Tears, for the appellant.

      Wales F. Severance, for the respondent.
   Eollett, J.:

This action was brought to recover damages sustained by the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s employees in the management of a. train when passing a highway crossing.

In the twenty-third or twenty-fourth ward of the city of New York the defendant’s railroad crosses at grade a highway known as-the Sjrayten Duyvil road, and the crossing is called the Spuyten Duyvil crossing. At this place the railroad consists of two tracks-of the gauge of four feet and seven-tenths of a foot. The two-tracks are eight feet and one-tenth of a foot apart, making the distance between the outermost rails of the track seventeen feet and a-half. The highway extends along the westerly side of the railroad. for some considerable distance, then crosses it and extends along the easterly side of the railroad. The next crossing towards New York city is Riverdale avenue crossing, which is 1,470 feet northerly of Spnyten Duyvil crossing. The railroad above and below Spuyten Duyvil crossing is very crooked, so that trains bound for New York run nearly north for some little distance. It is asserted on the part of the plaintiff that her intestate, John H. Rainey, was struck at this crossing between eight and nine o’clock in the evening of January 4, 1892, by a New York bound train. About nine o’clock of that evening he was found lying with his skull fractured about 150 feet north of the Spuyten Duyvil crossing, on the east side of the railroad, near a fence. He was lying on his back, with his head towards the crossing last mentioned, and with his feet towards Kingsbridge. He was unconscious, and died within two days without regaining consciousness. The negligence sought to be established on the trial consisted of two omissions on the part of the defendant: (1) Neglecting to comply with an ordinance of the city of New York requiring the defendant to maintain gates on both sides of its grade crossings, and to attend them at all times when trains were passing, and close them at least one minute before a locomotive passed over the crossing. (2) Neglecting to ring the locomotive bell on approaching the crossing.

It was proved, and was not disputed, that defendant maintained gates at this crossing, which were opened and closed, as required, between the hours of seven o’clock in the morning and seven o’clock in the afternoon, but that they were left open without the presence of gatemen between the hours of seven o’clock in the evening and seven o’clock in the morning.

Proof of the violation of a city ordinance does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522; Knupfle v. Knickerbocker Ice Co., 84 id. 488; Moore v. Gadsden, 93 id. 12; Connolly v. Knickerbocker Ice Co., 114 id. 104; McRickcard v. Flint, 114 id. 222.)

The evidence in the case at bar simply shows a violation of the ordinance of the city, but there is no evidence that the trains were run at an unusual rate of speed, that the vicinity was thickly inhabited, or that the highway crossing was much used during the night-time. The fact that two of the trains were one minute late is not important, and the evidence is quite conclusive that there was a clear view of trains approaching from either direction for 600 or 700 feet. The evidence in the record is not sufficient to sustain a judgment on the first ground of negligence, above stated.

Only one witness, Robert McGregor, testified to seeing the accident. He and Rainey had been neighbors for several years. He testified that about four or five o’clock in the afternoon of January twenty-fourth, he went to Rainey’s house, stayed awhile, and they then went out to walk and entered McArdle’s saloon, which is about 200 yards from the crossing on the west side of the railroad, the decedent’s house being on the east side thereof and within 1,000 feet of the crossing. The witness says he left Rainey at the saloon, but seems quite uncertain as to the time. He testified that his house was about ten minutes’ walk away, and that he reached his home at six o’clock, or eight or nine o’clock. He says that he removed part of his clothing, and lay on a bed until about eight o’clock, when he went out by appointment to meet Rainey. .He says that the night was dark; that he went down to the crossing on the east side of the railroad, and was about to cross to the west side, when he saw Rainey coming towards him from the west. That he, the witness, stood about three or four feet from the east, rail of the east track, and that Rainey was about thirty feet away on the west side of the track, which places him about ten feet west of the outer rail of the west track. Trains bound for New York run on the west track. The witness testified that Rainey, when near the track, stopped and looked both ways, started to cross, and, just as he had passed the east rail of the west track, a New York bound train struck him; that he was whipped out of my sight.” The witness testified: “ I did not hear any bell rung on the engine when it went by, or as it approached the crossing. My hearing is pretty fair. There was no warning whatever given of the approach of that train that I heard. The crossing was not guarded by anybody at the time of the passage of that train. There was no watchman or gateman there.”

This was the only evidence offered to sustain the second alleged ground of negligence above stated. The witness does not attempt to identify the train which caused the injury. Defendant’s telegraphic operator, who was stationed at that time in the Spuyten Duyvil tower, testified that the only trains that passed over the road bound for New York, between eight and nine in the evening of January twenty-fourth, were No. 222, which passed at eight twenty-one, one minute late ; No. 6, which passed at eight thirty, one minute late, and No. 30, which passed at eight fifty-eight.

The conductor and fireman of No. 222 testified that this train did not strike anyone, to their knowledge, and the fireman testified that the bell was rung all the way between Spuyten Duyvil station and Kingsbridge station, and while passing the crossing. The conductor, engineer and fireman of No. 6 testified that their train did not strike anyone, to their knowledge, and the engineer and fireman testified that the bell was rung as they approached ahd passed the crossing. The conductor, engineer and fireman of No. 30 testified that their train did not strike anyone, to their knowledge, on that trip, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing.

The accident happened on the 24th of January, 1892, and the trial was had November twenty-ninth of the same year. Thus stood the evidence bearing upon the second alleged ground of negligence.

“As against positive affirmative evidence of credible witnesses of the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it. It must appear that their attention was directed to the fact at the time.” (Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 135; McKeever v. N. Y. C. & H. R. R. R. Co., 88 id. 667; Stitt v. Huidekopers, 17 Wall. 384; Whart. Ev. § 415.)

The witness McGregor, who testified that he did not hear the bell ring, stood on the crossing within three or four feet of the track, but his attention was not drawn to the approaching train by its headlight or by its noise. His testimony, under such circumstances, that he did not hear a bell is entitled to no weight. Section Y of chapter 282, Laws of 1854, which provides that a bell shall be rung or a whistle sounded on locomotives for at least eighty rods before crossing a highway or street, and makes railroad corporations liable for all damages sustained by any person by reason of neglecting this duty, was repealed by chapter 593, Laws of 1886. (Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y. 496; Kane v. N. Y., N. H. & H. R. R. Co., 132 id. 160.) The evidence of this witness is, to say the least, extraordinary. He and Rainey were neighbors and friends and had lived near each other for several years. He testified that he saw the train strike Rainey and carry him away, and without going to look for him he went home, not by the usual route, but by a circuitous one, took off a part of his clothing and went to bed; that he might home slept, and while in bed his son informed him that Rainey had met with an accident; that he then went to Rainey’s house between ten and eleven o’clock and saw him. Ve will give the witness’ explanation of his most singular conduct in his own language.

The reason that I done that was that I got frightened. I thought the man was all cut up, I waá afraid. Not only that, but I was afraid of meeting anybody by going the regular road. To avoid meeting any person or seeing any one I passed over the track and went home the back way.”

This is so contrary to the usual conduct of men that it is incredible. The evidence of the absence of contributory negligence on the part of the decedent is all furnished by this* witness. He testified that as he stood on one side of the railroad and Rainey on the other he (Ramey) looked first towards Spuyten Duyvil, I think he did; I am not sure I saw him stand and look up and down the track; I think he looked first towards Spuyten Duyvil and then turned his head towards Forty-second street, or Riverdale crossing. At that time I did not see the train; I am quite sure of it. I neither saw nor heard it at that time.”

Upon the important question of the freedom of the plaintiffs intestate from contributory negligence, the senses of the witness were all alert. He brought the case within the decisions, but lie was not sufficiently attentive to see the headlight or hear the noise of the approaching train. Could he or Rainey, had they been attentive, have seen or heard the train? The witness testified, that standing where Rainey stood, the approaching train could have been seen in daylight not more than 100 or 150 yards, but if you were standing on the other side (where the witness stood), you couldn’t see it fifty yards. At another place in the record the witness testified that he might have .heard the train when it was within one or two hundred feet from him. The witness does not claim to have made any test as to the distance a train could be seen from the crossing. A map is in evidence'which shows that the track is substantially straight for some distance on both sides of the crossing. Haviland, an engineer sworn for the defendant, testified that standing on the crossing ten or fifteen feet west of the westerly rail, that a train could be seen 750 feet away, and that standing thirty-four feet west of the rail an approaching train could be seen 597 feet from the crossing. That the nearest building was 350 feet away from the crossing. Curtis, another engineer, testified to the same state of facts. Under the evidence as it appears in the record, the plaintiff failed to sustain the burden which was upon her of showing that her intestate did not contribute to the accident. It may be observed that the decedent was thirty-eight years old, and it was not shown that his eyesight or hearing had been impaired. Upon the evidence as it stood, the court erred in refusing to dismiss the complaint. The court was asked to charge:

“ I ask your honor to charge that if John Rainey, when he stood at a point ten or fifteen feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train, the plaintiff cannot recover.

“ The Court.— I refuse to charge that, because I think that calls for an expression of opinion on the part of the court as to a fact. I charge the jury that that is a circumstance which they may take into consideration in making up their minds as to whether John Rainey was or was not guilty of contributory negligence.

“Defendant’s Counsel.— I except to your honor’s refusal to charge as requested, and to the qualification.

“ Defendant’s Counsel.— I ask your honor to'charge that if the fact was known to John Rainey that the gates were not operated after seven p. m., he was not entitled to rely, in approaching the track for the purpose of crossing, or attempting to cross, upon any protection from the gates.

“The Court.— I refuse to charge further upon that subject than I have already charged. Defendant excepts.”

Both requests should have been granted. There might be circumstances which would make it proper to refuse the first request, but under the evidence in this case it was not. On the second proposition the court had given no instructions to the jury in its charge. No allusion had been made to the fact that Rainey had lived at Spuyten Duyvil for nine years, and in the Riley house for eight months, and must or might have known within what hours the gates were operated.

The judgment and order should be reversed on the exceptions and on the facts, and a new trial granted, with costs to the appellants to abide the event.

Van Brunt, P. J.:

I concur. There is no question but that McGregor did not see the accident, and there is, therefore, no proof in the case that the deceased was free from contributory negligence.

O’Brien, J.:

I concur in result upon the ground of the refusals to charge pointed out in the opinion. Upon the case I think the question of plaintiff’s right to recover was properly submitted upon conflicting evidence to the jury, and were it not for the other errors pointed out I would favor an affirmance of the judgment.

Judgment and order reversed on the exceptions and on the facts, and a new trial granted, with costs to the appellants to abide the event.


author: Eollett, J.:

text:
    Francisco Roca and Arthur Henriques, Respondents, v. Anna D. Byrne, as Administratrix, etc., of Daniel Byrne, Deceased, Appellant, Impleaded with the Corn Exchange Bank.

      Right of a principal to reclaim money received by his agent.

    The relation, of debtor and creditor is not inconsistent with that of principal and agent, or with the claim that money received by a debtor from a creditor was received in a fiduciary capacity.
    When an agent receives money or property from his principal, it may be reclaimed, as between the parties and before other persons have, in good faith, acquired rights therein, so long as the money or the avails of the property can be traced.
    A foreign firm had been in the custom of remitting bills of exchange to a commission merchant in New York, the avails of which he deposited in an account in his own name in a New York bank, in regard to which he accounted with the firm at intervals; the commission merchant died, insolvent and indebted to the firm, and having on deposit in his bank account the avails of certain of the firm’s bills of exchange; after his death, certain drafts were received from the firm, which were appropriated hy some one assuming to act for the decedent’s estate and the avails were deposited to the credit of the said account.
    The firm thereafter brought an action against the decedent’s representative and the hank, where the avails of certain of the firm’s bills of exchange then were to the credit of the decedent’s account, to compel the application of so much thereof as was necessary to pay the sum due from the decedent to the firm, on the theory that the hills of exchange and their avails were received in a fiduciary capacity.

      Held, that a judgment awarding the plaintiffs the amount due them, to he paid hy the hank out of the account, was correct.
    Appeal by the defendant, Anna D. Byrne, as temporary administratrix of Daniel Byrne, deceased, from a judgment of the Supreme Court, rendered at the New Yorlc Special Term,' and entered in the office of the clerk of the city and county of New York on the-23d day of January, 1893, in favor of the plaintiffs, in an action brought against the said defendant and the Corn Exchange Bank.

      Benjamin S. Harmon, r-r the appellant.

      Michael II. Cardoso, for the respondents.
   Eollett, J.:

"When the transaction out of which this action arose, occurred, the plaintiffs were engaged in business at Guayaquil, Ecuador, under the firm name of Roca & Jlenriques, and Daniel Byrne was a commission merchant engaged in business in the city of New York. It is conceded that in February, 1888, Byrne became the agent of the plaintiffs at said city, and so continued until August 2, 1891, when-he died. The plaintiffs- were accustomed to consign merchandise to Byrne for sale, the proceeds of which were credited to the account of the principals. Byrne also purchased goods at the city of New York for, and shipped them to, the plaintiffs, which were paid for by the avails of goods consigned to and sold by Byrne, and by bills of exchange sent to him by the plaintiffs. The plaintiffs were also accustomed to draw bills on Byrne, which he accepted, paid and charged to their account, and interest was charged on the balances against whichever party happened to be the debtor. Every six months the account was settled. On June 30, 1891, a settlement wa3 had of all unsettled matters, and a balance of $24,953.63, was found to be due to Byrne. Six bills amounting to $9,721.58, drawn by plaintiffs, accepted by Byrne and charged in the account of June thirtieth, fell due after that date, but were not paid by Byrne, and were thereafter paid by the plaintiffs, which reduced their indebtedness to him to $15,232.05. Between June 20 and August 1, 1891, the plaintiffs sent Byrne nine bills drawn on various persons and firms amounting to $18,313.69, which he and his representative received and collected, so that the balance due from his estate when this action was begun was $3,081.64. During the period covered by the transactions involved in this litigation, Byrne kept an account with the Corn Exchange Bank, to the credit of which all his own money as well as the avails of merchandise and bills of exchange received from the plaintiffs were deposited, and against which he drew for his own account and benefit, and also in conducting the business of the plaintiffs. On July 25, 1891, Byrne received from the plaintiffs two bills of exchange amounting to $2,474.06 which on that day he deposited in said bank to the credit of his account. On July 30, 1891, he received from plaintiffs a bill of exchange for $2,000, which on the same day he deposited in said bank to his credit. On August 2, 1891, Byrne died insolvent. On August 5, 1891, some person claiming to act for the estate of Byrne received from plaintiffs a bill of exchange for $440, the avails of which, amounting to $439.61, were on the same day deposited to the credit of said account in said bank, and on August 31, 1891, some person claiming to act for the estate of Byrne received from the plaintiffs a bill of exchange for $600, the avails of which were on the same day deposited to the credit of said account in said bank. The bills described, aggregating $5,513.67, were four of the nine bills which aggregated $18,313.69, above mentioned.

This action was brought to compel the application of so much of said bank account as was necessary to pay the sum due from Byrne to the plaintiffs, on the theory that the bills of exchange and their avails were received in a fiduciary capacity.

It is alleged in the complaiut and admitted by the answer that the avails of the four drafts were deposited in the bank at the dates mentioned, and it was conceded on the trial that when this action was begun $4,514.05 of the money derived from the four bills of exchange was ou deposit to the credit of said account. The action was defended on the theory that the relation between the parties was that of debtor and creditor. That this relation did exist is quite apparent. Indeed, it is a necessary foundation for the action. But the relation of debtor and creditor is-not inconsistent with the relation of principal and agent, and with the position that the sum owing was received in a fiduciary capacity. (National Bank v. Ins. Co., 104 U. S. 54.) The plaintiffs alleged in the complaint that Byrne was their agent in these matters, which allegation was admitted by the answer. It was also conceded by the written stipulation signed by the parties, and introduced in evidence upon the trial, that Byrne was the agent of these plaintiffs from February, 1888, down to the time of his death.

How it- can be claimed in the face of these admissions that Byrne Was not acting in a fiduciary capacity, and that he did not receive these various sums to be expended in the business of the plaintiffs, is quite impossible to see.

The rule is well settled that when an agent receives money or property from his principal, that they may be reclaimed, as between the parties, and before other persons have, in good faith, acquired rights in them, so long as the money or the avails of the property can be traced. (Knatchbull v. Hallett, 13 Ch. Div. 696; Pennell v. Deffell, 4 De Gex, M. & G. 372; National Bank v. Ins. Co., 104 U. S. 54; Van Alen v. American National Bank, 52 N. Y. 1; Newton v. Porter, 69 id. 133; Matter of Cavin v. Gleason, 105 id. 256.)

In this case it was conceded that the avails of the' four bills of exchange sent by the plaintiff to Byrne were credited to the account, and that more than $4,500 of the moneys so derived were in the bank to the credit of the account when this action was begun. The last two drafts, amounting to $1,039.61, were received after the business relations between the plaintiffs and Byrne were dissolved by the latter’s death, and were appropriated without right by some one assuming to act for Byrne’s estate, and the avails deposited to the credit of this account.

The judgment awarding the plaintiffs the amount due them, to be paid by the bank out of the account, was correct and should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Edgar L. Ridgway, as Temporary Administrator of the Estate of William L. Muller, Respondent, v. Charles P. Bacon, Appellant, Impleaded with Others.

      Orden' on demurrer, and interlocutory judgment — appeal — defective recM'd.

    An appeal from an order overruling a demurrer, and from the interlocutory judgment entered thereon, must be stricken from the calendar when the record does not contain the judgment, and does not show that the order and judgment have been entered.
    A recital in a notice of appeal, that it is from an interlocutory judgment entered on a day named, is not sufficient evidence of the judgment, or of its entry, to enable an appeal therefrom to be heard.
    Appeal by the defendant, Charles P. Bacon, from an order of the Supreme Court, made at the New York Special Term, overruling his demurrer to the complaint, and from the interlocutory judgment, stated in the notice of appeal to have been entered upon the order on the 28th day of November, 1892.

      Charles Donohue, for the appellant.

      Sumner C. Chandler, for the respondent.
   Follett, J.:

The appellant demurred to the complaint upon two grounds: (1) That causes of action have been improperly united. (2) That the complaint does not state facts sufficient to constitute a cause of action.

The Special Term ordered: “ That said demurrer be overruled and that plaintiff have judgment thereon for the relief demanded in the complaint; but with leave to the defendant to withdraw his demurrer and put in an answer within twenty days, on payment of costs as taxed herein by the clerk of this court.” This order is dated October 4, 1892, but when it was entered does not appear. An order cannot be appealed from until after it is entered. (Matter of The N. Y. Cen. & H. R. R. R. Co., 60 N. Y. 112.)

December 15,1892, the defendant appealed “ from the order overruling the demurrer and the interlocutory judgment entered herein upon the order of Mr. Justice Ingraham, on the 28th day of November, 1892, and from each and every part thereof.” No interlocutory judgment is contained in tbe record, and the only evidence-that we have that one has been entered is the recital in the notice of appeal. This is not sufficient, and the court cannot review a judgment not before it. An appeal does not lie from an order sustaining or overruling a demurrer before the entry of an interlocutory judgment thereon, when both may be appealed from. (Cambridge Valley National Bank v. Lynch, 76 N. Y. 514; Welch v. Platt, 32 Hun, 194; Miller v. Sheldon, 15 id. 220; Lacustrine F. Co. v. Lake Guano, etc., Co., 16 id. 484; Garner v. Harmony Mills, 13 J. & S. 148; Baylies on New Trials & App. 50.)

Hand v. Supervisors of Columbia County (31 Hun, 531) is-overruled.

The order overruling the demurrer and an interlocutory judgment, may have been entered, but, if so,' the facts are not disclosed by the record, and the appeal cannot be heard. The case should be stricken from the calendar, and leave granted the appellant to print new papers disclosing the true state of the record in this action. No motion having been made by the respondent to dismiss the appeal,, or strike it from the calendar, no costs are allowed.

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

So ordered.


author: Yan Bbunt, P. J.:

text:
    Michael H. Haffey, Appellant, v. Sarah Lynch, Respondent.

      Bale of real estate — refusal of a purchaser to accept a- deed — speculating upon, defects in a title — loss of right to compel specific performance.

    A purchaser of real estate should not be permitted to speculate upon defects in title and decline the title; and subsequently, when it appears to be advantageous, to him to accept the same, he allowed to change his entire position.
    Actions for specific performance cannot be resorted to for the purpose of obtaining an extension of time for the completion of a contract for the sale of real property.
    A purchaser of real estate refused to accept a deed because of the pendency of an action of ejectment and an incumbrance created by a notice of lis pendens, but brought an action demanding specific performance of the contract by the seller, with a deduction for the incumbrance, or else damages.
    The action of ejectment having terminated favorably to the seller before the trial of the purchaser’s action, the latter, on the trial, offered to accept a deed: according to the original contract.

      Sdd, that the purchaser could not then, long after the expiration of the time stipulated for the delivery of a, deed, he allowed to change his position and the theory of his action, hut that specific performance should he refused and the purchaser he remitted to his action for damages.
    Appeal by the plaintiff, Michael H. ITaffey, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 25th day of January, 1893, upon a decision of the New York Special Term, dismissing the complaint upon the merits.

      O. Strauss, for the appellant.

      H. II. Anderson, for the respondent.
   Yan Bbunt, P. J.:

The facts found by the learned court upon the trial of this case Were that on the 28th of February, 1889, the defendant was the owner in fee and possessed of the real property described in the complaint; that on said day she offered the same at auction and the plaintiff became the purchaser thereof for the sum of $7,800, being the highest bidder therefor, and that a memorandum of sale was on said day signed by both parties, the defendant agreeing to convey by the usual deed containing full covenants and warranty subject to certain reservations, covenants and conditions; that the plaintiff had in all things performed the terms and conditions of his contract, and had been on his part ready and willing to fulfill the same and to accept a conveyance of the property, and the defendant refused to make said conveyance under said agreement, notwithstanding the plaintiff’s frequent requests ; that such refusal was due to the fact that after said sale and before the day fixed for the delivery of the deed thereunder, an action in ejectment was commenced in this ■court against the defendant by a person claiming the ownership of the premises in question, who had filed a notice of the pendency of the action in the office of the clerk of the county of New York, and that theretofore and before the trial of the action which resulted in the judgment appealed from, the said ejectment suit was brought to trial and the complaint dismissed, and from the judgment entered thereon an appeal was taken to the General Term, which court affirmed the judgment, and no appeal from the order of the General 'Term was taken to the Court of Appeals, and the time to do so was then expired; that the plaintiff had expressed his consent at the trial of the action to accept from the defendant a conveyance of the land according to the contract of sale, and that less than three years have elapsed since the rendering of the judgment and the filing of the judgment roll in the ejectment action.

Upon these facts the court found, as conclusion of law, that the sale having been made in good faith, and a question as to the title having arisen, the defendant should not be compelled to give a warranty deed, and accordingly dismissed the complaint upon the merits of the action, with costs.

If these were all the facts which were established by the pleadings and the evidence, we should be inclined to hold that a case for specific performance had been made out by the plaintiff. But as the court may look into the evidence to support the judgment where there is no finding upon any point (Marvin v. Brewster Iron Mining Co., 55 N. Y. 547; Berger v. Varrelmann, 127 id. 293), upon examining the record in this case certain undisputed facts appear which place an entirely different complexion upon the attitude of the parties.

It appears from the complaint and also from the evidence of the plaintiff that after the discovery of the filing of the Us pendens the defendant offered to return the amount paid on deposit- and to rescind the contract, and upon the refusal of the plaintiff so to do, the defendant tendered to plaintiff a deed of the premises, stating, however, that on account of this Us pendens the same were not free of incumbrances. The plaintiff refused to accept this deed, stating as his objection that the same was so incumbered by the notice of' the pendency of the action, and then tendered the balance of the purchase money, which the defendant refused. The plaintiff then commenced this action, praying judgment that the defendant specifically perform-the agreement and'that a just deduction be. made on account of said incumbrance, and that if the defendant could not make a good and marketable title to the premises she pay to the plaintiff the amount of his deposit, auctioneer’s and exchange fees and $5,000 damages.

Under these circumstances the court held upon the previous appeal that specific performance should not be decreed, and reversed a judgment for such "performance. It is true that at the time of the previous trial, the ejectment suit was pending, but that in no manner affected the nature of the action. The plaintiff placed himself upon what he deemed his strict legal rights; and he having insisted then uj)on such strict legal rights, and he not being then entitled to a judgment of specific performance as was held upon the former appeal, he cannot now come in and say that he is willing to accept the deed which he refused, because of the happening of subsequent events. As was said upon the decision of the previous appeal, “No offer was made by the plaintiff to accept the deed simply, until after the trial of this action was ended so far as the taking of testimony was concerned. Up to that time the plaintiff had insisted upon his pound of flesh, and that was the nature of the bill of complaint filed by him, and it seems to us that it was too late for the plaintiff to change his mind upon the trial and waive conditions of the contract which he had repeatedly refused. A purchaser should not be permitted to speculate upon defects in title, and decline the title; and when it subsequently appears to be advantageous to him to accept the same, be allowed to change his entire position.”

These views are entirely consistent with the present position of the plaintiff. At the time of the bringing of this action he was not willing to accept the title, but claimed that it was defective, and he •speculated upon the defect. Having lost in such speculation he cannot now be allowed to claim the advantages of the favorable change in conditions which have occurred since the commencement of the action. Actions for specific performance cannot be resorted to for the purpose of obtaining extensions of time for the completion of contracts, and the plaintiff should be remitted to his action for damages.

The judgment should be affirmed, with costs.

O’Brien, J., concurred.

-Judgment affirmed, with costs.


author: Per Curiam r

text:
    George E. Glines, as Receiver of the Supreme Sitting of the Order of the Iron Hall, Respondent, v. The Binghamton Trust Company, as Receiver of the Supreme Sitting of the Order of the Iron Hall, Appellant, Impleaded with Others.

      Temporary receiver superseded by the appointment of a permanent receiver.

    The appointment, by a final judgment of the Supreme Court of the State of New York, of a permanent receiver of the property within this State of a foreign corporation, with power to collect and distribute the same, supersedes a prior appointment by the same court, although made in another action and in another judicial district, of a temporary receiver appointed to preserve the property of the same corporation until a final judgment for its distribution should he entered.
    Appeal by the defendant, the Binghamton Trust Company, as receiver in the State of New York of the property of the Supreme Sitting of the Order of the Iron Hall, 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 20th day of February, 1893, enjoining and restraining the said defendant, as such receiver, from interfering with the plaintiff as temporary receiver of the same Supreme Sitting.
    The Supreme Sitting of the Order of the Iron Hall is a corporation of the State of Indiana, in the nature of a mutual benefit association. The respondent, Giles E. Glines, was appointed temporary receiver of the Supreme Sitting by an order of the Special Term of the Supreme Court, held at the city of New York, in and for the first judicial district, on the 26th day of August, 1892, in an action brought by him, as plaintiff, in that district, against the said Supreme Sitting, as defendant.
    The appellant, the Binghamton Trust Company, was appointed permanent receiver of the said Supreme Sitting by a final judgment of the Supreme Court, in Broome county, in the sixth judicial district, on the 2d day of November, 1892, in an action wherein Sherman B. Mosher was plaintiff and the said Supreme Sitting was defendant. ,

      Alfred JEty, for the appellant.

      Howard H. Morse¿ for the respondent.
   Per Curiam r

By section 713 of tlie Code provision is made for the appointment of receivers before final judgment and by the final judgment. Subdivision 1 of this section provides that a receiver may be appointed “ before final judgment on the application of a party who has established an apparent right to, or interest in, the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured or destroyed.”

The object of this provision is clearly for the preservation of the property until the court, by its final judgment, shall make such disposition of it as justice requires, and appoint a receiver to carry the judgment into effect.

Subdivision 2 of the same section provides for the appointment of a receiver by final judgment. That provision is that a receiver may be appointed “ by or after the final judgment, to carry the judgment into effect, or to dispose of the property according to its direction.”

It is apparent that the appointment of the receiver by the final judgment to carry the judgment into effect or to dispose of the property, is the exercise of a different and distinct power conferred upon the court from that which is given for the purpose of preservation of the property during the jiendeney of the action; and the exercise of this final power necessarily supersedes action which has been merely temporary in its character for the preservation, and taken solely for the protection of the property until such final power is exercised.

By the final judgment in the action in Broome county, of Mosher v. The supreme Sitting of the Order of the Iron Hall, this court makes provision for the final disposition of the property in this State of the foreign corporation, and appoints the Binghamton Trust Company, the defendant herein, permanent receiver of the property, assets and funds of the defendant within the State of New York, and authorizes and directs it to collect, demand and receive, and to distribute the same among the Iversons entitled thereto, as in said decree directed. This final judgment was, therefore, the final direction of the court as to the disposition of the property, and the appointment of a receiver to carry such final judgment into effect, seems to have superseded all previous action taken for the purpose of the preservation of the property until a judgment should be entered by the court for its final distribution, including the appointment of temporary receivers to preserve the property. The order appealed from enjoins the Binghamton Trust Company, the permanent receiver, from performing the duties which were imposed upon it by the judgment appointing it; and, as it was the duty of the defendant to carry out the provisions of such final judgment, the order was erroneous.

No question is presented on this record as to a conflict of jurisdiction between different courts, as to which court shall administer the estate, botli ac cions being in the same court, the only question being as to the method by which the court shall protect and distribute this property. Therefore, many of the authorities which have been cited on this appeal have no bearing upon the question presented.

We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs, and the temporary injunction vacated.

Present — Yan Brunt, P. J., and Ingraham, J.

Order reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs, and the temporary injunction vacated.


author: Per Curiam :

text:
    The People of the State of New York ex rel. The Edison Electric Illuminating Company of New York, Appellant, v. Edward P. Barker and Others, as Commissioners of Taxes and Assessments for the City and County of New York, Respondents.

      Review of tax assessment — a general statement of personal property, submitted by a taxpayer, insufficient.

    In order that the court should interfere with a tax assessment, the party complaining must show affirmatively that he has been aggrieved.
    Such requisite proof is not furnished by merely showing, by the return to a writ of certiorari to review a tax assessment upon the value of the personal property of a corporation in New York city, that the relator had submitted to the tax commissioners a general statement, under oath, of its property, 'containing no items, or details by which its accuracy could be judged.

      The tax commissioners are not bound to accept a general statement of the value of a taxpayer’s property furnished by him, for the purposes of assessment, but have aright to judge for themselves on the subject.
    Appeal by the relator, the Edison Electric Illuminating Company of New York, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 4th day of January, 1893, dismissing a writ of certiorari brought to review a tax assessment, under chapter 269 of the Laws of 1880, and section 821 of the New York City Consolidation Act.

      O. E. Miller, for the appellant.

      G. S. Colemcm, for the respondents.
   Per Curiam :

In order that the court should interfere with an assessment, the party complaining must show affirmatively that he has' been aggrieved.

In the case at bar upon the coming in of the return to the writ the relator moved for judgment. It appeared from the return that the relator had submitted a statement 'of its property of the most genera] character, containing no items or details so that its accuracy could be judged. It is probable that large amounts were deducted in this statement as the value of patent rights, but what they were or what they were worth does not appear.

We do not think that the commissioners were bound to accept these wholesale statements as absolutely true, but had aright to judge for themselves. If the relator desired to impeach their judgment it had ample opportunity in this proceeding by evidence to show that the valuation of the respondents was erroneous, and thus to have relief. If the relator’s position is correct the tax commissioners are powerless to reject a statement which they know to be false or misleading, as they have no power to call and examine witnesses before them.

The commissioners have a right to be guided by their own judgment, and in order that their action shall be reversed such judgment must be shown to be erroneous by legal evidence, and not by lump swearing by a person who is not shown to have the requisite knowledge to be a competent witness.

The writ should be dismissed, with costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Writ dismissed, with costs.


author: Yan Brunt, P. J.:

text:
    Rebecca Babbitt, Appellant, v. David S. Brown and Others, Respondents.

      Trade-mark — size and color of wrappers — similarity of names.

    A trade-mark cannot be acquired in the size and color of the wrappers of a commodity; nor in the words “Trade-mark — Best Soap.”
    The name “B. T. Butler’s” preceding the words “Trade-mark — Best Soap,” upon cakes of soap and their wrappers, is not so. similar to the name “B. T. Babbitt’s,” preceding the sfime words, as to call for the restraint of its use as an infringement of a trade-mark, in the absence of proof that anyone had been deceived thereby, and where the form and size of the cakes of soap differ.
    Appeal by the plaintiff, Rebecca Babbitt, from a judgment of the Supreme Court, dismissing the complaint upon the merits, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 15th day of March, 1891.

      R. II. McGrath, Jr., for the appellant.

      Rowland Cox, for the respondents.
   Yan Brunt, P. J.:

This action was instituted to enjoin an alleged infringement of what is designated a trade-mark, and for an accounting for profits 'and damages. The plaintiff is the successor of B. T. Babbitt, who, for many years prior to his death, carried on the business of manufacturing soap in the city of New York, and during that period manufactured an article known as B. T. Babbitt’s Best Soap. This soap was prepared for sale in cushion-shaped cakes, upon one side of which was stamped in large script letters “ B. T. Babbitt.” Immediately below that and in smaller full-faced capital letters was the word “Trade-mark,” preceded by a device known as an arrow pointing to the right, and followed by a like device pointing to the left. On the third line were the words Best Soap ” in large full-faced capital letters. Upon the opposite side of the cake were the words “ B. T. Babbitt, New York City.” These cakes were wrapped in an orange-colored wrapper, upon which appealed the same words similarly arranged, but in larger letters.

The defendants are manufacturing and selling soap made in cushion-shaped cakes of a somewhat different size and shape from the plaintiff’s. These cakes have stamped upon each face the words “ B. T. Butler’s,” occupying one line; on a second line, the word “trade-mark” preceded and followed by a device known as an arrow; and on the third line the words “ Best Soap ; ” and wrapped in an orange-colored paper of about the same size as that of the plaintiff’s, but differing in general appearance, and the printing thereon being dissimilar, with $ie exception of the words “ Trademark— Best Soap.” No proof whatever was offered upon the trial that any person had been deceived into buying the soap of the defendants, supposing it was that of the plaintiff.

Upon these facts, we fail to see liow it was possible to sustain an injunction against the defendants.

In the case of Enoch Morgans Sons Co. v. Troxell (89 N. Y. 292), it was expressly held that a party cannot acquire a trade-mark simply in the form and color of the package, or the manner in which it is wrapped, and that mere general resemblance forms no ground for interference, as the products of dealers can be distinguished only by the brands, marks or names which may be put upon them, and these can be protected as trade-marks only as far as they are new and comply with the other conditions necessary to constitute a trade-mark. When there is a simulation of a trade-mark, and the intent becomes a subject of inquiry, the form, color and general appearance of the packages may be material, but to sustain an action there must be an • imitation of something that can legally be appropriated as a trade-mark.

When we apply these rules to the case at bar, and it being et>needed that no trade-mark can be acquired in the words “ Trademark — Best Soap,” no matter what type they may be printed in, there seems to be nothing upon which to found a claim of an infringement of any trade-mark owned by the plaintiff. As already suggested, tlie cakes were of different size and different form, tlie only words in common upon tliem being the words Trademark — Best Soap; ” and these are the only words in common upon the wrapper. The only resemblance seems to be in the size and color of the wrappers, and in such size and color, as already suggested, the plaintiff cannot acquire a trade-mark.

As was said in Richardson & Boynton Co. v. Richardson & Morgan Co. (27 N. Y. St. Repr. 808), “ In cases of this description each contains features peculiar to itself, and the right to relief depends rather on questions of fact than on questions of law. Tlje rule which governs adjudications in respect to questions such as that presented by the case at bar is reasonably plain, and it is distinctly held that such a similarity of names as is likely to produce confusion in the minds of ordinary unsuspecting persons, will be restrained. Therefore, the question involved in this case is, was there such a similarity of names? We might indulge in speculation in reference to the likelihood of confusion arising from similarity of these names in the conduct of business, and that such similarity was calculated to deceive and impose upon the public and upon the purchasers of goods of the character in which the parties to this action were accustomed to deal. But the most satisfactory evidence in reference to the results likely to follow from alleged similarity is evidence of actual cases in which such deception and imposition has occurred.”

Applying these suggestions to the case at bar, it appears that there is no proof that anybody has been deceived, and we cannot see that there is any likelihood of' anybody being deceived. Any acquaintance with the particular characteristics of the wrappers and form of the cakes of the plaintiff’s merchandise would at once detect the difference, if an attempt was made to impose upon purchasers the defendants’ merchandise.

We think the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Ingraham, J,:

text:
    Francis H. Weeks and Another, as Executors, etc., of Elizabeth S. Maitland, Deceased, Respondents, v. Frederic B. Esler, Appellant.

      Promissory note made by a corporation — seal affixed — proof essential to change a negotiable instrument to a specialty.

    Before an instrument in the form of a promissory note, made by a corporation, with wfiat purports to be the seal of the corporation impressed thereon, but containing no words indicating an intention to execute it as an instrument under seal, can be held to be a specialty and not a negotiable promissory note, it must be shown that the seal is the seal of the corporation and was affixed by its authority, and that it was the intention of the parties to the instrument that it should be an instrument under seal and not negotiable.
    Appeal by the defendant, Frederic B. Esler, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 18th day of January, 1893, upon a verdict in favor of the plaintiffs rendered by direction of the court at the New York Circuit, and from an order entered on the 17th day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the amount of two promissory notes indorsed by the defendant. The notes were substantially the same except as to dáte of payment, and were otherwise in the following form:
    “ $4,000. November Twenty-first, 1890.
    “ Thirty days after date The Electric Power Company promise to pay to the order of Frederic B. Esler four thousand ^¡- dollars at 1229 Leiper street, Philadelphia, Pennsylvania, without defalcation, value received.”

      William H. Pa/nd, Jr., for the appellant.

      George Holmes, for the respondents.
   Ingraham, J,:

The single question presented in this case is, whether or not the two instruments sued on were promissory notes, or, in consequence of the impression upon the paper of what appears to be the seal of the corporation making the notes, became specialties, and thus lost their negotiable character ?

The instruments are set forth in full in the complaint and are substantially the same, except that one is payable thirty days after date and the other sixty days after date. Each is in the form of a promissory note, whereby the Electric Power Company promised to pay to the order of the defendant $4,000, and is signed by Frederic B. Esler, president, and F. A. Lee, treasurer. At the lower left-hand corner of each of these instruments there was impressed upon the paper the following words: The Electric Power Company, Incorporated, Seal, 1889.” There is no recital in the instrument that the seal of the company is affixed, nor is there any evidence to show that what was thus impressed upon them was in fact such seal, that the instruments were intended to be under seal, that they were in fact sealed with the seal of the company, or that said seal was impressed on them by its officers, or anyone else with authority of the corporation. There was absolutely no evidence, either from the instruments themselves, or from witnesses produced on the trial, to show that the seal of the company was ever impressed upon the instruments by authority of the company, or that it ever was the intention of the corporation to make the instruments, or either of them, a sealed instrument.

Without some evidence of the fact of sealing, or that it was the seal of the company that was impressed upon the instruments, we think the court would not have been justified in holding as a matter of law that the instruments were under seal. To justify the execution of a contract by a corporation, it must appear that the corporation lias authorized the person assuming to act for it in the execution of the instrument to execute it in the manner and form in which it was executed. In this case it is not shown that either the president or treasurer had any authority to use the seal of this corporation in the execution of those instruments, nor that as a fact the seal of the company was so used. In the case of an individual who executes an instrument with a seal upon it at the time of its execution, it is assumed that he adopts the seal then upon it as his own, and this is especially true where the instrument ends with the words, “ Witness my hand and seal.” But in the case of a corporation, where its seal can only be used with the authority of the corporation, and especially in the absence of any words in the contract indicating an intention to execute the contract as an instrument under seal, before the instrument can be held to be a specialty there must be evidence to show that the seal affixed was the seal of the corporation and was affixed with its authority.

In all the cases cited by appellant in which the instrument was held to be a sealed instrument, either the instrument itself recited that the parties had thereunto set their hands and seals, or words of similar import, or the fact was proved that such seal was affixed by authority of' the corporation executing the paper, or was in fact its seal. Thus in the case of Coe v. Cayuga Lake R. Co. (8 Fed. Rep. 537), Blatohford, J., in delivering the opinion of the court says : “ The instruments, aside from the seal of the company, have all the qualities of promissory notes, and of promissory notes made by the company as a corporation. They are in the name of the company, it promises to pay, and it signs them by its president. But they were sealed with the seal of the company, and it was a corporation; and said seal was duly impressed on them by its president and treasurer, by its authority, at the time the notes were signed by it. From what appears in the bill of exceptions, it may properly be inferred that the seal referred to was the corporate seal of the corporation, and that the words, ‘ Seal of the Cayuga Lake Railroad Company,’ appear impressed on the face of each instrument as the impression of the seal referred to, though these facts are not thus distinctly stated in the bill of exceptions.”

It will thus be seen that, in the case last cited, the evidence that is lacking in this case was before the court, i. <?., that the seal of the corporation was affixed to the instrument in question by its authority.

In the case of Mercer County v. Hacket (1 Wall. 83), the Supreme Court of the United States expressly held that the addition of a seal to corporation bonds, payable to bearer, does not change tlieir character as negotiable instruments; and this rule, we think, should be followed, unless it clearly appears, either from the instrument itself, or from evidence upon the trial, that it was the intention of tlie parties to tlie instrument that it should be an instrument under seal and not negotiable.

We think, therefore, the court was justified in holding that these were not sealed instruments.

There was no request to submit the question as to whether or not the corporation had as a fact affixed- its seal to these instruments. Each side moved for a direction of a verdict, and the parties, therefore, agreed to submit any disputed question of fact to the decision of the judge, and we agree with the court below in its determination that the instruments iii question were not under seal, and that the plaintiffs were entitled to a verdict.

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

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

Judgment affirmed, with costs.


text:
    Teresa Coughlin, Plaintiff, v. James Fay, as Executor, etc., and Others, Defendants.

      Submission upon agreed facts — infants.
    A general guardian lias no power to submit a cause of action either on behalf of or against an infant, so as to give the court jurisdiction to adjudicate upon the rights of the infant.
    An attempted submission of a controversy upon an agreed statement of facts.

      G. Strauss, for the plaintiff.

      D. Daly, for the defendant.
   Per Curiam :

Upon an examination of the papers contained in this submission, it appears that there is an attempt to affect the rights of infants by such submission, and to make such infants parties to such submission by the action of their general guardians.

We are aware of no way in which the court can acquire jurisdiction of infants except by action brought on behalf of the infant by a guardian ad litem, or by the service of a summons as prescribed by the Code upon the infant. A general guardian has no power to submit a cause of action either on behalf of or against an infant, so as to give the court jurisdiction to adjudicate upon the rights of the infant. This attempted submission must, therefore, be dismissed.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Submission dismissed.


text:
    Jeanie E. Maddock, Respondent, v. George Steel, Appellant.

      Agreement to become partners, to mold fictitious pa/rtnership names — copartnership cfeated, irrespective of interest in the business.

    Where parties, for the purpose of avoiding the penalties of the statute preventing the transaction of business in the name of a person who is not interested in the business, agree between themselves that they are partners, one of them cannot thereafter come into a court of equity and claim that, because the interest of the other in the business was not sufficient, therefore, no partnership existed.
    When parties have so agreed to become partners, they are partners, and one of them, without regard to his interest in the business, may bring and maintain an action to wind up the aifairs of the copartnership, and is entitled to the protection of the court, in order that the copartnership property may be applied to the payment of liabilities to third parties, for which he is liable by reason of being a partner.
    Appeal by the defendant, George Steel, 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 21th day of February, 1893, continuing an injunction and appointing a receiver of the assets of Haddock & Steel pendente lite.

      Andrew W. .Kent, for the appellant.

      Frederick W. Jlinriehs, for the respondent.
   Per Curiam :

This action is brought to wind up the aifairs of the firm of Haddock & Steel, the plaintiff claiming that she, together with the defendant, composed said firm. The only question presented here is, whether the relation of partners existed between the plaintiff and defendant, so that she, the plaintiff, might maintain this action.

It appears that prior to September 1, 1889, one Henry Haddock had been carrying on business in the city of New York, and upon said date an agreement was entered into between tbe said Henry Haddock and George Steel, who had been a clerk of Haddock’s prior to that time, looking to a continuation of tbe business by said George Steel, and tbe use by him of tbe name of Haddock, either alone or jointly with bis own name, one of tbe objects of such continuation plainly being tbe keeping of said business in existence until one Sidney Haddock, a son of Henry Haddock, should become of age, which would occur on tbe 26th of January, 1893. After-providing for tbe continuation, for tbe contribution of capital, by the agreement Steel agreed to employ said Sidney Haddock' in tbe business from tbe 1st day of January, 1890, and to pay him for bis services sums of money equal to one-half of tbe net profits, after deducting interest on capital at six per cent per annum, which profits should be determined yearly, and to admit him as an equal partner on tbe 26th of January, 1893, upon bis contributing to tbe capital a sum in cash equal in amount to that contributed by Steel, and then standing to bis credit on tbe books.

Steel thereupon continued said business, using tbe name of Haddock, and on tbe 20th of December, 1889, it being discovered that it was improper to use tbe name of Haddock in tbe style of tbe firm in tbe abseAce of a partner by that name, on said date an additional agreement was entered into between Henry Haddock and George Steel, in which agreement Jeanie E. Haddock joined. This agreement was to tbe following effect:

“ Whereas, It is tbe desire of tbe parties to the foregoing agreement (referring to tbe agreement of September 1, 1889) that the business therein set forth shall be conducted under tbe name of Haddock & Steel; and Whereas, It is doubtful whether tbe name of Haddock can be legally used until Sidney Haddock attains bis-majority and becomes a partner in 1893 ;

“ And whereas, Jeanie E. Haddock, wife of Henry Haddock, has consented to become a partner in tbe meantime;

Now, therefore, for tbe purpose of enabling George Steel to carry on tbe business under tbe name of Haddock & Steel, Jeanie E. Haddock is hereby constituted a partner under said agreement until January 26, 1893, and lier interest is hereby declared to be one-half of tbe compensation provided in said agreement to be paid to tbe said Sidney Haddock.”

The business was thereupon carried on under 'the name of Maddoclc & Steel, and it being claimed upon the part of the plaintiff that the defendant, George Steel, was seeking to gain control of the business ahd assets, to her exclusion and to her pecuniary prejudice, this action was brought.

Upon the part of the apjjellant it is urged that the plaintiff in this action had no sncli interest in the partnership business as gave her the rights of a partner. But in our opinion, the question as to the right of the plaintiff to maintain this action does not depend upon the interest that she may have in the assets of this copartnership, but it does* depend upon the fact as to whether the relation existing between herself and Steel was that of copartners. This rests upon what was agreed between these partners. For the purpose of avoiding the penalties of the statute preventing the use of the names of partners who were not interested in the business, this subsequent agreement was made, as appears upon its face, and business was conducted under it. Now, after the parties have agreed between themselves, for the purpose of avoiding a prohibition contained in a statute, that they are partners, certainly they cannot come into a court of equity and claim that because the interest was not sufficient, therefore, no copartnership existed. All these questions of interest which have been discussed in numerous cases have arisen where it was necessary to determine, not whether tlie parties actually agreed to become partners, but whether by having such an interest they did not become partners by the mere fact of the interest which they had in the business of the copartnership.

We think, therefore, that these parties, having agreed to become partners for the purpose of complying with the statute, were partners, and that the plaintiff became liable for the debts of this business to third parties, and she lias a right to the protection of the court in order that the copartnership property shall be applied to the payment of those liabilities for which she is jointly liable with her copartner Steel.

The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., and Ingraham, J.

Order affirmed, with ten dollars costs and disbursements.